Infringed?

[driftpin]

Has the US Supreme court or a lower court ever DEFINED what the word "Infringed" means in the Second Amendment?

If not, has it been defined i any lower court?

It really p's me off that Mass residents can't own certain types of firearms.

The real pieces of doo-doo named Scott Harshbarger, Ted Kennedy, John Kerry pulled an end run around the 2nd Amendment by instituting laws for firearms through the Consumer Product Safety Act.

This to me seems to be infringement if there ever was a definition.

If I remeber correctly Kennedy tried to do this in the 70's and was shot down.

 

[Car Knocker]

The Second Amendment only applies to the federal government, not state governments.

 

[General Geoff]

Going by the dictionary definition, any law that mentions firearms is an infringement.

However the modern court system (ever since the civil war, in fact) seems to not care if rights are infringed upon if the infringements are "reasonable."

 

[green country shooter]

In the Heller case the Supreme Court said that banning an entire class of weapon was an infringement, but certain other restrictions were not. So we're going to see some further litigation on that very idea.

 

[stampsm]

this wont bear much in the way of force until the 2nd is incorporated. the federal government did not infringe on the rights to "bear" or "keep" any type of firearm until 86 they just taxed the hell out of them. you might be able to get the registry reopened by suing on the basis of infringement of firearms developed and manufactured after 1986. that would get the word defied by the courts and possibly the ability to register new machine guns back.

 

[Loosedhorse]

The Second Amendment only applies to the federal government, not state governments.

We shall see. Your talking about the "incorporation" question. The suits that will decide this (in Chicago and its neighboring suburbs) are moving forward.

Never understood the incorporation debate: you're saying that if a state law allows people to be put in jail if they refuse to incriminate themselves, or allows searches without due process, or refuses to give women the vote, then the affected citizens have NO APPEAL to the federal courts?

Or you're saying that amendments passed AFTER the 14th Amendment are affected by its "incorporation" clause, and so apply to the states, but those passed before it don't count?

Or you're saying that SOME of the Bill of Rights applies to the states, and not others, and there's this super-secret formula to tell us which ones count, but only legal-eagle constitutional scholars who know where to rub the lemon juice on the Bill of Rights can find out the clues, while people like US are too [whatever] to figure it out.

I understand that no SCOTUS decision has as yet "decided" that incorporation applies the 2A. I view that with the same arguments I heard a year ago that no SCOTUS decision has affirmed an individual's RIGHT to keep and bear arms--true, but by what legitimate, logical, non-fairy tale legal theory could it be argued that the RKBA does not apply to citizens, and if it does, then ONLY if their state agrees? That of ALL the Bill of Rights, this is the amendment to exempt from incorporation?

Don't get it. This is an appeal for education.

 

[ConstitutionCowboy]

I don't give a rat's pittooty what the Court might want to do along the lines of "defining" what 'infringe' means. The Court has no authority to define words.

Any definition of any word in the Constitution other than what the word meant back in 1787 is an alteration of - read as an amendment of - the Constitution. The only way the Constitution can be altered - read as amended - is via the processes outlined in Article V of the Constitution.

I'm very happy to say that five members of the Supreme Court concur. In DC v. Heller, the Court relied upon the definition of such words as 'arms', 'keep', and 'bear' contemporary to the period in which the Constitution was written. The Court relied upon contemporary dictionaries such as Samuel Johnson's Dictionary, Fourth Edition, 1773, and others.

I would expect the Court to do the same should any question arise concerning the definition of 'infringe'.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[ConstitutionCowboy]

Going by the dictionary definition, any law that mentions firearms is an infringement.

'Tis true if you limit the infringements to the scope of the Second Amendment. Nothing prohibits state governments from making reasonable restrictions upon the use of arms.

Woody

 

[driftpin]

I just read through the incorporation doctrine, the due process clause and Gitlow vs. New York and have to say that I am really confused as to where the SCOTUS outlined what amendments and parts of amendments shall apply and shall not apply to the states. I have to say I am more confused than before.:banghead:

 

[Car Knocker]

Loosedhorse: Here is a brief and necessarily simplified discourse on the 14th Amendment. More may be found at the link.

"Nearly all of the rights in the Bill of Rights have been applied to the states by way of the Due Process Clause of the Fourteenth Amendment, under what's known as the incorporation doctrine. As a result, the Fourteenth Amendment not only empowered the federal courts to intervene in this area to enforce the guarantee of due process and the equal protection of the laws but to import the substantive rights of free speech, freedom of religion, protection from unreasonable searches and cruel and unusual punishment, and other limitations on governmental power. At the present, the Supreme Court has held that the Due Process Clause incorporates all of the substantive protections of the First, Fourth, Sixth, and Eighth Amendments and all of the Fifth Amendment other than the requirement that any criminal prosecution must follow a grand jury indictment, but none of the provisions of the Seventh Amendment relating to civil trials. Thus, the Court has also greatly expanded the reach of procedural due process, requiring some sort of hearing before the government may terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits."

