Talk:Second Amendment to the United States Constitution - Definition

Infringed

I would like to see an explanation on how the following is consistent with the pro-gun argument.

up until the National Firearms Act of 1934, there was no Federal law against ordinary Americans' owning any weapons available anywhere, including anything the US military used, such as tanks, artillery, bombs and even high-explosives. No licenses and no registration were required.

Most people on both sides agree that so-called "Weapons of Mass Destruction" (i.e., biological, chemical and nuclear weapons) cannot have any legitimate purpose in the hands of individuals and that even in non-hostile hands these weapons pose a serious threat due to the risk of even simple accidents during storage or transport. As such, most agree that even the broad protections of the Second Amendment for the right to keep and bear arms do not apply to "WMD's".

I would say it is because infringed means "destroyed" or "removed" and not "abridged" and not "encroached upon". Yet I hear repeatedly from those opposing gun control the Slippery slope argument that no restrictions should be allowed.

Note that the 1828 dictionary definition of "infringe (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe)" does not have any meaning synonymous with "encroach" -- only with "destroy"

--JimWae 01:13, 2004 Dec 8 (UTC)

A comment has been added to the Semantic issues section. It gives a citation for usage of the term infringed, but the term is not there. This is perhaps the best place to take a discussion of the topic.

• Infringe is not used in that citation. Without it, what basis is there for the claim that it means the same as today? {Further, even today infringe has 2 meanings, one of which is not encroachment, but breaking.} Violation is used twice (in citation), once in regard to promises & then regarding the rebels violating the rules. Where's the connection to infringing a right?
• The Constitution has no rhetoric about "natural rights" & its stance is more consistent with "social contract" theory than "natural rights" theory. Or at least, to say the Constitution is based on "natural rights" needs some demonstration not given in new comments.
• if someone can find an old instance of infringe with the meaning of encroachment, such would provide some reason for keeping the comments recently added - otherwise they seem specious.

--JimWae 09:23, 2004 Dec 20 (UTC)

Articles of Confederation

...of some relevance, certainly not decisive though

Article VI

... No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. ...

--JimWae 01:18, 2004 Dec 15 (UTC)

Punctuation

The comma is there in the constitution - removing it removes much of the ambiguity that resides in the amendment, and changes the meaning. Please make sure the punctuation matches what's really in the constitution.

It might be interesting to provide links from (or to) the second amendment and the Gun Control issue.

I restored the version with the commas exactly as they appear in the manuscript at the national archives. Yes, the US GPO actually reprints it with more modernized punctuation, but since there are so many pedantic asses out there who like to prattle on about what a comma here or there means, it's important that we be historically accurate even if our own government printing office isn't. --LDC

The External Link is, in my opinion, misleadingly described. The link is to a polemic which does include some quotes, in the main only tangentially relevant, from founding fathers.

I would simply delete the link but, recognizing this is a hot area, thought I would ask first.

I moved the bit about the punctuation to the bottom. To my knowledge, no reputable scholars consider this to be an important issue at all (but correct me with cites if I'm wrong) and I think we looked sort of silly for putting it right up front. I believe that arguing about the punctuation is in the realm of crackpot legal theory, not something that the courts or anyone else serious really cares about.

At the present time, the article is a touch misleading on the issue of 14th Amendment incorporation. The Supreme Court case with the language that suggests that the Amendment is only a bar to Federal action was decided before most modern incorporation jurisprudence. Since that time, the Court has decided that the 14th Amendment does mean that most of the rest of the Bill of Rights applies to states, and it's difficult to sustain the argument that it's still "good law". I am not sure how to fix it, though. Katahon 22:42, 25 Mar 2004 (UTC)

Appears to be leaning towards arms control.

This article needs to do away with two views. The Second Amendment means the right of the people, the individual rights to bear arms. This article in its current forms does not cite the founding fathers intentions. There are no records of the founding fathers ever advocating a state's rights view, or any view controlling access to military arms.

The founding fathers were clear on this issue. "well regulated" in their day meant well-trained, well-armed, and well-equipped. The right of the people means the same in the second amendment as it does in the first. To say that "the people" has a different meaning here is to say that the first amendment only protects a state's right to free speech.

