Sunday, February 8, 2009

The Meaning of 'Shall Not Be Infringed'

UPDATED Monday, April 13, 2009

As a result of Second Amendment dispute, it has been suggested that to infringe relative to the fundamental right to keep and bear arms means only to completely destroy the right, and that extensive "reasonable" regulations are legitimate and do not infringe the right. As an example, it has been claimed that a complete ban on certain types of firearms is a “reasonable” regulation and would not violate the "shall not be infringed" restrictive language. A contrary understanding is that infringe means to encroach upon or narrow the right in any way and that the purpose for the "shall not be infringed" language was to prevent regulation of the right.

An excellent method for determining how extensive the Bill of Rights protection based on the verb "infringe" was intended to be in the Founders' view is to rely on historical examples. What can be gleaned from their own use of this term in relation to other Bill of Rights proposals? Here are some of them.

James Madison's Usage
The Second Amendment's "the right of the people to keep and bear arms shall not be infringed" language is exactly what was proposed as the first clause of the amendment by James Madison on June 8, 1789. In addition to that "infringe" based language, Madison also included this freedom of religion related protection in his Bill of Rights proposals to Congress: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” [The Origin of the Second Amendment p.654] Assuming that Madison's intention in preventing religious liberty from being “infringed” was to allow for considerable "reasonable" regulation by the federal government is illogical. In fact, it is clear that the intent of such language was to prevent any interference whatsoever by the government in such matters. The later change to “Congress shall make no laws” language buttresses this period understanding of "infringe" based protection.

Samuel Adams' Usage
Another person who used "infringe" in bill of rights proposals for the Constitution was Samuel Adams in the Massachusetts Ratifying Convention. He attempted to protect freedom of the press and religion with this proposal: “that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience”. [OSA p.260] It is unthinkable that such usage by Adams indicated an intention to allow extensive reasonable regulations of freedom of the press and religious beliefs. Instead, such language was certainly intended as the strongest of limits upon government actions, just as in Madison's case with his infringe based restrictive proposals to Congress regarding freedom of religion and the right of the people to keep and bear arms.

Congressional Amendments Committee Usage
There is other informative period Bill of Rights related use of "shall not be infringed" language often overlooked today due to gun control advocates' historical arguments diverting away from the Second Amendment's actual Bill of Rights history. The Committee of Eleven, to which Madison's proposals were submitted by Congress, accepted his original use of "infringed" relative to freedom of religion as well as his "shall not be infringed" language relative to the right of the people to keep and bear arms. The Committee also added Madison's original Second Amendment restrictive language ("shall not be infringed") to other First Amendment rights – freedom of speech - freedom of the press - the right of peaceable assembly - the right to apply for redress of grievances. All of these, including Madison's “inviolable” freedom of the press and his right of the people to speak, of which they “shall not be deprived or abridged” [OSA p.654], were re-stated by the Committee as rights that “shall not be infringed”. [OSA p.680] Once again, it does not appear that such period usage indicated the Committee members understood that religious beliefs could be subjected to extensive reasonable regulations, or that they used "shall not be infringed" with the intention that it would condone extensive and reasonable regulation of freedom of speech, freedom of the press, the right of peaceable assembly, the right to apply for redress of grievances, or the right to keep and bear arms.

Interpreting this restrictive "infringe" based language in the manner that some advocates of gun control do for Second Amendment usage removes all meaning of the terminology and completely destroys any protective intent of the provision. Such interpretations leave the intended protected rights to be regulated exactly like any other subject placed under the government's power. Such views of the language completely ignore the developmental history of the Bill of Rights, a history that is remarkably well documented because the need for a U.S. Bill of Rights was publicly and privately discussed for more than two full years prior to Congress' proposal of the U.S. Bill of Rights amendments.

Shall Not Be Infringed - Shall Make No Laws
Another interesting period fact is that the style of restrictive language ultimately used in the First Amendment – "Congress shall make no laws" - was previously found mostly in Second Amendment related proposals.

The Pennsylvania Minority supported a proposal that: “no law shall be passed for disarming the people, or any of them, unless for crimes committed, or real danger of public injury from individuals". [OSA, p.151]

The New Hampshire Ratifying Convention adopted proposals related to the subsequently adopted First and Second Amendments that stated:
"XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion". [OSA, p.446]

The restrictive language of New Hampshire's amendment protecting religious freedom contains not only the very words later used as restrictive language in the First Amendment but also the very strongest of restrictions that is based on the verb "infringe". It is inconceivable that infringe was intended in New Hampshire's religious freedom amendment as intended to allow any regulation whatever.

The Strongest Possible Restrictive Language
First and Second Amendment protections were always given the very strongest possible restrictive language – no law shall be passed – shall make no law – inviolable – not be deprived or abridged – not be restrained - shall not be infringed - nor shall the right be infringed - shall make no laws touching - shall make no laws to infringe. The Second Amendment's “right of the people to keep and bear arms shall not be infringed" language was clearly not intended to allow for extensive reasonable regulation. Rather, it was intended to prevent all laws and regulations that would result in the people being deprived, abridged, restrained, narrowed, or restricted in the exercise of their fundamental right to keep and bear arms.

