Justice Stevens - bye bye to the 2nd as we know it.

[JimDandy]

There is no such balancing act called for or allowed under the 2nd Amendment.

And rather than the fourth Amendment which as you adroitly point out specifically allows for reasonable searches I'd like to point to the first amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Abridging the Freedom of Speech also leaves no room for a balancing act. We have Schenk, and Holmes with his "falsely shouting fire in a crowded theatre" and the Clear and Present Danger test, until Brandenburg gave us imminent lawless action.

For the freedom to peaceably assemble we have decades of anti-communism legislation, hearings, discrimination, and on and on.

The wording for both of these rights don't appear to offer much wiggle room for a balancing act, but it's been found.

 

[Aguila Blanca]

Also, in the "plain meaning" department, there's much to be said for the fact that dictionaries reveal that in many contexts, "infringement" doesn't mean "any tiny, little thing whatsoever", but instead means "broken". So the RKBA shall not be broken, well that has a very different meaning. Can't be broken but it can be regulated, is then how it reads. In our modern, non-legal usage, 'infringement' does tend to mean "any tiny thing whatsoever", but that may not have been the case centuries ago.

To really get at what the Founders may have thought the 2nd Amendment meant, we would need to look at the definition of "infringe" from a dictionary dating to that approximate period of history. I don't have one.

I do, however, have a number of dictionaries (hey, I've earned money as a writer, I need to know words), as well as several true thesauruses (thesauri? -- not "dictionaries of synonyms"). And I can honestly say that I have never encountered any dictionary or thesaurus that equated "infringe" with "break" or "broken." Generally, "infringe" is defined as "to limit" or "to confine" or "to restrict" -- or, in rare instances, "to trespass upon."

Merriam-Webster On-line, for example (modern, of course):

in·fringe
verb \in-ˈfrinj\

: to do something that does not obey or follow (a rule, law, etc.) ( chiefly US )

: to wrongly limit or restrict (something, such as another person's rights)
in·fringedin·fring·ing
Full Definition of INFRINGE
transitive verb
1
: to encroach upon in a way that violates law or the rights of another <infringe a patent>
2
obsolete : defeat, frustrate
intransitive verb
: encroach —used with on or upon <infringe on our rights>

Oxford Dictionary On-line:

infringe
Line breaks: in|fringe
Pronunciation: /ɪnˈfrɪn(d)ʒ

/
verb (infringes, infringing, infringed)
[with object]

1. Actively break the terms of (a law, agreement, etc.): making an unauthorized copy would infringe copyright

2. Act so as to limit or undermine (something); encroach on: such widespread surveillance could infringe personal liberties [no object]: I wouldn’t infringe on his privacy

 

[Aguila Blanca]

The wording for both of these rights don't appear to offer much wiggle room for a balancing act, but it's been found.

Which again brings us back to leadcounsel and his comments about judicial mental gymnastics ...

 

[JimDandy]

Which again brings us back to leadcounsel and his comments about judicial mental gymnastics ...

Which brings us to Article III, sections 1 and 2 which tells us that to some extent that is their job. Trying to hammer philosophy of a perfect world around the jagged edges of reality.

 

[zukiphile]

Trying to hammer philosophy of a perfect world around the jagged edges of reality.

A salient feature of that reality is that no language is so clear that it cannot be willfully misconstrued. That reality isn't properly used to dismiss a fidelity to the text.

One should be able to acknowledge the reality of result oriented jurisprudence in our constitutional case law while simultaneously disapproving of it.

 

[Hugh Damright]

To really get at what the Founders may have thought the 2nd Amendment meant, we would need to look at the definition of "infringe" from a dictionary dating to that approximate period of history.

The Framers had the Bailey's and Johnson's dictionaries, both available online.

(Bailey's) INFRINGE - to break a law, custom, or privilege.

(Johnson's) INFRINGE - (1)To violate; to break laws or contracts. (2) To destroy; to hinder.

 

[JimPage]

I read this discussion and find it surprising that no one has suggested reading the statements of the men who signed on to the Constitution. Also, the Federalist Papers (as well as the anti federalist papers) provide insight. For those not familiar, the Federalist Papers and the anti Federalists did not disagree on the meaning of the second amendment.

 

[JimDandy]

The Framers had the Bailey's and Johnson's dictionaries, both available online.

(Bailey's) INFRINGE - to break a law, custom, or privilege.