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

 

[NonConformist]

Car Knocker

The Second Amendment only applies to the federal government, not state governments.

Wrong, the 10th says that any right not enumerated in the BoR belongs to the state, or the people. Since the 2A is very clearly enumerated in the BoR states cannot supercede it and thats why permit requirements etc are a blatant violation of the 2A

The FF wouldnt have thrown off tyranny via force of arms just to put in place a means for government, state or federal, to violate those very rights they used to free this nation

Now how states have gotten away w/ it otherwise is beyond me

 

[stampsm]

what i want to see next is first having the 2nd incorporated to make it apply without question to the state and federal level. then a challenge to define infringed where a weapon or class of weapon is restricted and the "keep" and "bear" of it is infringed on it based on a date of manufacture.
this would destroy the notion of pre-ban where they could restrict something because of an arbitrary date. it could also be cause to overturn laws that restrict new possession of something by showing that current owners have something and you are only restricted because of a date of manufacture/possession. it could also be used as a way to force the MG registry to be reopened. and also keep the fed gov from infringing our rights to "keep" and "bear" by instituting overbearing taxes on said firearms. the first thing they would try to do if the registry was forced open would be to increase the tax to a level comparable to a inflation adjusted rate of the tax amount from 1934.
if you look at inflation 200$ in 1934 is equal to about $3,269.94 of today's money according to this gov website
http://data.bls.gov/cgi-bin/cpicalc.pl

 

[yenchisks]

Didn't they swore a Oath to the constitution?

 

[driftpin]

So did Ruth Ginburg and Sandra day O'connor

NONCONFORMIST: I do believe you helped make sense of this debauckle for me. Thank you all.

 

[yokel]

The FF wouldnt have thrown off tyranny via force of arms just to put in place a means for government, state or federal, to violate those very rights they used to free this nation

Now how states have gotten away w/ it otherwise is beyond me

The legislature is prone to dabble in any subject they deem fair game for their “legal” wrangling, but they rarely pay any attention to what subjects the Constitution authorizes them to “lawfully” legislate upon. Since legislative authority is delegated only to the legislature, complying with bureaucratically created regulations makes one complicit in such “unlawful” schemes. And then there's all manner of judicial doctrines, rules, procedures, and unwritten policies which sadly defy lawful, moral, ethical and even legal principles.

Unbridaled government is the result of compliance and complicity.

But for those who prefer the easy path of compliance, you may continue in your complicity -- until total compliance with an oppressive, intrusive beast government is the only option you have left. Under absolute tyranny, non-compliance is not an option.

 

[TEDDY]

2nd

SCOTUS ruled in 1986??that the gov had a right to take over the NG.which was considered a state org. however in 1935?the NG was incorperated into the army as a reserve component.
as to gun control it started out as a way to prevent "undisirables"from protecting themselves from the thugs in control.also to disarm the negroes who were feared by the white former owners.in NY tamany hall wanted and did put in gun laws to prevent the opposition from protecting themselves from the taminy thugs.
Mass put the permit on hand guns law in in 1906.that I know as I had a permit in ww2.
the people are at fault as no one ever questioned the legislatures right? to enact gun laws. if some one had questioned it then second thoughts might have mad a difference.
former resident of Mass.excaped in 2000.
I bought a 1873 win. in Burmingham AL in 1945.took it to memphis on bus and on train from Memphis to Boston. no one questioned me or said a thing.now look where we are. sheep going to slaughter.

 

[hugh damright]

by what legitimate, logical, non-fairy tale legal theory could it be argued that the RKBA does not apply to citizens, and if it does, then ONLY if their state agrees? That of ALL the Bill of Rights, this is the amendment to exempt from incorporation?

I am really confused as to where the SCOTUS outlined what amendments and parts of amendments shall apply and shall not apply to the states

First off, I think the question is not whether the RKBA applies to citizens, but rather what federal protection there is for the RKBA. It's not as if something has to be federally protected to be a "right". Quite the contrary, I don't believe that a limited federal government can be "protector of rights", because it is too broad and general a power, and can only result in subverting the federal government into a national government, consolidating/destroying the States and our constituted federal system. The Framers warned us that the only possible result will be despotism i.e. incorporation can only result in despotism. But I digress ...

