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View Full Version : Shall Not Be INFRINGED - What Did/Does "Infringe" Mean?


Not a Cook
03-23-2013, 3:58 PM
On another site I recently read a post where someone very incorrectly argued that the 2nd Amendment doesn't mean what it seems to say because the word "infringed" didn't mean the same thing when it was written that it does today. They claimed infringed had some oddball meaning that just made me scratch my head. :facepalm: Now... I am a BIG proponent of picking up the Noah Webster's 1828 "AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE" whenever someone is interested in what the words of the Constitution actually mean. The 1828 dictionary is a relatively contemperanous writing with the Constitution (it took quite a number of years for Webster to complete it), and Webster actually lived through (and gave some voice to) the Revolution and is regarded as one our "Founding Fathers". Therefore I figure it's a safe place to look to find out what any of the words in the Constitution actually mean. So here is what Webster's 1828 lists:

"INFRINGED, pp. Broken ; violated ; transgressed." (NOTE: only one definition was given for infrigned)

Just wanted to pass this along to any of you who may similarly run into discussions that claim "infringed" means something other than what it actually means, and figured not everyone has a copy of the 1828 dictionary laying around for reference.

speedrrracer
03-23-2013, 4:07 PM
That may have been what it meant in 1828, but nowadays it seems to mean nothing at all.

Carnivore
03-23-2013, 6:01 PM
I would say to him/her/it to read the Heller decision and STFU. Clearly they are an anti and will lie to make anything go their way. Remember Piers and his musket and 2a relation. Stupid people say stupid things, doesn't make it true.

David L Smith
03-23-2013, 7:27 PM
On another site I recently read a post where someone very incorrectly argued that the 2nd Amendment doesn't mean what it seems to say because the word "infringed" didn't mean the same thing when it was written that it does today. They claimed infringed had some oddball meaning that just made me scratch my head. :facepalm: Now... I am a BIG proponent of picking up the Noah Webster's 1828 "AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE" whenever someone is interested in what the words of the Constitution actually mean. The 1828 dictionary is a relatively contemperanous writing with the Constitution (it took quite a number of years for Webster to complete it), and Webster actually lived through (and gave some voice to) the Revolution and is regarded as one our "Founding Fathers". Therefore I figure it's a safe place to look to find out what any of the words in the Constitution actually mean. So here is what Webster's 1828 lists:

"INFRINGED, pp. Broken ; violated ; transgressed." (NOTE: only one definition was given for infrigned)

Just wanted to pass this along to any of you who may similarly run into discussions that claim "infringed" means something other than what it actually means, and figured not everyone has a copy of the 1828 dictionary laying around for reference.


In 1780, the use of the word "infringe" as a verb, means:

To INFRINGE ... v.a. To violate, to break laws or contracts; to destroy, to hinder.


Assuming some ambiguity in "hinder", we look that up to find:

To HINDER ... v.a. To obstruct, to stop, to impede.


Assuming some ambiguity in "obstruct", we look that up to find:

To OBSTRUCT ... v.a. To hinder, to be in the way of, to block up, to bar; to oppose, to retard.


Assuming some ambiguity in "impede", we look that up to find:

To IMPEDE ... v.a. To hinder, to let, to obstruct.

Sputnik
03-23-2013, 9:01 PM
in·fringe
/inˈfrinj/
Verb
Actively break the terms of (a law, agreement, etc.): "infringe a copyright".
Act so as to limit or undermine (something); encroach on: "infringe on his privacy".
Synonyms
violate - transgress - break - contravene - trespass


don't do that stuff ^^^^

a-mp123
03-23-2013, 10:47 PM
They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.

CDFingers
03-24-2013, 5:55 AM
I think folks should not be angry. This is an excellent question, the meaning of "to infringe."

http://www.etymonline.com/index.php?allowed_in_frame=0&search=infringe&searchmode=none

This shows the meaning 500 years ago.

I think laws violate the meaning of "to infringe" as used 500 years ago.

Now I think it means, by common usage, "to nibble around the edges of an idea".

The law still violates it.

I need a case to go to the SCOTUS that defines States Rights vis a vis the Second Amendment. Since laws on speech are pretty consistent across America, I claim that gun laws should be similarly treated.

CDFingers

Just Dave
03-24-2013, 6:22 AM
Websters 1913 dictionary- to hinder.

AK all day
03-24-2013, 6:45 AM
It simply means to limit or undermine. Both already happening.

colossians323
03-24-2013, 10:03 AM
That may have been what it meant in 1828, but nowadays it seems to mean nothing at all.

True, but the law is supposed to be interpreted by using what the concept and meaning of the words at that time meant, and this is why laws are getting so twisted by our gub ment. There is a reason the gub ment owns public education.

nastyhabts26
03-24-2013, 10:34 AM
I suppose the antis could argue that the ammendments to the constitution were put in place to have a method of changing the constitution as a need arises.
I think that that means there could be changes made to the constitution to keep up with the times we are living in.
What scares me is who is responsible for adding ammendments to the constitution and what is the procedure to do it.
We all know Politicians do not work for us.
They are not held to support what their constituants believe in.
Politicians are free to do what their own morals allow them to do regardless of what the people want, it is just icing onthe cake for them if it happens that their decisions mirror the desires of their constituants.
It is in their best interest to gain their constituants approval so that they will be able to retain their position as election time comes around.
It is in our best interest to work hard to turn the people who are undecided to our point of view, but if this is not done in a rational way those people will see us as extremists that are to be avoided and that our opinions have no merit.

Southwest Chuck
03-24-2013, 11:13 AM
Ran across this today and deals directly with this issue. I don't know anything about the author, but it was an interesting (short) read on the subject, so I thought I'd share it.
The Definition of the Word “Infringed” In The Context of The Second Amendment (http://williamthien.wordpress.com/2013/03/15/the-definition-of-the-word-infringed/)

QWi
03-24-2013, 12:00 PM
"Act so as to limit or undermine" according to a dictionary. Thus, our second amendment right is being infringed. End of story; no ifs, ands, or buts. High cap mag ban is infringing 2A, "assault weapons" ban infringes 2A, shotgun ban infringes 2A. Even CCWs and permits for firearms infringes upon 2A. In NYC, you can't own a firearm in your own home without a permit. That DEFINITELY infringes 2A.

There's such thing as letter of the law v. spirit of the law, on the other hand. I feel as if the Antis are using the "Spirit" part to their advantage.

IVC
03-24-2013, 12:32 PM
While an interesting academic topic, it's highly unlikely that the word games with "infringe" will have any effect in interpretation of the 2A.

The two main obstacles we've had with respect to wording were the interpretation of the preamble and the interpretation of "keep and bear" as a single phrase (from where we got the famous Scalia quote: It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.).

Tincon
03-24-2013, 12:37 PM
It means to encroach upon.

infringe (v.)
"to violate," from Latin infringere "to damage, break off, break, bruise," from in- "in" (see in- (2)) + frangere "to break" (see fraction). Meaning of "encroach" first recorded c.1760. Related: Infringed; infringing.

At this point however the question is which level of scrutiny courts should apply to potential violations.

Red Right Hand
03-24-2013, 12:52 PM
I think something must be wrong with my dictionary... :shrug:

infringe |inˈfrinj|
verb [ trans. ]
• To take common sense measures in order to curb gun violence : his legal rights were being infringed to protect the children
DERIVATIVES
infringement noun
infringer noun

spgripside
03-24-2013, 10:08 PM
Unfortunately, the right to keep and bear arms is not the only right being infringed by our current government.

rgraham
03-24-2013, 10:27 PM
To me, it means that it shall not be encroached upon even to the slightest degree. It must be a pretty important word with a lot of meaning. I do not believe there is any other amendment with that word added to imply the extra emphasis.

rm1911
03-24-2013, 11:12 PM
They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.

That is a troublesome word EXCEPT for the meaning. Well regulated as in regular. As opposed to irregular, uncertain, unusual. In other words it was expected you'd show up with the type and caliber in common use. Something that was regularly used. Duh!!

When they mean to have power to control they used the phrase "make laws". There was a clear difference and it would have been obvious to the authors.

That the words have different meanings today is irrelevant. Just as the fact the militia is not technically all able bodies males doesn't mean that there's no longer a 2A because it applies to militia duties.


Governors call out the Guard, not "all males capable of bearing arms". That change no more abrogates the 2A any more than does cell phone transmissions going over "public" airspace give the government right to eavesdrop. Privacy still holds and courts have held this. You privacy extends outside the home as well as in. So tell the lefties that you know maybe their precious privacy rights are open to a "modern" interpretation. Or maybe torture, you know, the whole water boarding thing!! Watch them squirm. :):):)

knucklehead0202
04-28-2013, 6:15 PM
abe lincoln killed more americans than any other president. still think he's great? there's a different way to interpret just about anything. especially given the gift of BS(gab) and being able to vote yourself pay raises, etc. many historians have spoken of the finite life of democracy and so far they've all been pretty spot-on. our country is in the dying phase of it and has elected the perfect person to lead us to our ultimate demise....R.I.P. U.S.A. occasionally the constitution gets a shout-out but for the most part seems to be "undermined" "ignored" "infringed" or downright crapped on. what can we do about it? well, not much as it turns out, but our founding fathers sure did. they haven't made men like that in recent history, mostly a bunch of pushovers.

OIFVet03
04-28-2013, 6:33 PM
That's exactly what it means. Saying it doesn't mean that anymore is just something stupid liberals say.

teetsjones
04-28-2013, 7:09 PM
As I see it, The founding Fathers found it so important they made it the Second Amendment. With the Freedom to speak out against one's government the First. The Second sure as hell backs up the first and that's what has them so worried and enacting gun control.

monk
04-28-2013, 7:09 PM
I'd figure this argument would be dead by now. SCOTUS has already said a right isn't unlimited. At least the 1st and the 2nd aren't. Which has terrifying implications for the rest of the amendments.

fiddletown
04-28-2013, 9:15 PM
Focusing on the definition of "infringed" is pretty much a pointless exercise. Here's roughly how things work:

The Founding Fathers provided in the Constitution (Article III, Sections 1 and 2):Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...


And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. 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.


And that is no doubt what the Founding Fathers would have expected. Many were lawyers. They were familiar with English Common Law (the basis of our legal system) and that for a long time it had been customary for the courts, under the Common Law and understood the exercise of judicial power in such terms.


Any gun control or gun ban law enacted by Congress or by any State is subject to judicial challenge on constitutional grounds. That thus becomes "a case arising under [the] Constitution" and thus as the Founding Fathers provided a proper subject for the exercise of the judicial powers of the federal courts.


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.


There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.


There are three prongs to the strict scrutiny test, as follows:


The regulation must be justified by a compelling governmental interest; and


The law or policy must be narrowly tailored to achieve that goal or interest; and


The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).


The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.


Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.


For example, while the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:


Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.


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 regular enforced.


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.


In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion. And if someone’s religion required the practice of human sacrifice, he can not expect to successfully hide behind the First Amendment if prosecuted for murder (or assisting a suicide if the victim were willing).

kaligaran
04-28-2013, 9:25 PM
They're focusing on the most intransigent word in the whole amendment. The most malleable is "regulated", which is open to a very different modern interpretation than originally intended.

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."


Copy/pasted from http://www.constitution.org/cons/wellregu.htm

sholling
04-28-2013, 10:42 PM
And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts. 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.
Sadly this is a common misconception held by most products of the public schools and law schools ;). NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution beyond what the words meant at the time of ratification, or the authority to grant the federal government a pass to violate the natural and constitutional rights of US citizens in furtherance of a perceived government interest, nor does it grant the court permission to put its past rulings on an authoritative pedestal above the written words of the supreme law of the land itself. Those are simply powers and conceits that the Supreme Court invented for itself early on and who's only sniff at legitimacy lay in court custom and the convenient escape that it allows for government to exceed or ignore the bounds of the US constitution. Sadly 300,000,000 Americans have been brainwashed to believe the legal fiction that whatever the Supreme Court says the constitution says is reality. I assure that even if the Supreme Court were to rule that the moon is made of green cheese - the moon would remain rocks and dirt because the green cheese ruling flies in the face of physical reality - just as the Slaughter House ruling voiding POI remains an unconstitutional ruling, as does Wickard - because they fly directly in the face of the written words of the US Constitution. Nowhere does the US Constitution say that Supreme Court precedent is the supreme law of the land, it says that the US Constitution is the supreme law of the land. Of course government has armies of police, and armies of soldiers that will enforce that fiction at gunpoint as long as the court goes along with blessing off one unconstitutional move after another that limits our rights.

It's partly because of the go along to get along nature of the court and the fiction that it is the only branch of government who's job is to enforce the US Constitution that we have congresses that rather than judge the constitutionality of proposals, instead take the spaghetti cook approach and throw every possible whacky idea into law and see what the court allows to stick. It's the job of all three braches of government to enforce the constitution. The job of the President to refuse to enforce laws that infringe on our rights, the job of congress to refuse to fund executive branch abuses of our rights, and the job of the courts to keep both in check by using its credibility with the people. That system is gone forever. The founders meant for a well armed citizenry to be the final check on all three. Not to rise up and be a mob over every little thing, but to be there for the day that congresses passes a law canceling future elections, and the president signs that bill into law, and the Supreme Court blesses it off as constitutional. Our political masters are doing their best to remove that last check on their power.