(Johnson's) INFRINGE - (1)To violate; to break laws or contracts. (2) To destroy; to hinder.

And which definition, of the two, were they using? Which perspective shall we argue from? Probably from the Anti- or undecided perspective, The only definition that says you can't even graze the right to bear arms is the "hinder" part.

(Edit to Add) Johnson's ironically doesn't appear to define "hinder" but Baileys does "to hinder" as: to let, to stop, to prevent.

There have been numerous avenues where most of us, both pro- and anti-gun have been comfortable with limiting the right. I have yet to meet anyone that thinks Ted Kaczynski has a right to keep and bear arms. As such, we've decided he's not one of "the people" who have the right. I have yet to meet anyone who thinks we have a right to a 155mm gun, let alone the M687 Sarin gas shell to fire from it. So we've decided those aren't "arms".

 

[speedrrracer]

I have yet to meet anyone who thinks we have a right to a 155mm gun, let alone the M687 Sarin gas shell to fire from it. So we've decided those aren't "arms".

This logic is broken. Just because we don't have a right to some arms doesn't mean they aren't arms. We have a right to keep and bear arms, but it's not an absolute right, just as we can't yell "Fire" in a theater, yet we maintain the right to free speech, and "Fire" is clearly a word.

 

[JimDandy]

but it's not an absolute right

That's the point I was making. That some are trying to say this or that infringes. That anything infringes.

Nor is the logic broken. The logic is what is used. We don't consider indirect fire siege weapons of mass destruction arms for the purposes of the second amendment.

 

[44 AMP]

While dictionary definitions are fine, useful things, they do not, and cannot accurately define the contextual meaning of a word in all circumstances.

Dictionaries generally have some kind of preface where it is explained that they define words as found in common usage.

There are other, uncommon uses of words that are equally valid, even though you might not find the specific example in the dictionary.

I believe that "infringed" essentially means "to tread upon the edges of". I believe it comes from the fringe that borders some flags, blankets, etc., meaning something on the outer edge of...

The implication is that if you are forbidden to encroach on the edges of a right, then the core of that right will remain inviolate.

Is this what we have in the US today? No.
It's what the Founders wanted us to have, and what they believed we ought to have. That its not what we got, isn't their fault, it's ours (including all our ancestors who either allowed, or even actively worked to get us to this point).

"Well regulated" is another phrase that has multiple meanings, depending on where, and by whom it is used. In colonial times, it was often understood to mean "in proper working order", such as in a clock mechanism. If the mechanism kept proper time, it was considered "well regulated"

When the militia was mustered, if the militiamen showed up, on time, where they were supposed to, and came with their basic equipment (arm, ammo, and basic field gear) and knew the rudiments of military discipline, they were considered "well regulated"

Ask someone on the street today what "well regulated" means, and you will get a much different answer, I think.

 

[Aguila Blanca]

I have yet to meet anyone who thinks we have a right to a 155mm gun, let alone the M687 Sarin gas shell to fire from it. So we've decided those aren't "arms".

That's only because you and I have not been introduced. I happen to believe that the 2nd Amendment does include a right for me to keep (and "bear," in the sense of transport) arms such as howitzers.

Let's not forget that the colonial militia were generally privately armed. Some towns provided a central armory but each citizen was required to provide his own musket and a basic load of powder and ball. It was not unusual for the local commander to own the local cannon. In fact, in some cases the commander was elected/appointed as the commander for the very reason that he was the guy who owned the cannon.

Let's also not forget that the intent of the Founders was that the militia -- the People -- were to have arms sufficient to prevent any standing army raised by the government from being powerful enough to impose government by fiat. The only way this could be possible was (and is) if the RKBA includes the right to all arms (and armaments) an army might have.

“Who are the militia? Are they not ourselves? Congress has no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

– Tench Coxe, The Pennsylvania Gazette (February 20, 1788)

 

[JimDandy]

That's only because you and I have not been introduced. I happen to believe that the 2nd Amendment does include a right for me to keep (and "bear," in the sense of transport) arms such as howitzers.

What about that M687 Sarin Gas shell?

 

[speedrrracer]

Let's also not forget that the intent of the Founders was that the militia -- the People -- were to have arms sufficient to prevent any standing army raised by the government from being powerful enough to impose government by fiat. The only way this could be possible was (and is) if the RKBA includes the right to all arms (and armaments) an army might have.

