The word "infringed" in the context of the Second Amendment

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orpington

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First, before I begin, I know that we focus on the way things are, not the way I want them to be. Having said that, this arises from a discussion I had recently with a friend over at the VFW.

Let's start with the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

And, the definition of infringe: https://www.merriam-webster.com/dictionary/infringe

Again, I get it that the way things are are the way they are independent of what I would like, but based on the wording of the Second Amendment and the definition of infringe, aren't things like a background check, completing a Form 4473, etc, considered to be infringement of sorts and, therefore, unconstitutional, based on the wording of the second amendment?

I cannot take credit for this idea, my friend has been troubled by it, I should think, maybe decades by now, but it seems that his thought process has at least some merit???
 
Bill Clinton famously replied to a question, under oath:

"That depends on what your definition of 'is' is."

In the case of the right to keep and bear arms, it depends on the courts' interpretation the Second Amendment and specifically "infringed". There is a goodly body of jurisprudence and precedent around the subject.
 
My Oxford American Dictionary defines "INFRINGE" as 1.) To intrude into or onto, or 2.) To diminish. Other dictionaries give definitions similar to Meriam Webster's in the OP's link.
As DocRock infers, what a court has said will stand as precedent.
For myself, all I can say is that if politicians/courts and American dictionaries can diverge greatly on the meaning of a word then I can only wonder how I'm supposed to believe our right to keep and bear arms can be preserved simply by words on a paper. I believe it was Judge Learned Hand who quiped, "If the Constitution is to mean whatever we want at the time, why then, a written document?"
 
orpington said:
based on the wording of the Second Amendment and the definition of infringe, aren't things like a background check, completing a Form 4473, etc, considered to be infringement of sorts and, therefore, unconstitutional, based on the wording of the second amendment?
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Why yes, it would. Words mean things.
 
orpington said:
....And, the definition of infringe: https://www.merriam-webster.com/dictionary/infringe

Again, I get it that the way things are are the way they are independent of what I would like, but based on the wording of the Second Amendment and the definition of infringe, aren't things like a background check, completing a Form 4473, etc, considered to be infringement of sorts and, therefore, unconstitutional, based on the wording of the second amendment?...
Click to expand...

If you can't support your contentions with citation to relevant, directly applicable, primary legal authority:
...Primary authorities are the rules of law that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions. They are generated by legislatures, courts, and administrative agencies.....
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there's nothing to discuss. What the Constitution means and how it applies is not your (or my) call.

In the Constitution itself the Founding Fathers authorized the federal courts (including the Supreme Court) to decide questions concerning the meaning and application of the Constitution (Constitution of the United States, Article III, Sections 1 and 2):
Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...
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The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.....
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See also Madison in Federalist No. 39:
....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....
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And Hamilton in Federalist No. 78:
.......If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ....
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And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined:

[1] As the Supreme Court said in Brown v. State of Maryland, 25 U.S. 419 (1827), at 437:
...It has been truly said, that the presumption is in favour of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality...
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[2] And much more recently in U.S. v Morrison, 529 U.S. 598 (2000), at 605:
....Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577_578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. ..." other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....
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There's an intellectual curiosity in that "infringe" is not often used in the Bill of rights. But, that is a curiosity, only.
As our Frank has pointed out before, limitations on rights 'enshrined' in the Bill of Rights are accepted, and normal.
 
Armybrat said:
Ignorant? How so? you said the 13th & 14th changed things.
The 2nd can be changed the same way, just like the rest of them.
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The 13th and 14th were constitutional amendments. Subsequent amendments can overturn/modify earlier amendments. Laws can't.
 
So how does "A well regulated militia" fall into the scheme of things? Aren't regulations a form of infringement by definition?
 
Laphroaig said:
So how does "A well regulated militia" fall into the scheme of things? Aren't regulations a form of infringement by definition?
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Let me expand a bit on my response in post 16.

Regulation of Constitutionally Protected Rights.

  • In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases. The uncertainty here is that Second Amendment jurisprudence is at its formative stage, and therefore the constitutional limits to the regulation of the RKBA are not at present well defined.

  • Even though the Second Amendment now is a limit on federal and state power to exercise its police powers with respect to the regulation of the RKBA, it's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

  • For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
    1. Various laws (both state and federal) prohibiting such things as false advertising, fraud or misrepresentation. There are also state and federal laws requiring certain disclosures in connection with various transactions, which are valid and routinely enforced even though such laws do impinge on the freedom of speech.

