Selective Incorporation & Fundamental Rights Forum

[TTT_Student_1L]

I've got a kind of complicated question, but I think I am confusing myself more than anything.
So, the 14th Amendment was passed in response to slavery and to arguably curb the power of states to limit individual's liberty. The 14th Amendment includes the Privileges and Immunities Clause, Due Process and Equal Protection Clause.

So in Slaughterhouse, the Court ruled that the P&I Clause only applied to federal rights under citizenship, so it basically didn't protect individuals in states.
Now we have Due Process. Prior to the 14th Amendment the Court ruled that the Bill of Rights only applied to the federal government in Barron v. Baltimore. However, the Court has selectively incorporated amendments such as the 2nd Amendment in the Heller/McDonald cases.

Under substantive due process, I have in my notes that the Court uses strict scrutiny when the state is burdening fundamental personal rights. So this means that if the Court incorporates an amendment, like the 2nd Amendment, then that right becomes fundamental and is subject to strict scrutiny? is this right???
Secondly, I have in my notes a rough framework of analysis that our professor used. He said to determine whether a right is fundamental we should look to whether it is expressly enumerated, then whether its essential to liberty/deeply rooted, and finally to whether it fits into the penumbra/zone of privacy. When he said to look to whether it is expressly enumerated, he meant only those Amendments that have been selectively incorporated right??? I may be reading way too deep into this but this has confused me quite a bit.

[Mr.Throwback]

(1) Yes, 2nd amendment right is a fundamental right (Mcdonald)

(2) When deciding whether a right is fundamental you typically look to:
- Precedent
- History/Tradition
-Contemporary Attitudes
- Political Philosophizing
SCOTUS used these methods in various (maybe all) the SDP cases.

The enumerated rights are the Bill of Rights.

The penumbra test was used once (Griswold) and was never used again. It's irrelevant.

HOWEVER, if your prof gave you a different test to use, you might want to do that.

[MsAvocadoPit]

I've got a kind of complicated question, but I think I am confusing myself more than anything.
So, the 14th Amendment was passed in response to slavery and to arguably curb the power of states to limit individual's liberty. The 14th Amendment includes the Privileges and Immunities Clause, Due Process and Equal Protection Clause.

So in Slaughterhouse, the Court ruled that the P&I Clause only applied to federal rights under citizenship, so it basically didn't protect individuals in states.
Now we have Due Process. Prior to the 14th Amendment the Court ruled that the Bill of Rights only applied to the federal government in Barron v. Baltimore. However, the Court has selectively incorporated amendments such as the 2nd Amendment in the Heller/McDonald cases.

Under substantive due process, I have in my notes that the Court uses strict scrutiny when the state is burdening fundamental personal rights. So this means that if the Court incorporates an amendment, like the 2nd Amendment, then that right becomes fundamental and is subject to strict scrutiny? is this right???
Secondly, I have in my notes a rough framework of analysis that our professor used. He said to determine whether a right is fundamental we should look to whether it is expressly enumerated, then whether its essential to liberty/deeply rooted, and finally to whether it fits into the penumbra/zone of privacy. When he said to look to whether it is expressly enumerated, he meant only those Amendments that have been selectively incorporated right??? I may be reading way too deep into this but this has confused me quite a bit.

1) Yes - Bill of Rights are incorporated through the Due Process Clause of the Fourteenth Amendment now. These are enumerated rights.


Just make sure to have your AND/OR correct:
14th Amendment: Privileges OR Immunities
Art. IV: Priv. AND Immunities - no state shall discrim. against citizens based on state residency.

2) The developing standard for when denial of the right amounted to a violation of the Due Process Clause of the 14th amendment:

(1) the right is of the very essence of our scheme of ordered liberty (very important)
(2) whether it is so rooted in the traditions and conscience of our people to be ranked as fundamental (rooted in America's history or traditions)

The applicable standard of scrutiny for fundamental rights (unenumerated too)
Strict Scrutiny - highest available: presumed unconstitutional
To be constitutional, the government must establish:
(1) the state interest supporting the law is compelling and
(2) that law is narrowly tailored (or necessary) to accomplish that objective