mowmer said:
FCC has the ability to regulate free speech thru the median of TV, radio, wire, satellite, cable, etc.. This goes against the very idea of the 1st amendment and what the Federal government should not be doing.
OK... I am not sure what to say to this since it doesn't make any sense to me. Are you arguing that because you feel the FCC violates the First Amendment, the federal government should not be able to stop states from violating the First Amendment? Because I do not understand how the FCC is related to the 14th Amendment. Maybe you can explain that for me.
You do understand that the FCC doesn't claim to be able to regulate these things BECAUSE of the 14th Amendment, right?
One of the issues the Federalist had with the BoR rights, was that they feared government would only see those 10 amendments as the only rights people had.
Which is why we have the 10th Amendment, which the 14th Amendment does not negate by the way. To date, being able to take drugs has not been found by any court to be one of the fundamental rights protected by the founding fathers and so it has not been protected by the Bill of Rights.
I understand, but what if the Federal government makes laws that violate or regulates a right. Which they have and do. This will force states to comply with that regulation and law.
Your argument appears to basically be "I don't agree with the way the Federal government defines rights and I would prefer that the States were able to write definitions completely different from the Federal government - which I cannot do because of the 14th Amendment."
If that is your argument - and I am not sure it is since much of what you say makes no sense to me - then we disagree about the desirability of your result; but we both know how to change it - repeal the 14th Amendment.
It does? How, by letting the Federal government decide on what a right is while forcing states to except there interpretation of a right. It allows the Federal government to regulate that right.
No. Once a right is established, neither the states nor the federal government may regulate without meeting the strict scrutiny test. The Feds do not force the states to adopt any regulation, they PREVENT the states from adopting regulations. You keep saying you understand this distinction; but then you turn around and repeat the idea that the 14th Amendment somehow confers a regulatory power on the Feds that they did not already have.
As far as the Heller case. If it had gone against gun owners, the supreme court decision by itself would have told the entire country that the 2nd was a collective right. Every state official wanting to ban guns would have started legislating for gun laws
OK, let's examine that scenario:
Prior to Heller, only Texas, Louisiana, Mississippi and Washington D.C. have an individual right to own firearms, and that right is so weak, that all the existing federal laws so far have been found to be OK. Everywhere else there is a collective right and states can pass any firearms laws they like, restricted only by their state constitutions. So let's see what happens under several different scenarios:
1. We are defeated in Heller and the dissenting opinion prevails. The Second Amendment is not incorporated through the 14th Amendment.
Results: Texas, Louisiana, Mississipi and D.C. lose whatever weak protections they had from the Federal government. States can still regulate however they want. Law stays the same everywhere else. Your state assault weapons ban is good law.
2. We are defeated in Heller and the dissenting opinion prevails. The Second Amendment IS incorporated through the 14th Amendment.
Results: Texas, Louisiana, Mississipi and D.C. lose whatever weak protections they had from the Federal government. States can still regulate however they want. Law stays the same everywhere else. Your state assault weapons ban is good law.
3. Heller majority prevails. The Second Amendment is not incorporated through the 14th Amendment.
Results: Federal law actually overturned. The Second Amendment now protects an individual right to own firearms against federal alw; but that right can be regulated out of existence at the state level if states allow it. Your state assault weapons ban is good law.
4. Heller majority prevails. The Second Amendment IS incorporated through the 14th Amendment.
Results: Federal law actually overturned. The Second Amendment now protects an individual right to own firearms in all 50 states; and neither the feds nor the states cannot pass any law that is the same or worse than the law in Heller. Your state assault weapons ban can be challenged.
Let's highlight this again:
Every state official wanting to ban guns would have started legislating for gun laws
Presuming that the state constitution allows such a ban, the only way to stop
state officials from passing gun laws is for the voters in that state to remove said officials or for the 14th Amendment to incorporate the Second Amendment. Typically, the places where firearms owners are most discriminated against are the places where they have the least voting power - this is the whole point of the Bill of Rights, to protect the unpopular minority from the majority.
But the Federal government does regulate rights and does force states to uphold IT"S decision on those rights.
Do you understand where the federal governments power to regulate comes from? It comes from the Constitution.
The Bill of Rights outlines areas the Federal government MAY NOT regulate. The 14th Amendment extends those protections to the states. By denying the protection of the Bill of Rights, it doesn't mean you also get to deny the federal power to regulate under the Constitution. You understand this right?
For example, the 1994 Assault Weapon Ban was passed under Congress's commerce clause power. The fact that the Second Amendment had not been incorporated against the states didn't stop Congress from applying this ban to the states through the Supremacy Clause. Do you get it? The 14th Amendment has nothing to do with that.