What will determine the future of our rights aren't well written briefs and beautiful arguments by lawyers, it will be the individual politics of the 9 justices and the concern of 1 or 2 of them about what the political class (http://dingodonkey.wordpress.com/2009/12/28/rasmussens-political-class/) in Washington DC and the media will think of their decision. Unfortunately, they are unlikely to take note that a ruling against us will seriously damage what little is left of their credibility with the nearly half of the country that own arms and live in red states, or take note that the Heller decision brought huge bump in their public esteem.

fiddletown
04-29-2013, 2:45 AM
Sadly this is a common misconception held by most products of the public schools and law schools ;). NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution...Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.

...Those are simply powers and conceits that the Supreme Court invented for itself early on...And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.

As noted above, the Founding Fathers in the Constitution expressly delegated the judicial power of the United States to the federal courts and expressly authorized the federal courts to exercise that judicial power in, among other things, deciding cases arising under the Constitution. Many of the Founding Fathers were lawyers and understood what the exercise of judicial power meant.


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.


And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), emphasis added:....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....


Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus they also understood the workings of the Common Law process, what the exercise of judicial power meant and entailed and how the doctrine of state decisis applies in a Common Law legal system. (And English cases continued to be cited by courts of the United States for many years after Independence.)


In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.


And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.


In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.


And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?


And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.


...Sadly 300,000,000 Americans have been brainwashed to believe the legal fiction that whatever the Supreme Court says the constitution says is reality...On the other hand the opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such things and $2.00 will get you a cup of coffee at Starbucks.


...I assure that even if the Supreme Court were to rule that the moon is made of green cheese - the moon would remain rocks and dirt ....When the Supreme Court so rules we can discuss it. Until then it's just your usual straw man argument.


...It's partly because of the go along to get along nature of the court and the fiction that it is the only branch of government who's job is to enforce the US Constitution that we have congresses that rather than judge the constitutionality of proposals,...And now you denigrate the legacy of the Founding Fathers -- The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);


Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;


Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;


A Constitution that could be changed, albeit with difficulty.

...The founders meant for a well armed citizenry to be the final check on all three...And that is your solution? History bears out is that revolution as a mechanism for promoting freedom has a really lousy track record.

To illustrate that we of course have the French Revolution. We also have the Paris Commune of 1870. How about the Russian Revolution? The Chinese Revolution that gave us Mao, perhaps? How about the ouster of Basitsa in Cuba? Pol Pot in Cambodia? Anyone know what's happening in what used to be Burma? And let's not forget Iran. Then there have been the various revolutions, often protracted, taking place with dismaying regularity in one third world country or another. The vast majority of revolutions wind up simply replacing one despot with another.

It's as if there is something inherent in the nature of a revolution that seems to most often yield a bad result. The American Revolution was unique.

...Unfortunately, they are unlikely to take note that a ruling against us will seriously damage what little is left of their credibility with the nearly half of the country that own arms and live in red states, or take note that the Heller decision brought huge bump in their public esteem.Phooey!

Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

adrenaline
04-29-2013, 5:40 AM
I'd figure this argument would be dead by now. SCOTUS has already said a right isn't unlimited. At least the 1st and the 2nd aren't. Which has terrifying implications for the rest of the amendments.I agree. You see the Heller decision shouldn't have been interpreted that way in my humble opinion. The 2nd Amendment doesn't guarantee and individual's right....the 9th Amendment would cover that.

The true intent of the 2nd Amendment was to ensure that we would have a militia (of and by the people - citizenry....not just the military) and that there would be no restrictions on the right to arms (any kind). How silly would it be to tell a fighting force that there are limitations to the arms they can bear.

Instead they say the concept of a citizen militia isn't valid today and that the 2nd Amendment really pertains to the individual. However, an individual would not NEED access to military grade weaponry....there are limitations to an individual's right. Most people would agree to that (when focusing on an individual's right). I wouldn't....and most of you gunners wouldn't....but almost all anti-gun and even some pro-gun individuals would agree that an individual would need restrictions.

LuvLRBs
04-29-2013, 6:19 AM
I hear the term "public safety necessity" a lot in conjunction with the "shall not infringe". The former seems to negate the latter, or at least as far as gun control. So I guess my constitutional question is where in the constitution is the public safety reference and how is it used?

Tyrone
04-29-2013, 7:35 AM
Focusing on the definition of "infringed" is pretty much a pointless exercise.
I disagree. The first aspect of the rulings in Heller and McDonald was to respectively focus on what the RTKBA means and whether such meaning is applicable to the states. One must first understand the meaning and scope of the right before determining whether such right is being infringed. In this regard, after defining what the right means, both Heller & McDonald were easy decisions because the right was outright denied. Under almost any definition denial of a right equates with infringement of that right. What has yet to be tested is the breadth or lack thereof of what it means to infringe upon a right. Does only mean outright denial or does it include frustration of that right similar to the "chilling effect" found unconstitutional in 1st Amdt jurisprudence. To illustrate, does limiting the amount of rounds a magazine can legally hold "infringe" on the 2nd Amdt RTKBA? Arguably such restriction does not outright deny use of an AR-15 so the antis would say no infringement. If infringement is broader than outright denial, which I believe it is by any straight-faced interpretation, limiting the amount of rounds in a magazine does arguably frustrate and limit the purpose of self-defense. By extension, with the broader definition, if a standard 30 round AR-15 magazine is seen as a key component to that firearm and a reason why citizens would purchase such firearm, restricting the magazine would arguable constitute restriction of the actual firearm. (An AR-15 with a 10 round magazine is not really an AR-15 type argument). The chilling effect comparison IMHO is huge given the onslaught of legislation, particularly in CA, whereby the real intent of the law is to dissuade, ostracize, and make as difficult as possible the exercise of 2nd Amdt rights. This has everything to do with the question of what "infringed" means in the context of the 2nd Amdt.

NOWHERE in the US Constitution do the founders grant the courts the position of supreme arbiter of what the constitution means, the power to reinterpret the meaning of the Constitution beyond what the words meant at the time of ratification, or the authority to grant the federal government a pass to violate the natural and constitutional rights of US citizens in furtherance of a perceived government interest, nor does it grant the court permission to put its past rulings on an authoritative pedestal above the written words of the supreme law of the land itself.

I do not speak for Sholling, but not only is he technically correct in terms of what is actually written in the Constitution, but he also is correct in intent and spirit as the import of the quote (at least to me) is that the Supreme Court doesn't have the right to rewrite or interpret of original meaning out of the Constitution. On the first point, the power of judicial review, is NOT found directly in the Constitution. That it is not here, however, does not mean that I do not agree with the decision of John Marshall in Marbury. Both the Federalist papers and common understanding of judicial role at the time provided for the power of judicial review. With this said, the import that I took from the quote and is actively discussed today in terms of a Living Constitution versus Original Intent, is whether the Court has power to change meanings/concepts or interpret or apply a law in such a way that it does not comport with the Constitution approve of actions as Constitutional that are beyond the reach of federal or state power. In this regard, Sholling is absolutely correct and is not "living in fantasy land."

The idea of a Living Constitution has been bastardized. It used to mean, and I agreed with the idea, that the Constitution could be amended to change with the times if necessary. In this sense it could endure forever. However, because it is intentionally by design difficult to amend, those who wish to use the govt as tool for social change were frustrated by restrictions so imposed. Thus, the term Living Constitution has now come to mean that the definitions and interpretations of the document should change as times and societies change. This is horrific and if implemented would truly mean that the Constitution has no meaning except what any particular body says at any particular time. This not only undermines the Constitution but undermines the premise of and rule of law. That we have judges that state we should be looking to other country's constitutions and interpretations (with the exception of English common and statutory law for historical context) is outrageous. Is it a reality that we have to deal with, yes. But, it is a direct affront to our liberty and system of government.

Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

This is a cynical oversimplification of the problem. Everything is not grey and there are rulings that are correct/incorrect regardless of whether one sides so wants a different conclusion. The examples of Wickard v. Filburn and the Slaughterhouse Cases are directly on point. The expansive definition of the commerce clause under Wickard is prime example of judicial activism and probably political cowering during the new deal. Similarly, the Slaughterhouse cases had the effective result of reading the Privileges and Immunities clause out of the Constitution. This simply is wrong. In this regard, Federalists that argued against including a list of rights were correct that others would try to read that list as inclusive and that everything else was up for grabs in terms of govt regulation despite the protections of the 9th and 10th Amdts.

fiddletown
04-29-2013, 8:35 AM
Focusing on the definition of "infringed" is pretty much a pointless exercise. I disagree. The first aspect of the rulings in Heller and McDonald was to respectively focus on what the RTKBA means and whether such meaning is applicable to the states. One must first understand the meaning and scope of the right before determining whether such right is being infringed...You can certainly disagree, but Heller clearly acknowledged that some regulation of the RKBA would be sustained -- both by pointing our historical examples of limitations found acceptable by courts and noting that the decision should not be read as casting doubt on certain current regulation.

As existing regulations continues to be litigated, I strongly suspect that they will be tested using thus far accepted doctrine applicable to the examination of regulation of constitutionally protected rights rather than any fine parsing of "shall not be infringed." We'll see.


....Does only mean outright denial or does it include frustration of that right similar to the "chilling effect" found unconstitutional in 1st Amdt jurisprudence. To illustrate, does limiting the amount of rounds a magazine can legally hold "infringe" on the 2nd Amdt RTKBA?.... You might believe that, but on what basis? Has any court thus far looked at any question of that sort in such terms. For example, in what might be something of a tour de force, the Seventh Circuit struck down Illinois' draconian limitations on carrying a gun outside the home without mentioning the words "infringe" or "infringed", except in actually quoting the Second Amendment (Moore v Madigan, Nos. 12-1269, 12-1788, Seventh Circuit, 2012).

...I do not speak for Sholling, but not only is he technically correct in terms of what is actually written in the Constitution, but he also is correct in intent and spirit as the import of the quote (at least to me) is that the Supreme Court doesn't have the right to rewrite or interpret of original meaning out of the Constitution....That's very nice, but neither you nor he has the exclusive knowledge of what that is. There have been, are, and will continue to be disagreements about what the Constitution means and how it applies in particular application to particular situations. And those disagreements are the province of of the federal courts to resolve through the exercise of judicial power as assigned to them by the Founding Fathers in the Constitution.

You might disagree with how, in a particular case, a court has done so. But once it has, things in the real world have been affected.

...On the first point, the power of judicial review, is NOT found directly in the Constitution....True enough. But as I've described it follows naturally and inexorably from the the Founding Fathers conferring on the federal courts the authority to exercise judicial power to decide cases arising under the Constitution.

...whether the Court has power to change meanings/concepts or interpret or apply a law in such a way that it does not comport with the Constitution approve of actions as Constitutional that are beyond the reach of federal or state power. In this regard, Sholling is absolutely correct and is not "living in fantasy land."...But again there has been, are and will be disagreement about whether or not in a particular case the courts have thus strayed. And in that connection, neither your view, nor his, will really have any impact in the real world.

...Everything is not grey and there are rulings that are correct/incorrect regardless of whether one sides so wants a different conclusion. The examples of Wickard v. Filburn and the Slaughterhouse Cases are directly on point. The expansive definition of the commerce clause under Wickard is prime example of judicial activism and probably political cowering during the new deal. Similarly, the Slaughterhouse cases had the effective result of reading the Privileges and Immunities clause out of the Constitution. This simply is wrong....Whether or not you think those ruling are correct is irrelevant. They are still the law. No doubt others who didn't like Roe have bases upon which to challenge the correctness of that ruling, just as those who object to Heller find reason to call that decision incorrect. But all those decisions remain the law until reversed or unless in future cases arguments supporting distinguishing, narrowing or clarifying those cases are sustained.

We took a shot at the Slaughterhouse cases in McDonald but didn't get anywhere (except with Justice Thomas), so it's well that we were able to also argue Due Process in parallel. But maybe someday.

And maybe someday we'll see some narrowing of Wickline. But until such things come to pass, we'll have to live with, and work with, what we have.

supersonic
04-29-2013, 8:38 AM
in·fringe
[in-frinj] Show IPA verb, in·fringed, in·fring·ing.
verb (used with object)
1.
to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
verb (used without object)
2.
to encroach or trespass (usually followed by on or upon ): Don't infringe on his privacy.


(From dictionary.com) http://dictionary.reference.com/browse/infringe?s=t

ap3572001
04-29-2013, 9:03 AM
infringe is good one....

I can't speak for everyone here, but on one hand just because I can't have a a true M4 or a silenced MP5, I can feel that my 2A rights are infringed.

On another hand a person likes to carry a five shot revolver (with CCW) and has a shotgun and a hunting rifle in the house, may feel just fine about their 2A rights, EVEN IF THAT WAS ALL THAT THEY COULD OWN.

Am I right ? Or is He right?

