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April 1st, 2008 at 3:45 pm
Too bad it’s not just April first when fools express the above sentiment.
April 1st, 2008 at 5:26 pm
The title of the post reminded me that I was disturbed as to how little I recall the Court actually using the phrase “shall not be infringed.”
It automatically got into procedures for carving out exceptions to rights guaranteed by other amendments, but I believe that the 2A is the only one which says that the rights guaranteed under it “shall not be infringed.”
Thus, Breyer or Stevens’ suggestion that a handgun ban in a city with a high crime rate is a reasonable restriction.
Scalia (God bless him) corrected whoever made the ridiculous pronouncement by stating that the crime rate was all the more reason to permit people to protect themselves with the most readily available weapon for that purpose.
But I am hopeful that the majority will focus, after establishing that the 2A guarantees an individual right, on the narrow restrictions permitted under the “shall not be infringed” language.
April 1st, 2008 at 11:22 pm
The first amendment says “shall make no law restricting”. That’s as strict, if not more strict, than ‘shall not be infringed’. The courts will still allow restrictions on the right to freedom of speech, religion, and assembly, albeit fairly limited ones.
To be honest, I don’t think that’s a bad thing. While I’m almost GOA-esque on castrating those on our side who said stupid shit, I can deal with a court system that allows restrictions that don’t get too invasive. A court system that really lets no restrictions on the RKBA is not going to help the average Joe much, and it’s just going to encourage those trying to snuff the right through other viewpoints.
April 2nd, 2008 at 7:08 am
Chris, there was some discussion about the “infringed” part, where Gura nearly scored an own-goal by conceding that “shall not be infringed” really means “shall not be unreasonably infringed.” Justice Scalia saved him from himself by pointing out that the appropriate thing to say is that reasonable restrictions are not infringements at all. Not sure that the GOA crowd will like that any better, but sensible people will, e.g., everyone knows that fair use of a copyrighted material does not “infringe” the copyright, even if it really pisses off its owner.
Gattsuru, I agree that “restrict” is a far more restrictive term than “infringe,” the latter meaning, essentially “destroy.” It’s a cognate of “frangible,” think what happens to frangible bullets when they hit a wall. Any law (such as DC’s) that does to your right to bear arms what a brick wall does to a frangible bullet is a clear infringement. Anything short of that is at least debatable. On the other hand, if the First Amendment were construed hyper-literally, all restrictions on any speech (including falsely yelling “fire” in a crowded theater, or a Mob don ordering a hit on someone) would be unconstitutional per se.
April 2nd, 2008 at 9:41 am
Technically speaking, the “shouting fire falsely in a crowded theater” rule is no longer in play, and hasn’t been since 1969. Sorry for picking nits, but it’s a major irritation to me.
I think, just as the other poster was overstating the meaning of infringe, that you’re understating it, xrlq. You can, for example, infringe on another individual’s copyright by reproducing a single picture or small portion of speech, which I wouldn’t exactly portray as smashing the copyright to bits. It takes more than slightly stepping on the edges, under fair use, but not that far of a step from that.
April 2nd, 2008 at 10:06 am
Thanks for the input.
I knew that the Justices briefly alluded to the infringement issue, but I didn’t think it got much discussion.
Maybe that is a good thing, gattsuru.
April 2nd, 2008 at 9:09 pm
Gattsuru, do you have a cite to the 1969 case to which you refer? Dicta notwithstanding, I’m pretty sure the Supremes have never actually heard a case where the asserted right was to falsely yell “fire” in a crowded theater.
As to “infringement” I agree that the copyright analogy only goes so far. “Infringement” can mean something much broader in one context than another, both because copyright laws have been amended more recently, after the broader definition of infringe (encroach) had largely supplanted the older one (destroy), and because such amendments have consistently moved in the direction of giving copyright holders everything they want. At some point, a copyright may become such a hypersensitive right that merely thinking about a copyrighted work may be deemed to “infringe” it. But that’s another thread.