McDonald’s Other Right

Abstract:     
In June, the U.S. Supreme Court released its highly anticipated decision in McDonald v. City of Chicago, holding that the Second Amendment right to bear arms is binding on the states. Much has already been written on the case, but so far it has escaped notice that McDonald marks the incorporation of not one, but two new rights. In a footnote, the Court definitively stated for the first time that the Excessive Bail Clause of the Eighth Amendment applies to the states. This Article describes this as-yet unnoticed incorporation and speculates on why the normally-cautious Court would use a footnote in a case about a different provision of the Bill of Rights to end uncertainty over the application of the Excessive Bail Clause to the states. On the one hand, the Court has long assumed that the right was incorporated, so it may have believed that to move from an assumption to a clear holding required a very minor step, fulfilled by a footnote. A more pessimistic part of the explanation, however – and one that seems sadly reasonable – is that, as interpreted by the Court, the Excessive Bail Clause has so few teeth that its incorporation, unlike the Second Amendment’s, is a matter of minor significance.

Number of Pages in PDF File: 8

Keywords: McDonald v. City of Chicago, Incorporation, Incorporated Rights, Bill of Rights, Constitution, Excessive Bail Clause, Eighth Amendment, Bail, States, Supreme Court, Bail Reform Act Of 1984, Wiseman

Accepted Paper Series