Would it be better if we had all the semi-automatic rifles and std magazines available here in Ca but DID NOT have a provision for a CCW in most of the state? Or we had a state SHALL ISSUE CCW with no restrictions and NO semi-automatic rifles and std magazines?

There are places in the world where a person (if they really want to ) can get a licence to carry a compact handgun but military style rifles are not allowed.

There are also places where You can have a collection of exotic weapoons but CAN NOT leaglly carry any firearms.

WHo do You think has it better?

To some, ANY control of the firearms by the government can mean an infringement.

There also could be an argument about WHAT will do You more good, a legally carried Clock 26 (via shall issue ccw) or an AK with a 30rd magazine in the safe at home.....

If there were no infringement at all, You could have both.

sholling
04-29-2013, 9:42 AM
Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.[

And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.
It would appear that you've fallen for the status quo hook line and sinker even while more of our freedom slips through our fingers year in and year out.

What would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law?
I hope that another civil war will never be necessary, but I suspect that it will eventually come to that if DC and the court do not come to their senses and roll back the reach of the federal government, and the fault for that situation is the gutting of the 10th Amendment by the court during the New Deal. Thankfully we're not at that point yet, but the 2nd Amendment was meant as the final check on the power of governments. You may not like that concept and may prefer to think it was meant for target shooting and bird hunting but that's not what the founders had in mind other than as a side benefit.

On the other hand the opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinion on such things and $2.00 will get you a cup of coffee at Starbucks.
The opinions of an armed robbery victim rarely effect the actions of armed robbers either. The fact remains that the Supreme Court has aided and abetted the theft of our individual rights and property rights for a century beginning (at least) with the Slaughter House vandalism of the 14th Amendment POI clause. That sir was a green cheese ruling. You can try to dress it up as anything you like, but that was the US Supreme court ripping up a section of the constitution that was politically and socially unpalatable to them. Gura gave the modern court the chance to correct that travesty and recover credibility but as displayed during oral arguments the judicial conceit that court precedent so trumps the written word of the US Constitution that they wouldn't even consider addressing the concept. The number of cases where SCOTUS has blown off individual and property rights and allowed unconstitutional expansion of the reach of the federal government are legion. The only legitimate mechanism for reducing individual freedoms or expanding the power of the government is the amendment process, and a court decision that flies in the face of the general public meaning (at ratification) of the written word of the US Constitution is on it's face illegitimate.

And that is your solution? History bears out is that revolution as a mechanism for promoting freedom has a really lousy track record.
Not my solution, that's the founding fathers' solution. I would hope that it never becomes necessary but as anybody with their eyes open can see it is getting closer every year and when and if it happens it will be led by state governments rallying their citizens and not by individuals shouting "Wolverines" from mountain tops. I sincerely hope that it never comes to that but I have no faith that congress will cease and desist its ongoing and endless power grab, and very little faith that the Supreme Court will do its job and reinvigorate the nearly dead 10th Amendment.

Whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.
The fact remains that the court has crapped on the US Constitution in many cases including the Slaughter House Cases, Wickard, and many others. One can either take (assume) the position and opine "I may not like it but but the court has spoken", or we as citizens can stand up on our hind legs and rub their noses in the fact that we know that they are violating our rights and don't like it one bit. The fact that they get away with aiding and abetting the theft of our rights does not make the actions of a court any less wrong that than the actions of a bank robber or child molester that is never caught and forced to end their wicked ways.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.
Again the judicial conceit of precedent trumping the constitution. The Constitution did not grant the Court the right to carve out exceptions to the limits on government power, or to pencil out sections of the Constitution that they find politically or socially unpalatable, or to decide to balance the value of enumerated rights of citizens against the whims and utopian dreams of legislatures.

Unfortunately 2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", but by a court determination of how much may government infringe upon our rights. I suspect that the decision will be just short of complete infringement. A decision based not on the written words of the constitution but on the personal politics, prejudices, and conceits of the justices.

curtisfong
04-29-2013, 9:57 AM
The fact remains that the court has crapped on the US Constitution in many cases including the Slaughter House Cases, Wickard, and many others. One can either take (assume) the position and opine "I may not like it but but the court has spoken", or we as citizens can stand up on our hind legs and rub their noses in the fact that we know that they are violating our rights and don't like it one bit.

You have zero alternative. The constitution seeks to limit the damage that the legislative branch can do to our inalienable rights, but the *only* legal remedy (and implementation of that limitation) exists in the courts. Period.

There is always violent revolution, of course.

.. the actions of a bank robber or child molester that is never caught and forced to end their wicked ways.

And this attitude is what leads directly to a larger, more invasive, more intrusive government.

Our freedoms always come at the cost of criminals occasionally going unpunished. A citizen that demands all criminals be punished is a citizen who demands a tyrannical government....

fiddletown
04-29-2013, 10:10 AM
Enjoy your stay on Fantasy Island, but that is not the way things are in the real world.

And your implied belief that you know the true application of the Constitution is a power and conceit invented by you for yourself.

It would appear that you've fallen for the status quo hook line and sinker even while more of our freedom slips through our fingers year in and year out....Nope, I live in the real world and understand how things must be done in the real world. I've made a career of achieving desired results in the legal system for real clients in the real world, and I did not do so by fantasizing about how the legal system ought to work.

As for freedom slipping away, you will not hold on to it by your fantasizing about how the legal and political systems ought to work. The legal teams that gave us Heller and McDonald achieved their results by understanding how things actually are, rather than how you might wish they were.

...The fact remains that the Supreme Court has aided and abetted the theft of our individual rights and property rights for a century beginning (at least) with the Slaughter House vandalism of the 14th Amendment POI clause. That sir was a green cheese ruling. You can try to dress it up as anything you like, but that was the US Supreme court ripping up a section of the constitution that was politically and socially unpalatable to them. ....Whatever. You're welcome to try to fix things. Let us know how that works out.


...A court decision that flies in the face of the general public meaning (at ratification) of the written word of the US Constitution is on it's face illegitimate....In your view. So you would have us submit to a tyranny of "the sholling."

...Again the judicial conceit of precedent trumping the constitution. The Constitution did not grant the Court the right to carve out exceptions to the limits on government power,...More of your own conceit.

...2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", ...That is correct. You don't like it, but that doesn't change anything.

You're unhappy that reality isn't as you would wish it to be.

sholling
04-29-2013, 10:45 AM
You have zero alternative. The constitution seeks to limit the damage that the legislative branch can do to our inalienable rights, but the *only* legal remedy (and implementation of that limitation) exists in the courts. Period.

There is always violent revolution, of course.
It need never get to that. Just as Obama and the media shamed Roberts into tying logic into knots to find a way to declare Obamacare constitutional, the public can let the court know that it considers bogus rulings little more than shameless hot air enforced at gunpoint. The Roberts court was well aware that the public has little respect for the court and folded inorder to protect the court from a public beating by the media. We need to be just as willing to shame the court loudly and continuously should they rule against our constitutional rights. The court's entire moral authority flows from the trust that the American people place in the court to faithfully protect their constitutional rights. A trust that is eroding after the Obamacare decision.

http://www.brookings.edu/research/opinions/2007/06/25governance-wittes

And this attitude is what leads directly to a larger, more invasive, more intrusive government.

Our freedoms always come at the cost of criminals occasionally going unpunished. A citizen that demands all criminals be punished is a citizen who demands a tyrannical government....
You completely missed my point. Go back and reread what I wrote. My point was that a branch of government believes that it may continue to act in violation of the law (the US constitution is the supreme law) because they've been able to get away with it, has no more moral authority to their "but nobody stopped me" argument than a priest or a coach that's molested kids for 30 years and then thinks it's ok because nobody stopped them.

curtisfong
04-29-2013, 10:53 AM
We need to be just as willing to shame the court loudly and continuously should they rule against our constitutional rights. The court's entire moral authority flows from the trust that the American people place in the court to faithfully protect their constitutional rights.

Insulating the courts from public opinion is not an accident. Our founding fathers did not trust public opinion (either the vocal minority, or the tyranny of the majority), because it is public opinion alone (corruption notwithstanding) which motivates a legislature to pass laws that violate inalienable rights. Halbrook et al know this. To that end, they marketed their idea of what the 2A should be directly to the legal community, whose opinion the courts DO care about.


You completely missed my point.


I did not. I just chose to address a side effect of your stated opinion, and not the primary thrust of your comparison.

.. a branch of government believes that it may continue to act in violation of the law (the US constitution is the supreme law) because they've been able to get away with it, has no more moral authority to their "but nobody stopped me" argument than a priest or a coach that's molested kids for 30 years and then thinks it's ok because nobody stopped them.

The difference is that there is legal way to punish a child molester. There is no legal recourse to punish a court that publishes a finding that the public (or anyone else) disagrees with.

Going down the "moral authority" path presents an ought/is problem that cannot be solved within the current structure of the Constitution.

fiddletown
04-29-2013, 10:55 AM
...Just as Obama and the media shamed Roberts into tying logic into knots to find a way to declare Obamacare constitutional, the public can let the court know that it considers bogus rulings little more than shameless hot air enforced at gunpoint. The Roberts court was well aware that the public has little respect for the court and folded inorder to protect the court from a public beating by the media....Do you have any actually evidence to support that claim, and I hardly think that a six year old OpEd piece constitutes evidence. As Carl Sagan said, "Extraordinary claims require extraordinary evidence."

sholling
04-29-2013, 10:57 AM
...2nd Amendment case law will not be decided by the constitutional instruction "shall not be infringed", ...
That is correct. You don't like it, but that doesn't change anything.

You're unhappy that reality isn't as you would wish it to be.
And your advice is to bend over and accept a good screwing with a smile and a thank you for your rapist because that's just how it is. I may not be able to prevent the rape of my rights but I refuse to quietly accept it or call it anything but what it is. I'll pass on your advice thank you, and scream loud and clear if and when the court blesses off an infringement of my rights.

curtisfong
04-29-2013, 10:59 AM
I'll pass on your advice thank you, and scream loud and clear if and when the court blesses off an infringement of my rights.

While I sympathize with you, it is unlikely your strategy will prove fruitful.

Although it may make you feel better to vent :)

fiddletown
04-29-2013, 11:06 AM
And your advice is to bend over and accept a good screwing with a smile and a thank you for your rapist because that's just how it is. I may not be able to prevent the rape of my rights but I refuse to quietly accept it or call it anything but what it is. I'll pass on your advice thank you, and scream loud and clear if and when the court blesses off an infringement of my rights.More mere rhetoric which ultimately comes to, and will mean, nothing.

What we will manage to achieve we will achieve by understanding how things work in the real world -- both in the political arena and the legal system. So you can rant and rave all you want "full of sound and fury, signifying nothing" while the real work gets done by others.

sholling
04-29-2013, 11:10 AM
Going down the "moral authority" path presents an ought/is problem that cannot be solved within the current structure of the Constitution.
Then we've lost and the country is doomed. We may be allowed to maintain scraps and tatters of our constitutional rights for a time, but only on borrowed time and only until those who see government as the answer to all of the world's problems decide that it's time to eliminate the remainder.


Do you have any actually evidence to support that claim, and I hardly think that a six year old OpEd piece constitutes evidence. As Carl Sagan said, "Extraordinary claims require extraordinary evidence."
Due to the secrecy of the court I'm limited to analysis of the alleged Roberts flipflop in the light of the extraordinary pressure that Obama and media placed on the court, and the skinny straw that majority clung to. You play the game for a living and the nuances and game play are all that matters, I don't and all that matters to me are results that fit the actual written words of the constitution according to the general public meaning of those words at the time.

curtisfong
04-29-2013, 11:16 AM
Then we've lost and the country is doomed. We may be allowed to maintain scraps and tatters of our constitutional rights for a time, but only on borrowed time and only until those who see government as the answer to all of the world's problems decide that it's time to eliminate the remainder.

Yes. Inevitably, the public cede their liberties to their government, either by force, or, in the case of "representative" governments, voluntarily.

The US constitution (imo) embodies possibly the best effort in the history of man to slow that erosion... but ultimately it will fail. Humans love being told what to do. As social animals, they will always be vulnerable to argument by authority, whether it be religion or political dogma. And they will inevitably do so without complaint or criticism (let alone rational analysis).

fiddletown
04-29-2013, 11:34 AM
Then we've lost and the country is doomed....If that's what you want to believe, that's your choice.

...Due to the secrecy of the court I'm limited to analysis of the alleged Roberts flipflop in the light of the extraordinary pressure that Obama and media placed on the court, and the skinny straw that majority clung to...In other words, you're just guessing.

...all that matters to me are results that fit the actual written words of the constitution according to the general public meaning of those words at the time.In your opinion -- which doesn't really matter in the real world. And you will always be disappointed in the results.

.30-06
04-29-2013, 11:44 AM
Regardless of what it means, our leaders in office are going to continue to violate it until they either succeed, or we vote them out of office. Period

M. D. Van Norman
04-29-2013, 12:01 PM
You play the game for a living and the nuances and game play are all that matters.…

The problem here, of course, is that neither of you are dealing entirely in reality. ;)

Tyrone
04-29-2013, 12:43 PM
You can certainly disagree, but Heller clearly acknowledged that some regulation of the RKBA would be sustained -- both by pointing our historical examples of limitations found acceptable by courts and noting that the decision should not be read as casting doubt on certain current regulation.

