[Cite as Malloy v. Hogan, 378 U.S. 1, 4 n.2 (1964). NOTE: This decision concerns self-incrimination and whether the Fifth Amendment operated against state infringments. The Court incorporated the Fifth Amendment's protection under the 14th Amendment against state infringment. The majority opinion noted that "The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases." The Court noted that, "Although many Justices have deemed the Amendment to incorporate all eight of the amendments," in a footnote refered to the Second Amendment within a list of individual rights representing "[d]ecisions that particular guarantees were not safeguarded against state action by the Privileges and Immunities Clause or other provision of the Fourteenth Amendment are Presser v. Illinois, 116 U.S. 252, 265 (Second Amendment)...." (P. 4 n.2 this page).]
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The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment's adoption in 1868. Although many Justices have deemed the Amendment to incorporate all eight of the Amendments,[4.2] the view which has thus far prevailed dates from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use.[4.3] It was on the authority of that decision that the Court said in 1908 in Twining v. New Jersey, supra, that "it is possible that some of the personal rights safeguarded by the first eight Amendments [paragraph continues next page]
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[4.2] Ten Justices have supported this view. See Gideon v. Wainwright, 372 U.S. 335, 346 (opinion of Mr. Justice Douglas). The Court expressed itself as unpersuaded to this view in In re Kemmler, 136 U.S. 436, 448-449; McElvaine v. Brush, 142 U.S. 155, 158-159; Maxwell v. Dow, 176 U.S. 581, 597-598; Twining v. New Jersey, supra, p. 96. See Spies v. Illinois, 123 U.S. 131. Decisions that particular guarantees were not safeguarded against state action by the Privileges and Immunities Clause or other provision of the Fourteenth Amendment are: United States v. Cruikshank, 92 U.S. 542, 551; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (First Amendment); Presser v. Illinois, 116 U.S. 252, 265 (Second Amendment); Weeks v. United States, 232 U.S. 383, 398 (Fourth Amendment); Hurtado v. California, 110 U.S. 516, 538 (Fifth Amendment requirement of grand jury indictments); Palko v. Connecticut, 302 U.S. 319, 328 (Fifth Amendment double jeopardy); Maxwell v. Dow, supra, at 595 (Sixth Amendment jury trial); Walker v. Sauvinet, 92 U.S. 90, 92 (Seventh Amendment jury trial); In re Kemmler, supra; McElvaine v. Brush, supra; O'Neil v. Vermont, 144 U.S. 323, 332 (Eighth Amendment prohibition against cruel and unusual punishment).
[4.3] In Barron v. Baltimore, 7 Pet. 243, decided before the adoption of the Fourteenth Amendment, Chief Justice Marshall, speaking for the Court, held that this right was not secured against state action by the Fifth Amendment's provision: "Nor shall private property be taken for public use, without just compensation."