RIGHT (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=right) PEOPLE (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=people) KEEP (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=keep) BEAR (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=bear) ARMS (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=arms) SHALL (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=shall) NOT (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=not) BE (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=be) INFRINGE (http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_d:/inetpub/wwwroot/cgi-bin/webster/web1828=infringe)

These common words above are conveniently linked right to their definitions in Webster's 1828 dictionary. Also see what militia means: MILITIA ACT (http://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=2279)

How do you know what the founding fathers meant? Have you asked them?

In the 18th C most Englishmen carried a gun or sword. Nowadays even our policemen are not armed - they don't need to be. We have a peaceful society with a low homicide rate and a virtually zero gun homicide rate.

Seriously, there IS a debate about what they meant and how relevant this amendment is to the 21st century America. Both points of view need to be stated. Exile

As I understand it, America had no state army when the Ammendment was made and this was originally one of the ideals of America that it would be a peaceful nation, with no permenant standing army, perhaps a reaction against the constant war among European nations (how times have changed!). However, it was obviously necessary that America would be able to defend itself if it came under attack - therefore it ensured that its citizens would be well armed, and if an attack was made then they could form a temporary army to fight off the invasion and then disband again when the threat had gone. Therefore the right to bear arms was only a precaution in case of war, it was not meant to refer to people carrying and using guns in peacetime. --Cap 18:18, 10 Sep 2004 (UTC)

• That line of reasoning doesn't make much sense because it completely ignores the need for self-defense which is necessary in peacetime as well. Mdchachi|Talk 22:47, 8 Nov 2004 (UTC)

• Mdchachi makes a good point above. Cap, are you certain all future military leaders of our standing army will be benevolent?

Copyright Infringement?

The intro text was clearly copied from http://supreme.paxtv.findlaw.com/constitution/amendment02/ although modified somewhat. Perhaps it should be reworded so that it not such an obvious copy?

I have addressed the issue, and have also reformatted the article like all the articles on Articles (e.g. Article Three of the United States Constitution) and First Amendment to the United States Constitution.) -- Emsworth 22:31, Jun 4, 2004 (UTC)

The second amendment is in place as a check against the power of the government. It creates a scenario where every citizen could possibly own a weapon. If the government were to become gradually more and more tyrannical, as Zarconnen says above, a system would be in place that would allow for the oppressed to fight back. Now the idea that a couple of guys with pistols are going to take on the US Military is, when considered in that way, ridiculous.

But what if a majority of the population united to rebel against the tyrannical government. In this situation it can be reasoned that many members of the offical military will rebel right along with the rest of the people. Actually I think it's likely that a higher percentage of military personnel would fight the people's fight. When viewed this way, it's not quite so ridiculous. Not only will there be many trained soldiers to help fight the rebellion but the official military force would be significantly weakened by the dissention.

I believe it is entirely feasible to overthrow a government. At least one that is sufficiently corrupt to incite such a major rebellion. If you don't believe that, pick up a history book and turn to page 1776!

No offense to my Brit buddies.

Someone should mention how limited this admendment has become. If this was interperated as widely as the first admendment, computer virus would be protected, as well as pipe bombs.

... and nuclear weapons...

The Bill of Rights addressed the concerns of those opposed to a strong central Govenrment

For an excellent overview of the history and evolution of the Second Amendment, read "That Every Man Be Armed" by Stephen Halbrook, particularly Chapter 3 pages 76-87, in which James Madison's original proposed amendments are discussed, along with the different House and Senate versions. The exact wording, like everything Congress does, was a compromise. There is also a linguistic analysis of the wording, which predates the American Revolution and has it's roots in the seventeenth century English Bill of Rights.

What is remarkable about the passage of the American Bill of Rights is that no one argued against the concept of an individual right to keep and bear arms; most of the debate on the Second Amendment centered around whether the militia clause was necessary, or if it were necessary, just how it should be worded. Other debate centered around whether it was even necessary to have a Bill of Rights, either because it could never list all the rights freemen possesed, or that such rights were too fundamental to ever be taken away. The Ninth and Tenth Amendments summed up the argument: the Federal government was only allowed to do what the Constitution said it could do, all other rights were reserved to the people, or to the States.