As existing regulations continues to be litigated, I strongly suspect that they will be tested using thus far accepted doctrine applicable to the examination of regulation of constitutionally protected rights rather than any fine parsing of "shall not be infringed." We'll see.

That Heller clearly acknowledged some historical restrictions is not contested. What is at issue, though, and I think important, is the definition of "infringed" because once the RTKBA is defined the inquiry inevitably becomes what laws are necessary and can be made without infringing upon that right. Free speech not being abridged is a good analogy. Does anyone really think that it means anyone can say anything at any time without consequence? Does this mean that there should be no laws against defamation, inciting a riot, burning down a building? I think not. Similarly, with the RTKBA, does anyone think or is anyone arguing that the RTKBA means that one can keep and bear arms at any place any time for any reason without consequence? Displaying a weapon in a menacing way towards an individual that I am asking to give me money is not protected. Using a weapon to commit or attempt to commit any crime is not protected. I do not think most people would argue such exercises are protected under the 2nd Amdt. However, the rub is how much and to what extent such a right can be regulated without crossing over the line into infringement. To reach the answer to this question one must understand what it means to infringe. You have appropriately set forth the criteria for strict scrutiny. As an attorney you know that the standard of review can be determinative of the outcome. It is very difficult to show that there is 1) a compelling government interest; 2) that the law is narrowly tailored to address only that compelling govt interest; and 3) is the least restrictive means of achieving that compelling govt interest. Most laws do not pass this test. On the other end of the spectrum is rational basis which should not apply to the 2nd, but essentially means that a law is presumed constitutional if it is rationally related to a legitimate govt interest. Most laws pass this test. While I agree it is likely that these judicially created tests (w/ help of non judge Lawrence Tribe) will play an important rule in parsing out whether laws or regulations are or are not constitutional, they must do so in the context that the "right" shall not be "infringed."

In the free speech context Courts have similarly used the standard of review process in reaching decisions on whether rules or regulations "abridged" freedom of speech. The best corollary is the "chilling effect" 1st Amdt jurisprudence which finds that rules laws and regulations that have the effect of chilling or deterring the exercise of that right, "abridge" that right. Again, while some of the laws or regulations be proposed may not outright deny the ability to keep and bear arms, many if not all do have a chilling effect. It is important that the authors even acknowledge that the purpose is to have a chilling effect with eventual extinction of certain arms and magazines.

You might believe that, but on what basis? Has any court thus far looked at any question of that sort in such terms. For example, in what might be something of a tour de force, the Seventh Circuit struck down Illinois' draconian limitations on carrying a gun outside the home without mentioning the words "infringe" or "infringed", except in actually quoting the Second Amendment (Moore v Madigan, Nos. 12-1269, 12-1788, Seventh Circuit, 2012).

Fair enough, but you know as well as I that 2nd Amdt jurisprudence is in its infancy. Thus, we only have the actual text, original meaning derived therefrom, and meaningful analogy to how the Court has ruled in similar situations. Again, as an attorney, you know this is how arguments are made. In Moore, similar to Heller & McDonald, I submit that this is more of complete deprivation. Moore is a complete deprivation of the "bear" aspect making discussion of "infringe" immaterial. It is clear that an outright denial would be infringement. Thus, they are focusing on whether the definition of "bear" or scope of right under 2nd Amdt including carrying outside of the home.

That's very nice, but neither you nor he has the exclusive knowledge of what that is. There have been, are, and will continue to be disagreements about what the Constitution means and how it applies in particular application to particular situations. And those disagreements are the province of the federal courts to resolve through the exercise of judicial power as assigned to them by the Founding Fathers in the Constitution.

I never claimed to have exclusive knowledge of original intent. That does note mean however that judges cannot go so far astray that it is clear they have gone beyond such intent. While we are stuck (for a while) with a Court ruling on a particular matter and that it is true that under our system Courts do determine whether laws are or are not constitutional, Courts do reverse themselves or have others do it for them ala Dread Scott and hopefully Kelo, Wickard, and the Slaughterhouse Cases. It also is the province of the legislature to check itself and determine before drafting any legislation that it passes constitutional muster. To hear some legislators say they just pass laws and its up to the Court to determine whether they are Constitutional may be a reality but it is an abrogation of their oath of office and responsibility to the American people. To deny this and simply shut up only facilitates the disinformation.


You might disagree with how, in a particular case, a court has done so. But once it has, things in the real world have been affected.

I do not think there is any disagreement here. I never said Court rulings don't have real world consequences. What I have said is that certain Court rulings are wrong and we should work to have them overturned and the public educated as to why such opinions are wrong. In the end, legislators, executive, and judges, are people and suffer from the same flaws the rest of us do. However, because of this, they should willingly exercise self-restraint whenever and wherever possible to protect against these human flaws. Resort to turning everything in politics, left or right, undermines this necessary goal and is why the Framers did what they could to insulate the judicial branch from politics. The "legal realists" or progressives of the day, thought this was a bunch of malarkey and that we should recognize and understand personal predilections of judges and even confirm or deny confirmation based upon the same as opposed to whether the particular judge would steadfastly apply law to facts without letting individual predilections dominate. This has come full circle with the nomination process now (Bork, wise latina, Ginsberg rule, etc...) and it truly is a subversive attack on the rule of law and our system of government. We should continue to scream to high heavens regarding the same. If we do not, we are just accepting status quo and a status quo that is detrimental to the rule of law.

True enough. But as I've described it follows naturally and inexorably from the the Founding Fathers conferring on the federal courts the authority to exercise judicial power to decide cases arising under the Constitution.

That there exists and did exist the power of judicial review is not contested. That it is not specifically in the Constitution should not be contested either. Abuse of that power to reinterpret or interpret meaning out of is a problem. Even the great Justice John Marshall was not immune to this problem. Look at his description of what is "necessary and proper" essentially reading out the "necessary" language by legal jujitsu. Even average Joe knows that this is conjunctive thus requiring both necessity and propriety, but this is no longer the case.

But again there has been, are and will be disagreement about whether or not in a particular case the courts have thus strayed. And in that connection, neither your view, nor his, will really have any impact in the real world.

This is not necessarily true. As an attorney you know that you have the ability to raise arguments through briefs and test these arguments through cases. Getting certain arguments to pass muster at the trial court level, and then eventually, appellate and ultimately Supreme Court is a method much used and highly successful. Given the nature of Courts and this Supreme Court in particular they are (supposed) to be reticent to rule on issues that are not before them. Thus, the issues must be raised and keeping quiet only prolongs any particular injustice.

Whether or not you think those ruling are correct is irrelevant. They are still the law. No doubt others who didn't like Roe have bases upon which to challenge the correctness of that ruling, just as those who object to Heller find reason to call that decision incorrect. But all those decisions remain the law until reversed or unless in future cases arguments supporting distinguishing, narrowing or clarifying those cases are sustained.

Nobody said such decisions did not have the effect of case law. This is a straw man.

We took a shot at the Slaughterhouse cases in McDonald but didn't get anywhere (except with Justice Thomas), so it's well that we were able to also argue Due Process in parallel. But maybe someday. And maybe someday we'll see some narrowing of Wickline. But until such things come to pass, we'll have to live with, and work with, what we have.

One always has to operate in the proper playing field. We must keep raising the issues in order to prevail. As you are well aware, dissenting opinions and concurring opinions can later become the rule.

One final note. I presumed you are an attorney from the following quote: I've made a career of achieving desired results in the legal system for real clients in the real world, and I did not do so by fantasizing about how the legal system ought to work. If not, I apologize and you can delete references above to what I expect you to know as an attorney.

I now see from your profile that you are and are retired. Congratulations! I mean that sincerely.

Funtimes
04-29-2013, 1:29 PM
You guys also have to remember that things must be made to see if they do in fact obstruct, encroach, or any other definition you want to try and apply.

All of these terms are subjective and require an analysis of their scope.

Does a cone in the road hinder my ability to drive? Maybe - it depends on where in the road, if there is other roadway that can I utilize to avoid that cone, how big or small the cone is, can I see the cone etc. I think the same type of logic applies to many of these legal definitions.

fiddletown
04-29-2013, 5:38 PM
That Heller clearly acknowledged some historical restrictions is not contested. What is at issue, though, and I think important, is the definition of "infringed" because once the RTKBA is defined the inquiry inevitably becomes what laws are necessary and can be made without infringing upon that right. Free speech not being abridged is a good analogy. Does anyone really think that it means anyone can say anything at any time without consequence? Does this mean that there should be no laws against defamation, inciting a riot, burning down a building?...No, you simply don't understand constitutional jurisprudence. Do you really think that courts in sustaining regulation of a right protected by the First Amendment have reached that conclusion by finding that the regulation did not abridge the right? Can you cite a court decision in which the ruling was on such basis?

Indeed, courts do not rely on a determination of whether a law abridges a right protected under the First Amendment. Rather the court looks to whether the regulation, even though burdening the right, nonetheless passes the applicable level of scrutiny (as I described in post 24). See for example 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:...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...And in that entire decision, the court not once considers the meaning of the word "abridge."

...While I agree it is likely that these judicially created tests (w/ help of non judge Lawrence Tribe) will play an important rule in parsing out whether laws or regulations are or are not constitutional, they must do so in the context that the "right" shall not be "infringed."...No, as I've discussed that is not how a court will look at the question. If you contend otherwise, cite a case.

...In the free speech context Courts have similarly used the standard of review process in reaching decisions on whether rules or regulations "abridged" freedom of speech....No that is not how a court will look at the question. If you content otherwise, cite the case.

Peaceful John
04-29-2013, 5:52 PM
"Shall not be infringed" I'll wager will be interpreted to mean strict scrutiny. To do otherwise is not helpful.

sl0re10
04-29-2013, 6:29 PM
On another site I recently read a post where someone very incorrectly argued that the 2nd Amendment doesn't mean what it seems to say because the word "infringed" didn't mean the same thing when it was written that it does today. They claimed infringed had some oddball meaning that just made me scratch my head. :facepalm: Now... I am a BIG proponent of picking up the Noah Webster's 1828 "AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE" whenever someone is interested in what the words of the Constitution actually mean. The 1828 dictionary is a relatively contemperanous writing with the Constitution (it took quite a number of years for Webster to complete it), and Webster actually lived through (and gave some voice to) the Revolution and is regarded as one our "Founding Fathers". Therefore I figure it's a safe place to look to find out what any of the words in the Constitution actually mean. So here is what Webster's 1828 lists:

"INFRINGED, pp. Broken ; violated ; transgressed." (NOTE: only one definition was given for infrigned)

Just wanted to pass this along to any of you who may similarly run into discussions that claim "infringed" means something other than what it actually means, and figured not everyone has a copy of the 1828 dictionary laying around for reference.

It means it shouldn't INclude Fringe groups. :p

On the other hand; check what regulated meant back in the 1828 dictionary. :43: Sometimes it comes up in westerns using the old definition.

Tyrone
04-29-2013, 9:16 PM
No, you simply don't understand constitutional jurisprudence. Do you really think that courts in sustaining regulation of a right protected by the First Amendment have reached that conclusion by finding that the regulation did not abridge the right?

Are you serious? Every case that has found a law unconstitutional concerning free speech has done so because the law is considered to abridge free speech. Use of strict, intermediate or rational basis scrutiny is only the means by which the court uses to determine if there is an abridgment by the law. Without such abridgment the law would not be unconstitutional.

Here are but a few cases you request:

"Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress. They are likewise protected by the Fourteenth Amendment against infringement by state Legislatures." However reprehensible a Legislature may regard certain convictions or affiliations, it cannot forbid them if they present "no clear and present danger that they will bring about the substantive evils" that the Legislature has a right to prevent. "It is a question of proximity and degree." Danskin v. San Diego Unified School Dist., 28 Cal. 2d 536 (1946).

"The application of a state registration statute requiring labor organizers before "soliciting" persons to become members to identify themselves by obtaining and carrying an organizer's card, to the president of a union who comes into the state temporarily for the sole purpose of making a speech at a mass meeting as part of a campaign to organize the employees of a local plant, is an unconstitutional infringement of the rights of free speech and free assembly, although, in the course of his speech, he invites his listeners to join the union and afterwards personally solicits one of them to join." Thomas v. Collins 323 U.S. 516 (1945)

"Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. (citations) The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. As this Court said in United States v. Cruikshank, 92 U.S. 542, 552: "The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions, -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause." De Jonge v. Oregon, 299 U.S. 353 (1937).

"It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Schenck v. United States 249 U.S. 47 (1919).

Note: "proximity and degree" is exactly what we are concerned about with the term abridge as well as infringe.

"But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is "to prevent all such previous restraints upon publications as had been practiced by other governments," and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all." Patterson v. Colorado 205 U.S. 454 (1907).

"the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."
Frohwerk v. United States 249 U.S. 204 (1919).

Oliver Wendell Holmes in dissent in Abrams v United States 250 U.S. 616 (1919). This is now the prevailing theory. "That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States."

"For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.... It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." Gitlow v. New York 268 U.S. 652 (1923).

