Even after McDonald v. Chicago extended the right to keep and bear arms to the states, a handful of provisions remain unincorporated, including the seventh Amendment right to trial by jury.

The First Circuit, in reversing a Puerto Rico court, stated that nothing in McDonald should cast doubt on the fact the 7th Amendment remains unincorporated.

Nor, despite the district court’s insinuation otherwise, did the Supreme Court expressly overrule that precedent in McDonald v. City of Chicago, 561 U.S. 742 (2010). See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls.”) Indeed, neither time the McDonald court referenced the Seventh Amendment did it purport to overrule any prior case.

The Court first considered the Seventh Amendment issue in McDonald by benignly stating: “[o]nly a handful of the Bill of Rights protections remain unincorporated.” McDonald, 561 U.S. at 765. Admittedly, the footnote attached to that statement remarked “[o]ur governing decisions regarding . . . the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation.” Id. at 765 n.13. However, such a purely factual statement does not compel the conclusion that the precedent is somehow overruled. 

The Court’s second reference to the Seventh Amendment is perhaps more telling. In discussing its trend towards a “total incorporation” theory, it noted that a fundamental right will be fully binding on the states “unless stare decisis counsels otherwise.” Id. at 784. The Court inserted a footnote at the end of that statement, wherein it explicitly referenced the grand jury clause of the Fifth Amendment and the civil jury requirement of the Seventh Amendment. Id. at 784 n.30. Although the Court acknowledged a trend of expanding the scope of incorporated rights, it also clarified — by referencing the principle of stare decisis — that its Seventh Amendment incorporation cases are still binding.

As such, the district court erred in suggesting that McDonald overruled the prior Seventh Amendment decisions.