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View Diary: States rights (135 comments)

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  •  Dangerous road to go down (none)
    Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc.

    The Constitution represents the supreme law of the land and must logically supercede State law when said law affects more than one State.

    •  No (none)
      "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc."

      These are two separate issues.  With respect to the 2nd amendment, the question is does it only prohibit the feds from restricting such a right, or does it also apply to the states.  The Bill of Rights was a check on federal power.  The Court has, generally, said that the 14th amendment protections "incorporate" those rights to make them applicable to states as well.  However, it has never said that this is a blanket rule, and given the language of well regulated militias, one can say that the 2nd amendment is not incorporated.

      As for Congress "interfering" with state laws restricting such rights, the Court has, sort of, indicated that they can't do that, because that is the province of the Courts to decide what the law is.  That was decided when the Court struck down the Religious Freedom Restoration Act.

      There's an open question as to the "enforcement" power under the 13th, 14th and 15th amendments, as to how far Congress can go in determining the scope of such protection.  But generally, the Supreme Court has said that THEY determine the scope of Constitutional protections, not Congress.

      •  Individual right (none)
        Yes, I do agree it is possible to opine that the Second Amendment is only a check on the Federal government (that is until a pure Second Amendment case comes up before the modern Court). It is  equally possible to state that it also applies to  states under the 14th Amendment. I personally feel that as an individual right, the Second Amendment deserves the same widespread protections as the other individual rights in the Constitution.

        I apologize for my miswrite on this sentence "Under that interpretation, the Feds could also not interfere with a State outlawing a religion, censoring free speech, requiring licences to print news, ban abortions, allow slavery, etc." I did not mean to imply that Congress would interfere with State laws. I meant that using the interpretation that the Constitution is only a check on the power of Federal gov't would allow the States to restrict fundamental rights (unless a specific Court ruling prevents it)

        Under this interpretation, the various state laws banning gay marriage are legal as Romer v Evans does not apply to marriages specifically. The Court declined to hear Largess v Supreme Judicial Court of the State of Massachusetts where they easily could have extended 14th Amendment protections to marriage using Romer v Evans as precedent. That they did not do this does not mean that laws against gay marriage are unconstitutional. It just means that (like many gun laws), they are not unconstitutional yet.

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