"These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297-298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. ... Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments."
Brandenburg v. Ohio 395 U.S. 444 (1969).

Note: this all about whether the particular law abridges protection of 1st Amdt.

"This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities....This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. "The First and Fourteenth Amendments have never been treated as absolutes. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited."
Miller v. California 413 U.S. 15 (1973)

"The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. (obscenity)(defamation)("'fighting' words"). ...

We have sometimes said that these categories of expression are "not within the area of constitutionally protected speech," or that the "protection of the First Amendment does not extend" to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all". What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) -- not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government....

Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government "may regulate [them] freely." That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well."
R.A.V. v. City of St. Paul 505 U.S. 377 (1992).

This last case also deals with what particular speech restrictions are permissible or unconstitutionally "abridge" the freedom of speech.

kcbrown
04-29-2013, 9:49 PM
Whatever. You're welcome to try to fix things. Let us know how that works out.


And what, pray tell, is your suggestion as to how to go about dealing with the issues sholling raises?

What is your suggestion as regards securing enumerated rights in the face of a judiciary that refuses to allow them to be secured legally and a legislative branch that is insistent upon eliminating them?

curtisfong
04-29-2013, 9:55 PM
And what, pray tell, is your suggestion as to how to go about dealing with the issues sholling raises?

What is your suggestion as regards securing liberty in the face of a judiciary that refuses to allow it to be secured legally?

My wager?

Support cases and lawyers that are smart, and hope that judges listen.

It only took two or three very smart lawyers to meaningfully resurrect the 2A out of it's "militia" grave - and that didn't even require litigation in its early stages.

Yes, I know the obvious objection. Judges don't listen to lawyers either if it conflicts with their bias.

But they CERTAINLY don't pay attention to the public. So take your victories where you can get them, and take your best shot, no matter how unlikely success is.

kcbrown
04-29-2013, 10:00 PM
My wager?

Support cases and lawyers that are smart, and hope that judges listen.

It only took two or three very smart lawyers to meaningfully resurrect the 2A out of it's "militia" grave - and that didn't even require litigation in its early stages.

Yes, I know the obvious objection. Judges don't listen to lawyers either if it conflicts with their bias.

But they CERTAINLY don't pay attention to the public. So take your victories where you can get them, and take your best shot, no matter how unlikely success is.

I agree, but I'm talking about when that option has already been exhausted, as it apparently has in re Slaughterhouse.

kcbrown
04-29-2013, 10:05 PM
That's very nice, but neither you nor he has the exclusive knowledge of what that is. There have been, are, and will continue to be disagreements about what the Constitution means and how it applies in particular application to particular situations. And those disagreements are the province of of the federal courts to resolve through the exercise of judicial power as assigned to them by the Founding Fathers in the Constitution.

You might disagree with how, in a particular case, a court has done so. But once it has, things in the real world have been affected.


Tell me something. Is it your belief that if the Supreme Court interprets the Constitution in a way that is diametrically opposed to the interpretation that the bulk of the evidence says the framers intended, then the Supreme Court is nevertheless correct? Have we always been at war with Eastasia?

What suggestions do you have for the rest of us with respect to dealing with such situations when they arise?

curtisfong
04-29-2013, 10:12 PM
I agree, but I'm talking about when that option has already been exhausted, as it apparently has in re Slaughterhouse.

Perhaps it will be resolved in another 50 years, when another batch of very smart lawyers write enough influential papers...

Other than that? I share your pessimism. There is nothing any of us can do, except for hope for better judges, and hope that the complete idiots that we elect to office manage to pick a few winners in spite of their utter incompetence.

Tyrone
04-29-2013, 10:52 PM
There is nothing any of us can do, except for hope for better judges, and hope that the complete idiots that we elect to office manage to pick a few winners in spite of their utter incompetence.

We can educate and teach our children more about the foundations and founding documents of our society. What I find most disturbing in discussing Constitutional issues is that many do not understand how the Constitution came to be, what deficiencies in the Articles of Confederation needed to be improved upon requiring centralization of power, and what legitimate fears the Framers had concerning centralized power and steps taken to provide checks against abuses of that centralized power. I attribute some of this to how the Constitution is taught in schools. Usually, legal teachers start with the Bill of Rights as it is sexier and has more jurisprudence to discuss and engage debate. However, without a solid understanding as to the foundations of the original document the amendments thereto lose necessary context. It is surprising that both the federalist and anti-federalist papers are not required reading for U.S. History or at least key portions of Madison's Notes on the Convention are not similarly required. When you show your children, friends, co-workers etc... (without being a preacher or constitutional evangelist [although I sorta like this latter term]) the foundations, case and statutory law that are both consistent and inconsistent with the Constitution becomes clearer. Yes, there are legitimate arguments over meaning, but if people have lost the foundation or premise, the ability to manipulate becomes easier.

fiddletown
04-30-2013, 3:30 AM
Are you serious? Every case that has found a law unconstitutional concerning free speech has done so because the law is considered to abridge free speech. Use of strict, intermediate or rational basis scrutiny is only the means by which the court uses to determine if there is an abridgment by the law. ...No, you've got it backwards. When a court finds a law unconstitutional under the First Amendment, it does so because the law impermissible impair a right protected under the First Amendment. But you claimed that when a court sustains a regulation of a right protected by the First Amendment, it does so because it finds the right not to be "abridged." ...What is at issue, though, and I think important, is the definition of "infringed" because once the RTKBA is defined the inquiry inevitably becomes what laws are necessary and can be made without infringing upon that right. Free speech not being abridged is a good analogy. Does anyone really think that it means anyone can say anything at any time without consequence?...In sustaining a regulation of right protected by the First Amendment, courts do so not by deciding that the right is not abridged, but rather by deciding that whatever impairment there is of the right serves a governmental interest and is within the the constraints imposed by the appropriate level of scrutiny.

Even those cases you cite do not probe the definition of the word "abridged." They merely note the fact, relying on the normal meaning of the word. For example"

Danskin:...Freedom of speech and of peaceable assembly are protected by the First Amendment of the Constitution of the United States against infringement by Congress....


Thomas:...The application of a state registration statute requiring labor ... is an unconstitutional infringement of the rights of free speech...

This thread started out as an inquiry into the meaning of the word "infringed" as used in the Second Amendment in order to test whether any impairment of the rights protected under Second Amendment would not be an infringement as the word was used. My point is that such an inquiry is pointless because the courts would sustain or reject a regulation of such rights not because they determine that the regulation does infringe or does not infringe, within in the meaning of "infringe", but rather on the basis of whether the particular infringement serve a sufficiently important government interest and is sufficiently narrow as required under the applicable level of scrutiny.

The First Amendment cases you cite bear that out. None parse the definition of "abridged", and in fact the use "abridged" and "infringed" interchangeably. They indeed find a right protected by the First Amendment to be impaired, in some term or other; but they issue becomes whether the impairment is permissible or not under the applicable level of scrutiny.

Any regulation of a protected right necessarily "abridges" or "infringes" that right. The question is not whether there's an impairment of that right, but rather whether the impairment is constitutionally permissible under the applicable standards.

kcbrown
04-30-2013, 4:33 AM
Any regulation of a protected right necessarily "abridges" or "infringes" that right. The question is not whether there's an impairment of that right, but rather whether the impairment is constitutionally permissible under the applicable standards.

And now for the kicker:

Is that question ("whether the impairment is constitutionally permissible under the applicable standards") consistent with the expectations of the framers of the Constitution, based on the best evidence we currently have available to us?

Did they expect that to be the means by which Constitutionality would be judged?

M. D. Van Norman
04-30-2013, 7:45 AM
Objectively speaking, no, but the legalistic reality has been something else. ;)

Tyrone
04-30-2013, 8:14 AM
No, you've got it backwards. When a court finds a law unconstitutional under the First Amendment, it does so because the law impermissible impair a right protected under the First Amendment.

I do not have it backwards. My initial post was disagreement to your assertion that discussion of the definition of "infringed" was useless or a waste of time. A law that "impermissibly impairs" a right protected under the 1st Amdt, does so precisely because it is found to impermissibly abridge or infringe upon that right. The 1st Amdt provides that Congress shall make no law ... abridging the freedom of speech.... One aspect of the analysis is what is the scope of freedom of speech. For example, does freedom of speech include the freedom to defame another without consequence. The answer is, no. Thus, congress or states may make laws regulating or punishing defamatory speech. This type of speech does not fall within the scope of the right. It is in this regard that I mentioned that 2nd Amdt jurisprudence is in its infancy and that Heller & McDonald & Moore are more about determining scope of the right than determining whether that right was infringed because the laws at issue constitute outright denial.

The other aspect of this analysis, however, is whether speech within the scope of freedom of speech has been infringed or abridged by legislation. The example I provided was "chilling effect" jurisprudence. Another example is "time place and manner restrictions" that apply to speech clearly within the scope of the right such as individual political speech. Here, as you point out, the Courts will use strict, intermediate or rationale basis review. Here Courts find that right itself has not been abridged or infringed as other competing govt interests allow incidental or negligible effect on exercise of that right. If the law serves a compelling govt interest and they have jumped through the hoops of narrowly tailoring that law to the compelling govt interest and have used the least restrictive means to achieve that compelling govt interest, there is no infringement or abridgment of that right. you need to be cognizant of whether the issue is whether regulation applies to "speech", the speech is encompassed within the right to freedom of speech, and/or whether the regulation abridges speech contained within the right to freedom of speech. Similarly, once the scope of the RTKBA has been more fully parsed, it will imperative to determine what it means to infringe upon the scope of that right. Heller answered the question of whether the 2nd Amdt was meant for individuals or a militia. McDonald answered the question, in part, of whether the individual right was a liberty interest to be applied to the states via liberty clause of 14th Amdt. There is much ahead and once a particular issue is held to constitute the keeping and bearing of arms protected by the 2nd Amdt, the issue will be whether a particular regulation or law infringes upon that right. Defining "infringement" is key to this discussion even if done through made up tests of levels of scrutiny.

In sustaining a regulation of right protected by the First Amendment, courts do so not by deciding that the right is not abridged, but rather by deciding that whatever impairment there is of the right serves a governmental interest and is within the the constraints imposed by the appropriate level of scrutiny.
We may be getting at the same thing here, but the level of scrutiny is utilized to determine whether there is an abridgment or infringement. If the particular law fails the particular level of scrutiny it has been found to abridge or infringe. If it passes scrutiny it has been held not to abridge exercise of the right.

Is that question ("whether the impairment is constitutionally permissible under the applicable standards") consistent with the expectations of the framers of the Constitution, based on the best evidence we currently have available to us?
Did they expect that to be the means by which Constitutionality would be judged?

KCBrown is spot on with this question. Here the devil is in the details. One of the better writings I have seen on the subject is taken from a speech by Justice Hugo Black. He recognized the argument about whether particular conduct etc... falls within the scope of a right. However, after that analysis, he believes the admonitions in the Constitution are clear and that there are in fact absolutes. No law means no law. Shall not be infringed, means shall not be infringed. His quote on the 2nd is illustrative.

"Amendment Two provides that:

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.
Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute."

Here is a link. Its short and worth reading. http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm

Although I do not think the Framers had rational basis, intermediate and strict scrutiny in their minds when making the constitution, there are real issues that the S. Ct. has tried to tackle in good faith that lead to some of the tests so often used. There are times when legitimate govt interest and rights collide. I almost always default to the rights prevailing because I am leery of govt regulation especially with how much and how far such regulation has intruded into our lives and I am an advocate for personal liberty. With this said, as much as I detest Americans who burn our flag, I agree that it is a form of political speech (though perhaps unprotected fightin words!) ;) At the same time, the govt and by extension the people have a legitimate interest from preventing uncontrolled fires in public. Anyway, I digress...

fiddletown
04-30-2013, 9:29 AM
...Is that question ("whether the impairment is constitutionally permissible under the applicable standards") consistent with the expectations of the framers of the Constitution, based on the best evidence we currently have available to us?...You ask that as if it's a straight forward question with an actual answer, but it is not. Among other things, it's fatuous to believe that the Framers all had the same expectations.

Fifty-five delegates attended the Constitutional Convention in 1786-87. Thirty-nine signed the proposed Constitution. Thirteen left without signing, and three refused to sign.


The Constitution as originally drafted, and as signed by 39 delegates, did not have a Bill of Rights. And even when the question of adding a Bill of Rights came up, many of the Founding Fathers opposed it.


There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.


And at the time the Bill of Rights was adopted, it apparently was generally thought to apply only as a curb on the conduct of the federal government, not the States. That was confirmed by the Supreme Court in 1833.


We know from Adam Winkler's book, Gunfight: The Battle over the Right to Bear Arms in America, and from the historical analysis in the Heller decision that during the period stretching from the time of the formation of our Republic there were various state laws in various ways infringing upon, regulating, impairing or encroached upon the RKBA and that such were often sustained by state courts.


I'm not going to spend the time to research how state laws at the time might have impaired the rights described in the First Amendment, but it's likely that there were such state law regulation. Certainly actions at law existed against dishonest or defamatory speech (e. g., fraud and libel).