In my view, incorporation is judicial activism which began in the 1930's, and the reason the Second Amendment has not been incorporated is because they haven't had the right case since then. I don't think they have decided to incorporate some of the USBOR and rejected the Second Amendment, but rather I think we are still in a state of transition and they just haven't gotten to the Second Amendment yet. We now have some activist lawyers creating designer cases intended to hand the SCOTUS the right case on a silver platter.

Offhand, I am not aware that the SCOTUS has ever taken a case and used it to go through the USBOR and say which amendment will be incorporated and which will not be, I don't think a single case would require that the whole USBOR be incorporated, and so they proceed one amendment at a time. However, I believe that the general doctrine is that the 14th's "due process" clause empowers the federal government with jurisdiction over fundamental rights (fabrication imo). If a case involves a fundamental right that is enumerated in the USBOR, then we have "incorporation" of that amendment. For example, the SCOTUS might get a RKBA case and rule that there is a fundamental and thus federally protected right to keep a loaded firearm in the home, and that would incorporate that aspect of the RKBA ... and yet they might get another RKBA case and rule that there is no fundamental right to carry a concealed weapon and that the States are sovereign i.e. the final authority when it comes to concealed weapons ... I am not sure that incorporation of one aspect of the RKBA results in incorporation of all aspects, and I think that everybody has their own idea of what incorporation of the Second Amendment would mean.

As for the OP, I think that what shall not be infringed is the right of the people of each State i.e Virginians to keep arms and to collectively use them to exercise our authority over our own State. At the same time, if Virginians want to ban concealed carry or deny the RKBA to violent felons or have gun free school zones, then that is our right. There seems to be a tendency to construe the term "shall not be infringed" to mean that the personal RKBA is a perfect right, but I think that is farfetched.

 

[SCKimberFan]

The Second Amendment only applies to the federal government, not state governments.

The 2A applies to United States Citizens, not the federal government!

WE THE PEOPLE...

 

[daniel1113]

The 2A applies to United States Citizens, not the federal government!

WE THE PEOPLE..

Partially correct. The constitution restricts the power of the federal government. It outlines the powers that We the People grant to the federal government, not the rights that are reserved for the People (however, many are mentioned in the process of limiting the government). The most interesting and perhaps most applicable line other than the 2nd amendment is the following:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

If the right of the people to keep and bear arms shall not be infringed by the federal government, it seems laughable that the same can be done by a state. Especially considering that the right to keep and bear arms is simply recognized by the Constitution as a preexisting right.

 

[stampsm]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

so in effect this clause already restricts the states to obey the constitution and all amendments. to many people focus on the amendments and not the original text.

and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

basically read as the judges(law) in the states shall be bound to obey the supreme law which "which shall be made in Pursuance thereof" to the constitution, and the constitution, and treaties made under the authority of the United States (which is still bound by the constitution) and any thing in the constitutions or laws of the states that are contrary are not with standing (aka void).

so if the 2nd say we have a right to arms as the heller case said then the states have to obey also.

 

[stampsm]

now i see why lawyers are paid so much, gave me a headache just reading that section

 

[daniel1113]

now i see why lawyers are paid so much, gave me a headache just reading that section

Hehe... indeed. The nice thing about reading the Constitution is that one doesn't need to reference any other texts to understand it, whereas almost every legal document you find today will feature hundreds of references to other law texts. That makes things REALLY difficult to read.

 

[brickeyee]

Until the 14th amendment the Bill of Rights was strictly applied against ONLY the Federal government.

The 14th:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No one shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" creates the issue.

What are the "privileges or immunities of citizens" called out here?

It doe NOT say 'the rights recognized in the Bill of Rights' are the "privileges or immunities."

The Supreme Court adopted the incorporation doctrine under the due process clause to define the "privileges or immunities."

 

[hugh damright]

The supremacy clause does not make the USBOR binding upon the States. If the Second Amendment said that no State shall infringe on the RKBA, then that would be binding, but it says no such thing. And if the US government was wholly national then the USBOR would naturally be binding nationally, but the US Constitution frames a limited federal government, and the USBOR was intended to limit only the government framed by the US Constitution.

 

[yinyangdc]

But, Hugh, it also does not say "Congress shall make no law infringing on the RKBA", so by not limiting which entity is not able to infringe, it means NO entity can infringe.
When the Constitution (including amendments) means the states, it says states, when it means Congress, it says Congress, when it means people, it says people. When it means Congress and states, it doesn't say "Congress and states", it just says "RIGHTS OF THE PEOPLE" "SHALL NOT BE INFRINGED"