The Bill of Rights: How It Protects You, Amendment by Amendment

Rights the people already hold

Lawtopolis publishes this discussion for informational and educational purposes, and as an exercise of the freedoms of speech, press, assembly, belief and religion protected by the First Amendment. It sets out what each statute and decision says and what courts have done with it. It is not legal advice and does not recommend any course of action.

The Bill of Rights does not grant rights. It forbids the government from infringing them. The Declaration of Independence describes rights as “unalienable,” and the Ninth Amendment confirms that listing some rights does not deny others.

Ten of twelve proposed amendments were ratified by three-fourths of the state legislatures on December 15, 1791 (National Archives).

The First Amendment: religion, speech, press, assembly and petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

U.S. Const. amend. I

Speech that advocates ideas — including unpopular legal and political theories — is protected. The Court held in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), that government may not punish advocacy “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Freedom of association is protected too: “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty'” protected by the Fourteenth Amendment (NAACP v. Alabama, 357 U.S. 449, 460 (1958)).

Amendments Two through Eight

• Second: the right of the people to keep and bear arms (applies to the states, McDonald v. City of Chicago, 2010).
• Third: no quartering of soldiers in a house in peacetime without the owner’s consent.
• Fourth: security against unreasonable searches and seizures; warrants require probable cause, an oath and particular description.
• Fifth: grand jury indictment for serious federal crimes, protection against double jeopardy and self-incrimination, due process, and just compensation for property taken for public use.
• Sixth: a speedy and public trial by an impartial jury, notice of the charges, confrontation of witnesses, compulsory process and counsel. State convictions for serious crimes require a unanimous jury (Ramos v. Louisiana, 2020).
• Seventh: jury trial in federal civil suits at common law over twenty dollars.
• Eighth: no excessive bail, excessive fines or cruel and unusual punishment (the Excessive Fines Clause applies to the states, Timbs v. Indiana, 2019).

The Ninth and Tenth Amendments

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

Griswold v. Connecticut, 381 U.S. 479, 488 (1965) (Goldberg, J., concurring)

The Tenth Amendment reserves powers not delegated to the United States “to the States respectively, or to the people.” The Court enforces it through the anti-commandeering rule: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers … to administer or enforce a federal regulatory program” (Printz v. United States, 521 U.S. 898, 935 (1997)).

How the Bill of Rights came to apply to the states

As written, the Bill of Rights limited only the federal government. After the Fourteenth Amendment, the Supreme Court gradually held that most of its guarantees also bind the states through the Due Process Clause — a process called incorporation. Landmark steps include Gitlow v. New York (1925, free speech), Cantwell v. Connecticut (1940, free exercise of religion), Duncan v. Louisiana (1968, criminal jury trial), McDonald v. City of Chicago (2010, right to bear arms) and Timbs v. Indiana (2019, excessive fines).

A few guarantees have not been applied to the states by the Supreme Court: the grand jury requirement (Hurtado v. California, 1884), the Seventh Amendment civil jury (Minneapolis & St. Louis R. Co. v. Bombolis, 1916) and the Third Amendment, which the Second Circuit applied to the states in Engblom v. Carey (1982).

How to check the Bill of Rights claim yourself

If someone offers you a strategy built on Bill of Rights, ask for the court decisions that accepted it. In the decisions cited on this page, courts did not accept it. Instead, read the real statute or rule the claim cites, and then read how courts have applied it. Also, look at the cases listed above. They show what happens when people raise the argument in court. For a real dispute, talk to a licensed attorney in your state. You can start with our directory.

Sources and further reading

Official sources used on this page:

• archives.gov
• law.cornell.edu
• static.case.law
• static.case.law
• static.case.law

Related reading on Lawtopolis:

• Sovereignty of the People: Chisholm, Yick Wo, Perry and the Supremacy of the Constitution
• The Administrative Procedure Act, the Fifth Amendment and Due Process of Law
• The Hierarchy of Law: From Natural Rights to the Constitution, Statutes, Regulations and the UCC