Of course such speech has never been thought to deserve protection; but fraud is still speech and allowing an action for it still impairs the freedom of speech. But tort claims and criminal actions are allowed against fraudulent speech because of the societal interest in promoting honest conduct.

I've also noted in the past that the constitution of Connecticut (and some other States) provides that the jury shall be the judges of law and facts in trials of indictments for prosecutions for libel. So we can infer that in Connecticut (and some other States) one could have been charged with a crime for what he might say about someone else -- an infringement of freedom of speech and a chilling effect.


So given that historical framework, I don't see how anyone could say that the Founding Fathers necessarily had a uniform or clear vision of how the future should be.

I do not have it backwards. My initial post was disagreement to your assertion that discussion of the definition of "infringed" was useless or a waste of time. A law that "impermissibly impairs" a right protected under the 1st Amdt, does so precisely because it is found to impermissibly abridge or infringe upon that right. The 1st Amdt provides that Congress shall make no law ... abridging the freedom of speech.... One aspect of the analysis is what is the scope of freedom of speech. For example, does freedom of speech include the freedom to defame another without consequence. The answer is, no. Thus, congress or states may make laws regulating or punishing defamatory speech. This type of speech does not fall within the scope of the right....You still don't understand what is actually fairly straight forward, because you insist on making it obtuse.

Extended discussion of the meaning of "infringed" or "abridges" isn't necessary or useful because they are simple words with simple meanings discoverable by looking in any dictionary. Whether or not a court will sustain, or not sustain, a law which in some way infringes upon or abridges a protected right will not depend on some parsing of the meaning of the word. It will depend on the purpose, nature and extent of the infringement or abridgement.

A law enacted by Congress that prohibits you from telling lies to the public about the safety and efficacy of the prescription drug you manufacture and sell in interstate commerce unquestionably abridges (by any definition) your freedom of speech. You aren't free to tell such lies. But the law is a permissible abridgement because of the [dishonest] character of the speech, the scope of the regulation (applying only to such dishonest speech), and the nature of the interests protected.

kcbrown
04-30-2013, 2:39 PM
You ask that as if it's a straight forward question with an actual answer, but it is not. Among other things, it's fatuous to believe that the Framers all had the same expectations.


Is it your claim that the framers had little common ground between them with respect to what qualifies as the "applicable standards" for measuring Constitutionality?

Is it too much to suggest that if insufficient common ground is discernable to make what qualifies as "applicable standards" plain to all, then the Constitution's commands should be taken purely at face value (interpreted using the definitions of the words used at the time)? After all, the framers may not have had sufficient common ground behind the scenes to make their intent plain, but they did agree to the wording as it exists in the Constitution itself.

Tyrone
04-30-2013, 3:36 PM
You still don't understand what is actually fairly straight forward, because you insist on making it obtuse.

I am not obfuscating or making anything obtuse. It really is straight forward. There are two analyses that must take place in determining whether the right to freedom of speech is abridged by govt legislation: 1) does the legislation reach the speech protected under the 1st; and 2) if it does, does the legislation abridge that freedom. The first deals with the scope of protected speech (political speech = protected, defamatory speech = not protected). The second deals with whether that category of speech which is protected is infringed by the legislation. Protected political speech is not "abridged", for example, when certain time, place, and manner restrictions are enacted. Protected political speech is clearly abridged when prior restraints or content restrictions are placed upon that speech. The second analysis becomes important when proper functions of govt collide with rights retained by the people. Again, I almost always default to rights. However, the Courts have made the review process of strict or intermediate scrutiny when this occurs. If the law passes the hurdle of strict scrutiny it does not impermissibly abridge the freedom of speech. If it does not pass the hurdle, it abridges the freedom of speech. This is the reality of which you speak.

Sholling and KCBrown raise perhaps a more important but philosophical question, which you appear to not to want to discuss since you claim it is not real world, and that is whether that judicial exercise is permissible given that the words of the Constitution are clear "Congress shall make no laws..." "the right to keep and bear arms shall not be infringed." On this issue I directed you to a speech by Justice Hugo Black (yes, it is not law or controlling precedent) which addresses this issue and I think correctly. Once the conduct or speech etc... at issue has properly been found to be within the scope of "freedom of speech" or the "RTKBA", the exercise should be over as the Constitutional is clear. It is only judicial jujitsu (even good faithed) that causes the cloud.

Tyrone
04-30-2013, 4:08 PM
It's fatuous to believe that the Framers all had the same expectations. This is a common argument against original intent that really is subversive. There is an original intent and there is a reason that laws are initiated. There were and are well understood methods interpreting laws. The law book of the day when the Constitution was prepared and ultimately ratified was Blackstone's Commentaries on the Laws of England. We also have similar rules of interpretation at both federal and state level. It is bastardization of these rules by those who do not exercise self-restraint or feel their role is make law or social statements as opposed to interpret and apply existing law, however, that wrecks havoc on our system.

Blackstone provided the following, and it is critical to note that only if the original intent cannot be determined by the first rule do you move to the second, third, etc...:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf,[26] which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprize only certain of her lineal descendants.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.[27]

Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.[28]

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf,[29] which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius.[30] There was a law, that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation.[31]

From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius,[32] "the correction of that, wherein the law (by reason of it's universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittit."

This last phrase means that the law does not define exactly but leaves something to the discretion of a just and wise judge. It is important to note, however, that this applies only when there is true ambiguity in the words and if an ambiguity does not exist, there is no discretion left for the judge. A good book on this topic is Alexander Bickel, The Least Dangerous Branch. History will remind you that when the Constitution first came into effect that is what was thought of it as it was not understood to have the power it does today. The quote comes from Federalist 78 where Hamilton admonishes that the Court will not have much effect on political rights because it lacks power of the sword or of the purse. In fact, John Jay, the first S.Ct. Chief Justice actually left that position to be governor of NY.

Here is the quote from Federalist 78

"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

My my how times have changed...

fiddletown
04-30-2013, 8:24 PM
Is it your claim that the framers had little common ground between them with respect to what qualifies as the "applicable standards" for measuring Constitutionality?...My post speaks for itself. The 200 + years of constitutional jurisprudence post Marbury also speaks for itself.

I am not obfuscating or making anything obtuse. It really is straight forward. There are two analyses that must take place in determining whether the right to freedom of speech is abridged by govt legislation: 1) does the legislation reach the speech protected under the 1st; and 2) if it does, does the legislation abridge that freedom. The first deals with the scope of protected speech (political speech = protected, defamatory speech = not protected). The second deals with whether that category of speech which is protected is infringed by the legislation. Protected political speech is not "abridged", for example, when certain time, place, and manner restrictions are enacted...Well, again you're fantasizing. Not once has a court said that a regulation is permissible because the speech or right affected in not actually abridged or infringed. The courts look at the nature and extent of the infringement and the interest furthered by the infringement.

Time, place and manner restrictions absolutely abridge speech. "Abridge" (http://www.merriam-webster.com/dictionary/abridge) means to reduce in scope or diminish. And a restriction of time, place or manner of speech absolutely reduces the scope on one's freedom of speech. But time, place or manner restrictions on speech have been nonetheless sustained when the abridgement is sufficiently narrow and the interest served sufficiently great and related to the scope and extent of the abridgement.

...Protected political speech is clearly abridged when prior restraints or content restrictions are placed upon that speech. ...However, the Courts have made the review process of strict or intermediate scrutiny when this occurs. If the law passes the hurdle of strict scrutiny it does not impermissibly abridge the freedom of speech. If it does not pass the hurdle, it abridges the freedom of speech...But in either case the freedom of speech is abridged. The issue is whether the abridgment meets the standards for permissibility.

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.

The Court, however, also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of frce. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

...Sholling and KCBrown raise perhaps a more important but philosophical question, which you appear to not to want to discuss since you claim it is not real world, ...No, I lost my taste for drunken, midnight, dorm room bull sessions over 40 years ago. My concerns center on what the law actually is and how best to secure court decisions most favorable to our interests.

Tincon
04-30-2013, 9:16 PM
My point is that such an inquiry is pointless because the courts would sustain or reject a regulation of such rights not because they determine that the regulation does infringe or does not infringe, within in the meaning of "infringe", but rather on the basis of whether the particular infringement serve a sufficiently important government interest and is sufficiently narrow as required under the applicable level of scrutiny.

For what it's worth, this is my understanding as well. This is just how it works, regardless of how we might like it to work.

kcbrown
04-30-2013, 9:27 PM
My post speaks for itself. The 200 + years of constitutional jurisprudence post Marbury also speaks for itself.


Yes, it does. What it does not speak for, however, is how well it fits with what common ground the framers had with respect to measuring Constitutionality, and neither does your message. And it is that which I am asking about.

So please answer the question.

Tyrone
04-30-2013, 10:51 PM
Well, again you're fantasizing. Not once has a court said that a regulation is permissible because the speech or right affected in not actually abridged or infringed. The courts look at the nature and extent of the infringement and the interest furthered by the infringement.

So you are saying that the Court has sustained legislation holding that the legislation abridges the right to freedom of expression but it nevertheless is okay because the abridgment is constitutionally permissible. Please show that Constitutional jurisprudence where the Court acknowledges that legislation addresses protected speech and abridges the right of protected speech but is nevertheless Constitutionally valid. I think it is you who is fantasizing. I don't think you will be able to supply such authority because when laws are sustained it is precisely because the Court finds that the law does not unconstitutionally abridge the freedom of speech. It does so either finding that the speech is not protected or that the legislation does not unconstitutionally abridge the freedom of speech.

But in either case the freedom of speech is abridged. The issue is whether the abridgment meets the standards for permissibility. I think we are getting at the same thing but through a different path. However, you are making my point that discussion of what it means or doesn't mean to "abridge" or "infringe" is key. You are saying here that the issue is not whether there is abridgment or infringement but that there is and the issue is whether such is constitutionally permissible. To make this determination you must determine the scope of what is and what is not constitutionally permissible infringement or abridgment. All that is doing is adding the term "constitutionally permissible" to infringement and then attempting to "define" what is "constitutionally permissible infringement." For the original inquiry and your response that the definition of infringement is meaningless is a distinction without merit. Your definition of what is or what is not permissible infringement is determined through whether is passes strict scrutiny. What I am saying and I think is clearly reflected by case law is that the court simply determines whether there is infringement or abridgment and does so through the lens of strict scrutiny review. If it fails review, there is infringement or abridgment and the law is found unconstitutional. If it passes review, there is not infringement or abridgment. The latter is usually found when passing strict scrutiny that effect is so insufficient or negligible so as not to constitute abridgment or infringement. The example provided was a flag burning case wherein laws penalizing destruction of the American flag constituted unconstitutional abridgment but laws that forbid fires in public which would include burning of flags did not constitute abridgment. Again, I do not see case law stating that there is constitutionally permissible infringement of protected speech.

No, I lost my taste for drunken, midnight, dorm room bull sessions over 40 years ago. My concerns center on what the law actually is and how best to secure court decisions most favorable to our interests.
I too am quite past the age for drunken midnight dorm room bull sessions as you call it. This is not such a session. What may serve a client in Court is not the same as objectively discussing what the law is and whether it is being interpreted properly. The law IS that the RTKBA is an individual right, applicable to the states via 14th Amdt liberty clause and the text states that such right "shall not be infringed." Focusing on the word "infringed" is absolutely necessary because if you can show that legislation is within the right protected AND then show that such right has been "infringed" the burden shifts to the proponents of the legislation to show that it does not infringe. Failure to focus on this aspect, conversely, essentially grants proponents of the law that infringement is just fine, honky dory, despite the clear reading of the constitutional text to the contrary, just as long as they can somehow manage to jump through the hoops imposed by strict scrutiny. I submit that this is a failing legal strategy and rather than focusing on what the law is exempts half of the equation. It is akin to trying to argue breach of contract without understanding the definition of both what constitutes breach and what constitutes a contract and proving that there is valid contract and that has been breached. If a contract has not been formed there can be no breach. If a contract has been formed the question then is whether conduct or lack thereof constitutes breach.

In the end, I have not in any way ignored what the law actually is or ignored how it actually is applied.

Tincon
04-30-2013, 10:59 PM
Tyrone, you seem to getting hung up on semantics here. The point is that the analysis for any question of encroachment upon a constitutionally protected right has three steps.

1. Was the right encroached (infringed/abridged/whatever) upon.

2. What level of scrutiny applies.

3. Is that level of scrutiny met.

If you don't have something for step one, you never get to the analysis in the subsequent steps. In other words, there must be some method of determining if the law is even subject to constitutional challenge. Calling that "infringement" makes sense to me, but what you call it doesn't matter. The point is there is some finding of a prima facie Constitutional violation, and then the Court looks to see if there is some permissible purpose (some other overriding Constitutional principle).

POLICESTATE
04-30-2013, 11:01 PM
That may have been what it meant in 1828, but nowadays it seems to mean nothing at all.

Just like the Constitution itself. Well except for the parts people use to act like a bunch of ****ing lunatics.

Tyrone
04-30-2013, 11:03 PM
Well, again you're fantasizing. Not once has a court said that a regulation is permissible because the speech or right affected in not actually abridged or infringed. The courts look at the nature and extent of the infringement and the interest furthered by the infringement.