    2. If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.

    3. Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
      • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
        ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...
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        • Cf. McCullen v. Coakley (U. S. Supreme Court, No. 12–1168, 2014)


        • In McCullen the Court struck down a new Massachusetts "buffer zone" law. As noted in the opinion the Court had previously sustained a different sort of buffer zone law in Colorado, and nothing in McCullen casts any doubt on the continued validity of the Colorado law (McCullen, slip opinion at 2):
          ….The statute [the prior Massachusetts law] was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado, 530 U. S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v. Reilly, 386 F. 3d 45 (2004) (McGuire II), cert. denied, 544 U. S. 974 (2005); McGuire v. Reilly, 260 F. 3d 36 (2001) (McGuire I).

          By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000 statute as inadequate.....
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      • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
        ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...
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    4. In the leading case on prior restraint (Near v. State of Minnesota, Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

      But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
      ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...
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    5. In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

  • So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

  • We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.
 
There are and have been bans on certain kinds of ammunition and that word does not exist in the second amendment. Waiting for the to go there,
 
orpington said:
First, before I begin, I know that we focus on the way things are, not the way I want them to be. Having said that, this arises from a discussion I had recently with a friend over at the VFW.

Let's start with the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

And, the definition of infringe: https://www.merriam-webster.com/dictionary/infringe

Again, I get it that the way things are are the way they are independent of what I would like, but based on the wording of the Second Amendment and the definition of infringe, aren't things like a background check, completing a Form 4473, etc, considered to be infringement of sorts and, therefore, unconstitutional, based on the wording of the second amendment?

I cannot take credit for this idea, my friend has been troubled by it, I should think, maybe decades by now, but it seems that his thought process has at least some merit???
Click to expand...
The answer is yes
 
Frank Ettin said:
Ah, no. See post 5.
Click to expand...

I don't deny some of these more modern references and happenings have changed the way things are looked at today but I respectfully I disagree when it comes to all these listed references and more modern ones in regards to how they affect the founders original intent of the 2nd Amendment.

When they wrote "the right to keep and bear arms shall not be infringed" I feel they meant infringed to mean absolutely do not encroach on that right. There are too many other exchanges of comments from the founders at the time and some in the federalist papers that show their feeling towards the people's right to arms. They wrote the 2nd amendment so short and to the point and feel they had no intent that the right could be violated with newly written laws because they would have known that laws could violate the right just as the King just had tried to do leading up to the recent revolution they just fought.

If they had intended on those first amendments to be able to be changed or modified based on changing laws or interpretations then what was their point? Actually they also made it clear to their point in the heading. "in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government"

Note the use of the word declaratory, meaning to declare, declare meaning to make a determination, official, explicit. No there is no question to what the original founders meant. It doesn't take a law student to read plain english and look up definitions of words. The 2nd amendment has been infringed on for the past century or more in regards to the founders intent.
 
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There's a dichotomy here. The RKBA side has cleaved to a "No means No" ideological purity that cannot be supported in law. Which is due to the nature of law, and humans, all that entails.
All Amendments, even the Bill of Rights, have "infringements" (even that pesky, under-tested 3rd).
The Framers would have recognized any number of limitations upon the BOR, in both the general and the specific.

Perhaps, had the word "unduly" been inserted before "infringed" things might have been different. The Framers would have understood infringements like not allowing drunkards or the incompetent free range with weapons, that armories ought be locked up and secured, protected from loss or mischief.

We accept limitations on all sorts of things, and only upon the 2nd do we impose a purity that is not achievable. Now, have the infringements become burdensome, unwieldy, onerous? Many will agree on this point. Not all, as evidenced by the laws and regulations we object to.
 
Cowhide Cliff said:
I don't deny some of these more modern references and happenings have changed the way things are looked at today but I respectfully I disagree when it comes to all these listed references and more modern ones in regards to how they affect the founders original intent of the 2nd Amendment....
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But we do not discuss questions about such things as the Founders' original intent in the Legal Forum, This is not a place for philosophical discussion. This is place to discuss what the law, in real life in the real world, actually is. see the Legal Forum Guidelines:
...The Legal Forum is for the discussion of the law as it is and how the law actually applies in RKBA matters,...
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So the discussion you apparently want to have is off-topic for the Legal Forum.

Cowhide Cliff said:
.... I feel they meant infringed to mean absolutely do not encroach on that right....
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And feelings don't count. Again, see the Legal Forum Guidelines:
...Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles...
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