The argument about the meaning of the words "the people" is not insignificant. In the Bill of rights, the phrase is used in the First, Second, Fourth, Ninth, and Tenth Amendments. It is not logical, and highly improbable, that the founding fathers meant to alter the meaning of "the people" from one amendment to the next. The belief that a militia was preferable to a standing army to defend the nation led to the argument that, as long as the free citizenry were armed, there would be no need for a standing army. However, it can not be logically argued that, if the militia is not necessary, then the people have no right to keep and bear arms.

Finally, as a side point, the Forteenth Amendment prohibits the States from denying "the people" any rights guaranteed to United States citizens by the Constitution. Thus, individual States are not supposed to pass laws that infringe the individual right of the people to keep and bear arms. As a matter of fact, it was in large part due to some southern states disarming the negro population after the Civil War that the Forteenth Amendment was proposed and passed. No Supreme Court case since has has found that "the people" do not have a protected, fundamental right to keep and bear arms, and only in some cases does the state and federal government have the right to place reasonable restrictions on that right.

• Some amendments mention the State. 2nd amendment mentions both the State & the people.
• Keeping in mind that not all rights are enumerated, there could still be a right to self-protection even if the 2nd amendment were found to apply only to militia.
• I suppose there are some groups advocating disarmament; there are also some groups suggesting the 2nd amendment is there to ensure people (or a State militia) have the means to start an insurrection against the federal government. The battleground is in the middle ground -- over gun control. Is gun control true infringement, or is opposition to gun control mostly concern over some slippery slope? --JimWae 18:06, 2004 Dec 18 (UTC)

Fourteenth Amendment

Are there any references to the legal theory by which some Amendments are, via the Fourteenth Amendment, presumed to restrain States as well as the Federal government while others are presumed to restrain the Federal government alone? The Second Amendment appears to be unique in that States are allowed to "infringe" in ways that the Federal government is not. What's the legal theory (not ruling) that leads to this distinction for the Second Amendment? Jim Bowery 01:58, 29 Dec 2004 (UTC)

• It's seems to me there's a strong case to be made that by including the mention of State militia in 2nd amendment, that only the state governments can infringe (fracture) any right to keep & bear arms (as long as due process is followed)
• Still, however, that does not prevent federal laws from abridging such a right --JimWae 07:35, 2005 Feb 3 (UTC)

Infringe Definition

The distinction you allude to doesn't seem to be supported by the 1828 Webster's definition. The primary definition is "to break, as contracts". One breaks a contract by failing to perform some, not all of its conditions, and there is no evidence that this definition was different in 1828.

The other definitions also support the idea that abridgement is a form of infringement, particularly, "to transgress" and "to hinder"

• I gather you are adressing my point. "Breaking a right" & "abridging a right" are clearly different. Your right to free speech is abridged but not broken when laws are enacted against libel, slander, inciting riot & yelling fire needlessly. I am liking "fracture" as a synonym more & more.

I'll agree

3. To destroy or hinder; as, to infringe efficacy. [Little used.]

is more of a problem, but find "hinder a right" a very rare expression -- and note it is listed under the same meaning as destroy. Notice example given is in connection with hindering an benefit.

The semantic issue remains, because there are 2 distinct meanings (removal or denial, & abridgement). The 1828 dictionary points to a preponderance of one meaning over the other at that time - denial.

Regarding your point of "breaking some not all parts of a contract", you seem to be begging the question what all parts of "right to keep & bear arms" would be. Are you proposing 2nd amendment is uniquely absolute & NO abridgements are allowed? Several SCOTUS's have clearly permitted abridgements.

--JimWae 21:26, 2004 Dec 31 (UTC)

An Addition

Presser v. Illinois (sometime in the 1870s) should be added, it said that wargames etc by private citizens were illegal because those involved weren't part of the militia.

Needs discussion of Silveira v. Lockyer

Emerson is no longer the latest federal court ruling on the issue. The entry needs a discussion of the Ninth Circuit's decision in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002).

"Examples," etc.

These examples, I believe, should be worked into the historical discussion. (Also, the fact that these examples constitute their own section—i.e., the emphasis given them—is a subtle, or perhaps none-too-subtle, form of bias.) I shall alter their position soon, if no one objects. Hydriotaphia 07:24, Feb 7, 2005 (UTC)