So you are saying that the Court has sustained legislation holding that the legislation abridges the right to freedom of expression but it nevertheless is okay because the abridgment is constitutionally permissible. Please show that Constitutional jurisprudence where the Court acknowledges that legislation addresses protected speech and abridges the right of protected speech but is nevertheless Constitutionally valid. I don't think you will be able to supply such authority because when laws are sustained it is precisely because the Court finds that the law does not unconstitutionally abridge the freedom of speech. It does so either finding that the speech is not protected or that the legislation does not unconstitutionally abridge the freedom of speech.

But in either case the freedom of speech is abridged. The issue is whether the abridgment meets the standards for permissibility. I think we are getting at the same thing but through a different path. However, you are making my point that discussion of what it means or doesn't mean to "abridge" or "infringe" is key. You are saying here that the issue is not whether there is abridgment or infringement but that there is and the issue is whether such is constitutionally permissible. To make this determination you must determine the scope of what is and what is not constitutionally permissible infringement or abridgment. All that is doing is adding the term "constitutionally permissible" to infringement and then attempting to "define" what is "constitutionally permissible infringement." For the originally inquiry and your response that the definition of infringement is meaningless is a distinction without merit. Your definition of what is or what is not permissible is determined through whether is passes strict scrutiny. What I am saying and I think is clearly reflected by case law is that the court determines whether there is infringement or abridgment through the lens of strict scrutiny review. If it fails review, there is infringement or abridgment and the law is found unconstitutional. If it passes review, there is not infringement or abridgment. The latter is usually found when passing strict scrutiny that effect is so insufficient or negligible so as not to constitute abridgment or infringement. The example provided was a flag burning case wherein laws penalizing destruction of the American flag constituted unconstitutional abridgment but laws that forbid fires in public which would include burning of flags did not constitute abridgment.

No, I lost my taste for drunken, midnight, dorm room bull sessions over 40 years ago. My concerns center on what the law actually is and how best to secure court decisions most favorable to our interests.
I too am quite past the age for drunken midnight dorm room bull sessions as you call it. This is not such a session. What may serve a client in Court is not the same as objectively discussing what the law is and whether it is being interpreted properly. The law IS that the RTKBA is an individual right, applicable to the states via 14th Amdt liberty clause and the text states that such right "shall not be infringed." Focusing on the word "infringed" is absolutely necessary because if you can show that legislation is within the right protected AND then show that such right has been "infringed" the burden shifts to the proponents of the legislation to show that it either does not infringe or does not do so in an unconstitutional manner. Failure to focus on this aspect, conversely, essentially grants proponents of the law that infringement is just fine, honky dory, despite the clear reading of the constitutional text to the contrary, just as long as they can somehow manage to jump through the hoops imposed by strict scrutiny. I submit that this is a failing legal strategy and rather than focusing on what the law is exempts half of the equation. It is akin to trying to argue breach of contract without understanding the definition of both what constitutes breach and what constitutes a contract and proving that there is valid contract and that has been breached. If a contract has not been formed there can be no breach. If a contract has been formed the question then is whether conduct or lack thereof constitutes breach.

kcbrown
04-30-2013, 11:17 PM
Tyrone, you seem to getting hung up on semantics here. The point is that the analysis for any question of encroachment upon a constitutionally protected right has three steps.

1. Was the right encroached (infringed/abridged/whatever) upon.

2. What level of scrutiny applies.

3. Is that level of scrutiny met.

If you don't have something for step one, you never get to the analysis in the subsequent steps. In other words, there must be some method of determining if the law is even subject to constitutional challenge. Calling that "infringement" makes sense to me, but what you call it doesn't matter. The point is there is some finding of a prima facie Constitutional violation, and then the Court looks to see if there is some permissible purpose (some other overriding Constitutional principle).

And from what Constitutional principle, pray tell, does the scrutiny test derive? What section in the Constitution describes and authorizes that test?

This should be interesting.

sholling
04-30-2013, 11:27 PM
And from what Constitutional principle, pray tell, does the scrutiny test derive? What section in the Constitution describes and authorizes that test?

This should be interesting.

That they pulled that concept from the anal orifice clause, but you need the same reading glasses that render the 10th and half of the 14th Amendments invisible in order to see it. ;)

Tincon
04-30-2013, 11:37 PM
And from what Constitutional principle, pray tell, does the scrutiny test derive? What section in the Constitution describes and authorizes that test?

This should be interesting.

Does it matter? SCOTUS is going to interpret the laws, unless you are proposing a new system. I'd sure as hell rather have them doing it than the executive or legislative branches, they don't even seem to care about the Constitution anymore.

kcbrown
04-30-2013, 11:50 PM
Does it matter? SCOTUS is going to interpret the laws, unless you are proposing a new system. I'd sure as hell rather have them doing it than the executive or legislative branches, they don't even seem to care about the Constitution anymore.

"Does it matter?" :eek:

So is it your contention that the Supreme Court can interpret the Constitution any way it sees fit and no method is any more or less valid than any other?

So if the Supreme Court suddenly decides to break with stare decisis and declare that its interpretation of the Constitution, henceforth, is that it is merely a set of guidelines that the government can choose to ignore any time it wishes, is it your contention here that such an interpretation is just as valid as the interpretation it currently uses?

Are you comfortable with the Supreme Court operating outside of the bounds of the Constitution?

Better think carefully about whether it really matters.

Tyrone
05-01-2013, 12:14 AM
Okay, here we go.

My reference to flag burning was incorrect, it actually was draft card burning but the principles enunciated were correct. The case is United States v. O'Brien 391 U.S. 367 (1968). This case set forth strict scrutiny in the context of free speech.

The lower court history is important because the decisions were based in primary part on whether the legislation constituted an abridgment of free speech. David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs. He was charged tried and convicted for "willfully and knowingly did mutilate, destroy, and change by burning . . . [his] Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App. United States Code, Section 462(b)." In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose. [n3] The District Court rejected these arguments, holding that the statute, on its face, did not abridge First Amendment rights, that the court was not competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the Amendment was a reasonable exercise of the power of Congress to raise armies.

On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech. The Court of Appeals was of the opinion that the Amendment must have been "directed at public, as distinguished from private, destruction." On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The Government petitioned for certiorari, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the Second [n7] and Eighth Circuits [n8] upholding the 1965 Amendment against identical constitutional challenges.

The actual court opinion is key because it is the first case I believe utilizing strict scrutiny in the free speech arena. As I described in numerous posts above, the majority opinion focuses on whether the speech/conduct as issue is actually within the scope of "speech" and then also focuses on whether permissible govt regulation of "non-speech" is an abridgment.

O'Brien argued that the legislation was unconstitutional in its application to him because his act of burning his registration certificate was protected "symbolic speech" within the First Amendment. The Court found:

"We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity." This is the first element of inquiry- is the speech/conduct within the scope of 1st Amdt protected activity.

The court continues in focusing on the legislation. "This Court has held that, when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Here if permissible regulation has only "incidental limitation" and further meets the scrutiny there will a finding of no abridgment.

The Court then provides the test: "To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is (1) within the constitutional power of the Government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression, and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

The court then goes though this test finding that the regulation goes to the noncommunicative aspect that congress may properly regulate and that the law was constitutional as applied. Key in this analysis is that the governmental interest is unrelated to the suppression of free expression. This is the abridgment language.

Tyrone
05-01-2013, 12:36 AM
That they pulled that concept from the anal orifice clause, but you need the same reading glasses that render the 10th and half of the 14th Amendments invisible in order to see it.

The idea of these levels of review knows no basis from the Founders or the text of the Constitution. They are yet another lingering result of new deal. Don't get me started on Lochner. Footnote 4 of the Carolene Products case 304 U.S. 144 (1938) is what is considered the genesis. This case uses rational basis for economic legislation (milk regulation). Footnote 4 goes further and introduces us to other levels of scrutiny.

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.


Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited."

Although the decision was written by Justice Stone, there is evidence that Footnote 4 was actually initially written by his clerk Louis Lusky.

The legacy re first use of "strict scrutiny" is not too good. IIRC it was Korematsu (Japanese Internment) case. With that said, strict scrutiny in an of itself has usually resulted in the particular law being found unconstitutional. So while not as good as the absolute Justice Black mentioned in terms of infringe or abridge, it has generally served us better than alternative.

Note to Sholling: Carolene Products is one of the cases that helped read out meaning of 10th Amdt.

Tyrone
05-01-2013, 12:46 AM
That they pulled that concept from the anal orifice clause, but you need the same reading glasses that render the 10th and half of the 14th Amendments invisible in order to see it.

The idea of these levels of review knows no basis from the Founders or the text of the Constitution. They are yet another lingering result of new deal. Don't get me started on Lochner. Footnote 4 of the Carolene Products case 304 U.S. 144 (1938) is what is considered the genesis. This case uses rational basis for economic legislation (milk regulation). Footnote 4 goes further and introduces us to other levels of scrutiny.

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.


Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.

Although the decision was written by Justice Stone, there is evidence that Footnote 4 was actually initially written by his clerk Louis Lusky.

Tyrone
05-01-2013, 12:59 AM
Tyrone, you seem to getting hung up on semantics here.

True story. In one of my classes a professor was questioning another student and friend of mine over definitions and contextual meanings of certain words. The professor had the student, who happened to Jewish and wore it on her sleave, going in circles. She became agitated at the preciseness of his inquiry and exclaimed exasperatedly "this is just a matter of semantics." The professor who was sort of a curmudgeon, scowled without skipping a beat "What are you? .. Antisemantic?" :smilielol5:

kcbrown
05-01-2013, 1:16 AM
The legacy re first use of "strict scrutiny" is not too good. IIRC it was Korematsu (Japanese Internment) case. With that said, strict scrutiny in an of itself has usually resulted in the particular law being found unconstitutional.


That's true, but not quite as true as you might believe. See "Fatal in Theory and Strict in Fact" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360). The survival rate of laws that are subjected to strict scrutiny is, on average, around 30% according to that paper.

Tincon
05-01-2013, 2:07 AM
So is it your contention that the Supreme Court can interpret the Constitution any way it sees fit and no method is any more or less valid than any other?


My contention is that the Supreme Court IS going to interpret the Constitution any way it sees fit, and the only method that matters is the one they are going to use. Actually, it's even crazier than that, the only method that really matters is the one Anthony McLeod Kennedy uses.

So it behooves us to construct arguments that Scalia can get Kennedy to go along with while giving us the best possible protections of our rights. It does NOT behoove us to construct our arguments based on some anti-federalist fantasy interpretation of the Constitution that left the realm of reality more than 200 years ago.

kcbrown
05-01-2013, 2:52 AM
My contention is that the Supreme Court IS going to interpret the Constitution any way it sees fit, and the only method that matters is the one they are going to use. Actually, it's even crazier than that, the only method that really matters is the one Anthony McLeod Kennedy uses.

So it behooves us to construct arguments that Scalia can get Kennedy to go along with while giving us the best possible protections of our rights. It does NOT behoove us to construct our arguments based on some anti-federalist fantasy interpretation of the Constitution that left the realm of reality more than 200 years ago.

You'll get no argument from me on that, save this: you were claiming elsewhere and earlier that it is the duty of counsel to craft as many varied arguments as necessary to win the case, so it follows that it does behoove us to construct our arguments the way you claim we shouldn't, as long as we also construct arguments that the justices can go along with. At least that makes it possible for them to adopt those arguments in their decisions should they choose to.


In any case, what you are implicitly acknowledging is that the Supreme Court no longer operates within Constitutional bounds, else you would have answered my question as to the Constitutional principle from which scrutiny is derived. That matters, a lot, because it means we are no longer a proper Constitutional republic, but a republic of arbitrary construction ruled over by a judiciary that shapes the nature of the country as it sees fit.

There are consequences to the country acquiescing to the notion that the Supreme Court has the power to interpret the Constitution any way it wishes to, and they are not good ones. If you do not at least object to that in principle, then you are part of the problem. If you believe your principles to be irrelevant in this world, well, you're entitled to that opinion, of course. I prefer to at least act as if my principles matter in some way, even if all I can do is attempt to convince others to adopt them.

fiddletown
05-01-2013, 6:10 AM
So you are saying that the Court has sustained legislation holding that the legislation abridges the right to freedom of expression but it nevertheless is okay because the abridgment is constitutionally permissible. Please show that Constitutional jurisprudence where the Court acknowledges that legislation addresses protected speech and abridges the right of protected speech but is nevertheless Constitutionally valid....See post 50 and the 9th Circuit's opinion in Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006). The court finds that while speech is "burdened" the burden is narrow and serves an important purpose and is therefore constitutionally permissible.

See also post 68 and the discussion of Near v. State of Minnesota Olson , 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The court finds a particular statute imposing prior restraint to be an unconstitutional abridgement, but goes on to discuss circumstances under which prior restraint may be permissible. The abridgement and character of the speech would remain the same, but the circumstances and purposes served make the infringement constitutionally permissible.

