Deck 10: The Bill of Rights and the Second Amendment

Question 1

Of the provisions of the Bill of Rights listed below, which one has never been incorporated into the Fourteenth Amendment? _____

A) Grand Jury Clause (Fifth Amendment)
B) Double Jeopardy Clause (Fifth Amendment)
C) Assistance of Counsel Clause (Sixth Amendment)
D) Cruel and Unusual Punishments Clause (Eighth Amendment)

Answer 1

A

Question 2

What was the first provision in the Bill of Rights to be applied to the states by way of the Fourteenth Amendment? _____

A) freedom of speech (First Amendment)
B) free exercise of religion (First Amendment)
C) just compensation for property seized for public use (Fifth Amendment)
D) searches and seizures (Fourth Amendment)

Answer 2

C

Question 3

What is the most recent provision of the Bill of Rights to be applied to the states? ____

A) Confrontation Clause (Sixth Amendment)
B) right to bear arms (Second Amendment)
C) jury trial in certain civil cases (Seventh Amendment)
D) none of the above

Answer 3

B

Question 4

Who wrote the majority opinion in McDonald v. City of Chicago? ____

A) Justice Kagan
B) Justice Alito
C) Chief Justice Roberts
D) Justice Souter

Question 5

What previous ruling did the Court in McDonald v. City of Chicago expressly decline to revisit and/or to reconsider? _____

A) District of Columbia v. Heller
B) Lochner v. New York
C) Slaughterhouse Cases
D) Munn v. Illinois

Question 6

District of Columbia v. Heller involved ____.

A) the commerce clause
B) the due process clause
C) the Second Amendment
D) the Third Amendment

Question 7

_____ wrote the principal dissent in District of Columbia v. Heller.

A) Justice Scalia
B) Justice Stevens
C) Chief Justice Roberts
D) Justice Thomas

Question 8

In his exchange of letters with James Madison, Thomas Jefferson mentioned the absence of ______ as something he did not like about the proposed Constitution.

A) a right of privacy
B) protections for the states
C) a bill of rights
D) a congressional veto over state laws

Question 9

In the exchange of letters between James Madison and Thomas Jefferson, Madison considered "the danger of oppression" coming from ____.

A) the executive
B) the legislature
C) the states
D) wherever the real power in a government lies

Question 10

The ______ doctrine originated in Palko v. Connecticut (1937).

A) total incorporation
B) selective incorporation
C) ordered liberty
D) none of the above

Question 11

The decision in Timbs v. Indiana (2019) involved

A) free speech
B) the Second Amendment
C) police searches
D) civil forfeiture

Question 12

What question did District of Columbia v. Heller (2008) answer? What question(s) did it leave unanswered?

Question 13

In Duncan v. Louisiana what values were in conflict? What values seemed most important for White? For Harlan?

Question 14

What use did Frank Palko try to make of the Fourteenth Amendment that is different from the Amendment's use by the litigants in the Slaughterhouse Cases and Lochner?

Question 15

What does section one of the Fourteenth Amendment mean? Is the Fourteenth Amendment "equal" to the Bill of Rights? Is it "less than" the Bill of Rights? Is it "more than" the Bill of Rights? What reasons can you offer to support your answer?

Question 16

Given the changes in the Supreme Court's work wrought by the "revolution" of 1937, what is the significance of decisions like Duncan for the American political system?
6. 6. Is nationalization of the Bill of Rights an example of amendment-by-judiciary in operation? Discuss.

Question 17

Juxtaposed to the majority positions in Palko and Adamson, what significant methodological change does Duncan represent in determining those provisions of the Bill of Rights subsumed under the Fourteenth Amendment?

Question 18

How might the Court have used McDonald to revisit Slaughterhouse Cases?

Question 19

What theory of incorporation does Justice Black advance in Adamson?

Question 20

Is Black's position in Adamson consistent with his position in Duncan? Why?

Question 21

In the exchange of letters between Thomas Jefferson and James Madison in 1787-1789 regarding the desirability of a bill of rights in the proposed Constitution, what was the argument in favor of a bill of rights that Jefferson stressed, that he believed Madison had overlooked? Explain. Hint: it is the same argument Madison employed when he introduced a series of bill-of-rights amendments in the First Congress.

Question 22

In Duncan v. Louisiana (1968), the majority opinion of Justice White, the concurring opinion of Justice Black, and the dissenting opinion of Justice Harlan represent three distinct methodologies for deciding which provisions of the Bill of Rights are to be applied to the states via the Fourteenth Amendment. Explain.

Question 23

Consider Justice Hugo Black's dissenting opinion in Adamson v. California (1947), his dissenting opinion in Katz v. United States (1967), and his concurring opinion in Duncan v. Louisiana (1968). What do these opinions reveal about Justice Black's approach to constitutional interpretation and about his views concerning the proper role for the Supreme Court in the American political system?

Question 24

Is the Fourteenth Amendment equal to or the same as the Bill of Rights? Is it less than the Bill of Rights? Can it even be more than the Bill of Rights? What suggested answers to these questions do you find in the three opinions filed in Duncan v. Louisiana (1968) by Justice White (for the majority), Justice Black (concurring) and Justice Harlan (II) (dissenting)?

Question 25

In the exchange of letters between Thomas Jefferson and James Madison in 1787-1789 over the desirability of, or need for, a bill of rights, Jefferson writes: "In the arguments in favor of a declaration of rights, you omit one which has great weight with me…." What is the argument that carried such "great weight" with Jefferson? To what degree is Jefferson's point consistent with Justice Stone's Footnote Four in United States v. Carolene Products Co. (1938)? Explain.

Question 26

How do Palko v. Connecticut and Adamson v. California illustrate both the "old double standard" and the "fair trial rule"?

Question 27

What would have been the practical legal and policy consequences for the United States in the late 1940s had Justice Black persuaded one more justice to join his opinion in Adamson v. California?