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

Discussion in 'Legal' started by orpington, Feb 6, 2021.

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  1. orpington

    orpington Member

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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???
     
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  2. DocRock

    DocRock Member

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    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.
     
  3. Tommygunn

    Tommygunn Member

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    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?"
     
  4. jwamplerusa

    jwamplerusa Member

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    Why yes, it would. Words mean things.
     
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  5. Frank Ettin

    Frank Ettin Moderator Staff Member

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    If you can't support your contentions with citation to relevant, directly applicable, primary legal authority:
    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):

    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):

    See also Madison in Federalist No. 39:

    And Hamilton in Federalist No. 78:

    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:

    [2] And much more recently in U.S. v Morrison, 529 U.S. 598 (2000), at 605:
     
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  6. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Ah, no. See post 5.
     
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  7. lemaymiami

    lemaymiami Member

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    Once again, thanks for the clear and well stated information Frank.
     
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  8. Armybrat

    Armybrat Member

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    Well, the Dred Scott decision set a precedent.... until it didn’t.
     
  9. Frank Ettin

    Frank Ettin Moderator Staff Member

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    What an ignorant comment. Dred Scott reflected the law at the time. The Thirteenth and Fourteenth Amendments changed things.
     
  10. CapnMac

    CapnMac Member

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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.
     
  11. Armybrat

    Armybrat Member

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    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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  12. roscoe

    roscoe Member

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    The 13th and 14th were constitutional amendments. Subsequent amendments can overturn/modify earlier amendments. Laws can't.
     
  13. Armybrat

    Armybrat Member

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    Thank you, for your polite answer. :)
     
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  14. NuShootr

    NuShootr member

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    The government can do whatever they want. Unless The People make their voices heard. And here we are.
     
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  15. Laphroaig

    Laphroaig Member

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    So how does "A well regulated militia" fall into the scheme of things? Aren't regulations a form of infringement by definition?
     
  16. Frank Ettin

    Frank Ettin Moderator Staff Member

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    See post 5.
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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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:
          • 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):

        • 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:

      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):

      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.
     
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  18. bdickens

    bdickens Member

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    No.

    Not to mention "well regulated" doesn't mean what you seem to think it means.
     
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  19. rkittine

    rkittine Member

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    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,
     
  20. Insignificant bill

    Insignificant bill Member

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    The answer is yes
     
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  21. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Ah, no. See posts 5 and 17.
     
  22. Cowhide Cliff

    Cowhide Cliff Member

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    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.
     
    Last edited: Feb 9, 2021
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  23. CapnMac

    CapnMac Member

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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.
     
  24. Frank Ettin

    Frank Ettin Moderator Staff Member

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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:

    So the discussion you apparently want to have is off-topic for the Legal Forum.

    And feelings don't count. Again, see the Legal Forum Guidelines:
     
  25. bdickens

    bdickens Member

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    No, but it does take a law student to understand the legal definitions, which tend to be considerably more precise than those of common usage.
     
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