...I don't think you will be able to supply such authority because when laws are sustained it is precisely because the Court finds that the law does not unconstitutionally abridge the freedom of speech. It does so either finding that the speech is not protected or that the legislation does not unconstitutionally abridge the freedom of speech...While a court finds a law does not unconstitutionally abridge the protected right, that right is still abridged. But the abridgement is constitutionally permissible because it satisfies the applicable standard.


...Focusing on the word "infringed" is absolutely necessary because if you can show that legislation is within the right protected AND then show that such right has been "infringed" the burden shifts to the proponents of the legislation to show that it does not infringe....Balderdash. Regulation by definition infringes. So it becomes the proponent's burden to establish that the regulation serves a sufficiently important purpose and is sufficient narrow. The exact test of what purpose will be sufficiently important and what impairment will be sufficiently narrow depends on the level of scrutiny applicable.

Tyrone
05-01-2013, 10:57 AM
See post 50 and the 9th Circuit's opinion in Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006). The court finds that while speech is "burdened" the burden is narrow and serves an important purpose and is therefore constitutionally permissible.

There is much discussion in this case concerning time place and manner restrictions for permitting and use on public property in Santa Monica. My read though does not support your contention. While they do find various aspects of the ordinance constitutional they do so because they find that those specific aspects have only indirect and negligible effect on protected speech. This is another instance of where permissible govt regulation not of the speech itself but of some non-speech is allowed although it indirectly may affect some speech. Most importantly though for this case, the Court specifically found that that other aspects which did abridge speech were unconstitutional. "We conclude that, as implemented by the Instruction, SMMC § 4.68.040(b) is not a narrowly tailored time, place, and manner restriction and cannot be enforced." The Court also held that "We conclude that the Instruction provides an adequate limiting construction of SMMC § 4.68.040(a) as applied to sidewalks and park paths; but, with respect to all other city streets and public ways, SMMC § 4.68.040(a) is insufficiently narrowly tailored to withstand constitutional scrutiny."

Similarly in the Near case while there is dicta in the opinion that even prior restraints may be permissible it specifically notes that such is not the issue before the court. The example given is in times of war where habeas corpus and other rights can be "suspended." I think the propriety of whether rights can be suspended in times of war or emergency is a good discussion to have but does not really apply to our inquiry or if it does it would be an outlier and none to common exception. What the Near case does do however is expound on how important and sacrosanct the right to freedom of expression, especially when, as the legislation at issue, is considered a prior restraint. The legislation in Near was struck down as unconstitutional because it abridged freedom of speech. In so doing, in the Court noted as I have contended that the initial inquiry is whether the speech is protected.

In Near, the state law at issue provided for the abatement, as a public nuisance, of a malicious, scandalous and defamatory newspaper, magazine or other periodical. The Court provides a great history on how prior restraints are at the heart of the 1st /14th Amdt protection of freedom of speech/press. The conclusion was that this law was an unconstitutional prior restraint even though the publisher was permitted to show, before an injunction issued, that the matter published was true and is published with good motives and for justifiable ends. "For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment." This too does not support your contention.

Balderdash. Regulation by definition infringes.
In the context of free speech, as pointed out in O'Brien and Near and Santa Monica Bombs, the legislation cannot be directly related to content or suppression of speech. What is allowed is if the regulation is based on non-speech related conduct but indirectly and negligibly may affect that speech. For our purposes this again makes the defining and discussion "infringe" paramount. By analogy if the purpose of the regulation was to suppress or infringe the RTKBA it would infringe and be invalid. However, if the govt was truly regulating non-RTKBA which had only an incidental and negligible effect on RTKBA, such may be permissible if narrowly tailored etc... Herein lies the rub because some of the legislation is purportedly to address safety, the problem is that it not only fails to address safety but it does so in way which is not narrowly tailored nor uses the least restrictive means. This all goes to whether the RTKBA is being infringed.

Tincon
05-01-2013, 12:24 PM
There are consequences to the country acquiescing to the notion that the Supreme Court has the power to interpret the Constitution any way it wishes to, and they are not good ones.

I tend to acquiesce to reality.

You kinda remind me of this guy: W8qcccZy03s

Tyrone
05-01-2013, 12:25 PM
That's true, but not quite as true as you might believe. See "Fatal in Theory and Strict in Fact". The survival rate of laws that are subjected to strict scrutiny is, on average, around 30% according to that paper.

Thanks for the link. This is a good read and discusses much of what we have we been discussing in this thread. I was aware that laws did pass strict scrutiny and as you point out a little bit more than I would have thought because I was admittedly focusing on the S.Ct. which only sees a small portion of the cases. For the S. Ct. only 1 in 12 passed under this study. I haven't quite got through it yet but I am interested in seeing why the rate of passage is higher when there is infringement on religious liberty (free exercise) as opposed to other categories of strict scrutiny.

Good news for now is that it seems progressively more difficult to sustain a law under strict scrutiny analysis.

Tyrone
05-01-2013, 1:17 PM
I tend to acquiesce to reality.
We all deal with reality. This argument reminds me of the often quoted "you can beat the rap but you can't beat the ride." The immediate reality for a person arrested person is that they are going to the jailhouse to be booked regardless of whether they are right about the law. The ride. Ultimately the reality may be that the person is found to be not guilty or charges dropped etc... The rap. Perspective is key.

For our discussion this issue goes back to the "legal realists" as they called themselves wherein they shifted focus and it mattered more who the judge was than how neutral that judge professed to be because all judges no matter how hard they tried had their own personal experiences from which they judge instead of applying law to fact. While there is an element of truth that judges are people to and subject to same temptations, etc... as well as truth in that the end result of a judge's ruling may be based on personal predilection rather than application of law to facts, that should be the rare exception and not the expected norm. By "acquiescing" to what you deem reality, you are in fact giving legitimacy to acceptance of judges judging by personal predilection rather than adherence to goal of neutrality and strict application of law to facts. This facilitates destruction of the rule of law. The govt is only as good as those we put in power and this depends on what standards to which we hold those people. So, yes, it matters whether we demand that people we elect as President will only nominate those justices who as best they know will exercise judicial restraint and limit interpretation of the constitution as best as possible to application of law to facts and remain neutral in all other respects. Similarly it matters whether we demand of our Senators that they to require the same of any judge to which they must give consent. To do otherwise is not to ignore reality but to make reality one in which such judges are neither desired nor nominated.

navyinrwanda
05-01-2013, 4:40 PM
The textual basis for gun regulations doesn't depend upon changing meanings of the word infringe or on the application of tiered scrutiny.

It's because the Second Amendment protects the right to keep and bear arms and not all keeping and bearing of arms.

UCLA law professor Eugene Volokh explained the concept in the context of the First Amendment by answering the question, Which Part of “Make No Law” Don’t I Understand? (http://www.volokh.com/2011/07/26/which-part-of-make-no-law-dont-i-understand/)

kcbrown
05-01-2013, 5:35 PM
I tend to acquiesce to reality.


Really?

Then what are you fighting for, if you are just acquiescing to reality as it is?

curtisfong
05-01-2013, 5:42 PM
UCLA law professor Eugene Volokh explained the concept in the context of the First Amendment by answering the question, Which Part of “Make No Law” Don’t I Understand? (http://www.volokh.com/2011/07/26/which-part-of-make-no-law-dont-i-understand/)

The consequence of which is that strict scrutiny seems utterly toothless if legislators can come up with arbitrary (and unprovable in efficacy) laws that ban keeping and bearing arms outright because they do not infringe on the right to keep and bear arms.

Same old excuses. Public safety. Officer safety. National security. Think of the children. Terrorism. Sedition. Enemies of the state. ad nauseum.

navyinrwanda
05-01-2013, 5:59 PM
The consequence of which is that strict scrutiny seems utterly toothless if legislators can come up with arbitrary (and unprovable in efficacy) laws that ban keeping and bearing arms outright because they do not infringe on the right to keep and bear arms.

Same old excuses. Public safety. Officer safety. National security. Think of the children. Terrorism. Sedition. Enemies of the state. ad nauseum.
Volokh is on record criticizing some courts for making errors (http://www.volokh.com/2013/03/21/fourth-circuit-upholds-maryland-restrictive-licensing-system-for-gun-carrying/).

Of course, if you believed everything that the people promoting these lawsuits said, then you couldn't help but think that the American legal system was a joke. The marketplace for ideas can do better. Like actually challenging the efficacy of various laws, for example.

curtisfong
05-01-2013, 6:30 PM
Volokh is on record criticizing some courts for making errors (http://www.volokh.com/2013/03/21/fourth-circuit-upholds-maryland-restrictive-licensing-system-for-gun-carrying/).


An excellent article which I have read and re-read many times. It is what actually informs my skepticism of the scrutiny regime (which you'll find in most of my posts questioning scrutiny).

I understand that constitutional scholars (and many lawyers) are skeptical of the protection against abuse that scrutiny allegedly provides. We might even agree that some judges are aware of it's toothlessness. But until there is a *legal basis* that undoes that regime, even proving *inefficacy* (as opposed to simply disproving efficacy) would be insufficient. As long as a given legislature can show that *it* did its due diligence (no matter how flawed), a sufficiently biased judge can find any law survives strict scrutiny, given the roadmap that volokh sets out, and that decision can potentially survive any appeal at any level.

Tincon
05-01-2013, 6:45 PM
Then what are you fighting for, if you are just acquiescing to reality as it is?

I'm fighting for our rights, within the framework of reality. When you exit that framework, efforts become less effective.

kcbrown
05-01-2013, 6:55 PM
I'm fighting for our rights, within the framework of reality. When you exit that framework, efforts become less effective.

Except that we're not arguing what actually is. What actually is right now is that the judiciary has effectively unlimited and extra-Constitutional power, and is capable of interpreting the Constitution in any way it pleases regardless of what legal arguments are actually put forth, and getting away with it.

How do you propose to work towards what should be if you refuse to even acknowledge it?

curtisfong
05-01-2013, 6:59 PM
Except that we're not arguing what actually is. What actually is right now is that the judiciary has effectively unlimited and extra-Constitutional power, and is capable of interpreting the Constitution in any way it pleases regardless of what legal arguments are actually put forth.

How do you propose to work towards what should be if you refuse to even acknowledge it?

Perhaps NIR is on the right track. Even if proving inefficacy (or disproving efficacy) is insufficient in the current scrutiny regime, perhaps pointing out the madness that it *is* insufficient might spark a sea change in the scrutiny regime itself?

Granted, it is a very tough road to hoe, but I see no other choice.

Tyrone
05-01-2013, 7:04 PM
The textual basis for gun regulations doesn't depend upon changing meanings of the word infringe or on the application of tiered scrutiny.

It's because the Second Amendment protects the right to keep and bear arms and not all keeping and bearing of arms.

UCLA law professor Eugene Volokh explained the concept in the context of the First Amendment by answering the question, Which Part of “Make No Law” Don’t I Understand? (http://www.volokh.com/2011/07/26/which-part-of-make-no-law-dont-i-understand/)

This is in large part what I have been saying. The first focus is definition of the scope of the right and what is and what is not included. However, the second part of the equation is then whether that "right" has been "infringed." This seems to be where we part. Although I tend to agree with Hugo Black in that defining the scope should end the analysis and any abridgment is therefore forbidden, and think we should continue to argue the same, the meaning of "infringe" in the various contexts in which the rights are discussed and in which cases arise, requires discussion of its definition and scope.

kcbrown
05-01-2013, 7:08 PM
Perhaps NIR is on the right track. Even if proving inefficacy (or disproving efficacy) is insufficient in the current scrutiny regime, perhaps pointing out the madness that it *is* insufficient might spark a sea change in the scrutiny regime itself?

Granted, it is a very tough road to hoe, but I see no other choice.

I agree that we should probably have at least one case with that kind of approach.

In reality, we should be trying a whole bunch of things (more or less) simultaneously, e.g. open carry, because we simply don't know what the judiciary will really uphold.

We do know a couple of things, however:


The judiciary will not uphold that which we do not ask for.
The right will remain unprotected unless we ask for, and get, certain things at a minimum.



As our goal is to have the right protected, we have to essentially ask for some form of that. If NIR is arguing that what we should ask for is something else, then I want to hear what he's proposing we ask for.

Tyrone
05-01-2013, 7:17 PM
Perhaps NIR is on the right track. Even if proving inefficacy (or disproving efficacy) is insufficient in the current scrutiny regime, perhaps pointing out the madness that it *is* insufficient might spark a sea change in the scrutiny regime itself?

Granted, it is a very tough road to hoe, but I see no other choice.

Yes, we need to continue to make these arguments and point out the problems associated with scrutiny when the clear text provides the best guidance. If the arguments are not made they are not ruled upon and there then is no ability change the current momentum. If issues aren't raised they are waived. This does not mean, as some suggest, that that we ignore other arguments or current legal structure and hold steadfastly to an argument that a judge is indicating is going nowhere all to our peril. Rules of statutory construction, history, and real common sense, however, are on our side. Thus, we need to keep these arguments in the briefs, in the legal treatises, and in the law. The New Deal legislation was antagonistic to nearly 150 years of American Constitutional jurisprudence and many more when looking at the history of the English Common Law. It was repeated and persistent efforts that made these previously thought inconceivable legal theories take hold.