It seems clear the Founders wanted no standing army whatsoever. We've gone away from their vision (and very few seem to mind) in that area, and in breaking part of their structured vision, we have damaged the structure, so now the pieces don't fit into place as well as they should (the 2A), and we end up with the usual legal contortions, which do damage through the ripples caused in the legal system (if you can apply contorted reasoning in one area, then you can apply it in all areas).

It will be a heckuva argument, with many cans of worms opened. Telling the current, entrenched ecosystem which is the military-industrial complex that it needs to go away (or, at least, that no more Federal money will go into it, which will have the same result, unless we allow massive exports which are currently illegal).

And of course the current "crazy teen shoots X people" escalating to "crazy teen pushes button and nukes Manhattan" is another can....

 

[JimDandy]

It seems clear the Founders wanted no standing army whatsoever.

Especially if you ignore Article II Section 8 allowing for the raising and supporting of armies, as well as the construction of hopefully staffed forts, dockyards, and other needful buildings.

Edit to Add: You'll also have to ignore that the Continental Army was never disbanded, but instead turned into the Legion Of The United States which turned into the US Army.

 

[speedrrracer]

Especially if you ignore Article II Section 8 allowing for the raising and supporting of armies,

And extra-especially if you ignore the two-year limit part, right?

 

[JimDandy]

The two year limit is on the appropriation, not the Army. Outside of about 18 months just prior to the Korean War, the First Infantry Regiment has been going since 1791. The Third Infantry Regiment active since 1784, not even the year and a half blip of the First.

 

[speedrrracer]

The two year limit is on the appropriation, not the Army

Yes of course, but I'm just surprised to hear you think the framers weren't against a standing army. I thought I'd remembered reading posts of yours where you cited some passages from the Federalist Papers and other writings of the framers which supported [how most on this forum interpret the 2A].

So I sort of assumed you'd have read their deep opposition to the existence of standing armies, and would therefore not maintain the interpretation you have.

So, there's a two year limit on appropriations. There are 3 possible reasons, imo, that a sane person could have for explaining that limit.

1) The framers intended that in the span of two years, enough money could be gathered to support a standing army for all eternity. Nobody believes this one, I hope.

2) The framers intended that the standing army be supported by money gathered in two-year chunks, and when that money ran out, another two-year chunk of fundraising would begin anew. We'll ignore the obvious flaw that the framers would never have overlooked, which is that if you only gather exactly enough to maintain the standing army in two years, then you are going to be in an eternal "raise money to support the standing army" loop, which is explicitly called out as the worst thing this side of hell in the writings of some of the framers. Worse, you raise less than enough to support the standing army in those two years, must go into debt, and you're still in the eternal "get money for the army" loop, even in peacetime?

3) The framers did not intend that a standing army ever exist, but knew that wars were part of reality, and provided a self-limited mechanism which would prevent the eternal loop of fundraising for the army, but still allow Congress to raise funds to fight wars, when necessary to defend the nation. You could raise money for two years, fight your war, if the war endured you could raise another round, etc, but when the war stopped, Congress would not get back on the 2 year treadmill, the money would therefore eventually run out, forcing the army to go away.

 

[zukiphile]

You appear to have omitted a sound policy reason for the limitation in section 8, or in the alternative you have phrased the second option in the least compelling way possible.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

This language strikes me as a protection against a large bureaucratic army, such as was well known on the continent, that would take on a life and culture of its own and make a separate and enduring claim for support, or Cromwell's then recent use of the English army to suspend Parliament. Of course, they also knew of the Roman law that forbade a general crossing the Rubicon with his army.

Requiring an army to stay on a short parliamentary leash is a reasonable compromise between those who were ideologically opposed to any army whatsoever and of those who argued for a large continental style army. That some founding fathers had an opinion on the matter of a standing army does not incorporate their objection into the plain language of section 8.

The framers were clearly aware of how to draft a prohibition.

Amendment 1 - Freedom of Religion, Press, Expression.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.





Amendment 2 - Right to Bear Arms.

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.

Amendment 3 - Quartering of Soldiers.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

That the document contains no prohibition on a standing army is the best evidence of the framers' intent.

We have a large hard to trim federal bureaucracy now, and hardly anyone says they like that. Is it so hard to believe that the framers' sought to protect against the 18th century equivalent?

 

[thallub]

Everyone who cares about their Second Amendment rights should read the Stevens dissent in the Heller decision and the Scalia rebuttal of the Stevens dissent.

http://www.law.cornell.edu/supct/html/07-290.ZS.html