26 comments:

  1. Spot on, David. Thanks.

    I once tried to argue against an anti who insisted that if you can have any gun at all then your right to keep and bear arms is not infringed.

    I tried to draw an analogy with property. If my neighbor's fence 'infringes' on my property by a few feet, is that ok because I still have 22 feet of property left? I doubt any homeowners would go along with that.

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  2. So what does this mean in a practical context? For example, under what circumstances can the government forbid you from carrying a gun, either concealed or openly? I would suggest there would have to be an overlying need of govenment - as in a courthouse - coupled with a means of ensuring compliance (metal detectors or searches) and (most importantly) the assumption by the government of the duty to provide protection to the disarmed from all assault. In such a circumstance, the government should be held to a standard of strict liability if it fails to protect, regardless of the degree to which it tries to protect.

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  3. The government does not have a duty to provide protection to the unarmed. The SCOTUS has already decided that the government owes no duty to the individual whether armed or not. "Shall not be infringed" apparently means exactly what it says, practically or impractically. The Constitution either means what it says, or it doesn't. You can't have it both ways.

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    1. Ok, but then where in the Constitution does it speak to the right to "use" arms? Presumably this would default to the states and thus any state could constitutionally ban the use of arms but still allow one to keep and bear arms. An absurd outcome that results when one adopts the narrow view "the Constitution means what is says."

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    2. Ed,
      One has freedom of speech. Following your logic, the Constitution must also permit one to actually speak, talk, print.

      What is the natural order of the Bill of Rights if one must have a right AND the right to enjoy it? Two separate rights?

      If one has the right to bear arms, then one has the right to "use" them.

      If the people must ask permission from the oppressive government in question to rebel, is it truly a rebellion?

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    3. The Declaration of Independence put it this way . . . . it is their right, it is their duty

      Yes, our duty.

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  4. If there were actual restrictions on the actions of people, instead of our catch-and-release system of "justice", restrictions of RKBA wouldn't be an issue. As far as the government restricting arms in a courtroom or other facility goes, well, the government SHOULD be scared of an armed citizenry.

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  5. Actually, the government does have a duty to protect the disarmed in some circumstances - like those in jail and in prison. When security breaks down, and prisoners are injured, lawsuits are routine. When an armed BART policeman killed a detained suspect by shooting him in the back, one of the first results was a lawsuit for $25 million filed against the government.

    I am suggesting that one outcome of the Heller decision will be a redefinition of when the government can disarm an otherwise lawfully armed person. We should insist that whenever it is allowed, the government assumes a strict liability for the disarmed person's safety. That raises the ante for the government, and will discourage them from doing it willy nilly - like they do now.

    If you think there will never be times and places where the government will disarm you, then you wish for what never was and never will be. (There may be periods of anarchy when everyone may be armed as they wish, but that will not be a period of government under law.) Government exists to protect the rights of individuals (among other reasons). One of those rights is the right to a fair trial. That cannot be achieved if every spectator at a trial were allowed to be armed. Put another way, to allow armed people into a trial would destroy the right to trial by jury. Only trial by mob would exist.

    Like it or not, government is a balancing act where the rights of some are balanced against other rights of others.

    The Heller decision gives us a chance to restore the balance a little more in favor of the Second Amendment. But if you think all the other rights of the people are going to lie down in subjugation to the right to keep and bear arms, then you are no better than an anarchist.

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  6. In these posts I see the word government. Remember, the Constitution and the Bill of Right apply to the Federal Government.

    The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    The way I read it is the Federal government is forbidden to pass gun laws that infringe but the states are not. That is, of course, if the state constitution also doesn't forbid it, too.

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    1. The Federal Term supercedes the states regulation. The sates cannot regulate the right to bear arms and cannot infringe on those rights. The right to bear arms shall not be infringed. Their reasons are not as relevant as the intention to give this right to the individual people. Tragedys can often be stopped and mitigated where an individual can protect themselves and groups such as in Aurora. An armed individual may have been able to stop the gunman when they made their warning shot in the air. People should be trained and understand their rights as well use then for their protection as a central government is woefully unprepared for individual defense.

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  7. Kevin,
    How can one have a Right under Federal law and have it taken away by a State.

    In modern verbiage without the pronoun "it" the tenth reads more like...

    The powers not delegated to the Federal Government by the Constitution, nor prohibited by the Constitution to the States, are reserved to the States respectively, or to the people.

    The Second Amendment is...

    "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"

    Look at the verbiage.
    "free State" is a proper noun meaning "Sovereign State", "Country", "Nation" not "States" as in the thirteen states. Originally "The United States" meant our 13 States we independent Sovereign States united by laws governing interstate trade, international trade and mutual defense.

    Infringe is a verb.
    The rules of English grammar state (from memory) "a sentence must contain a verb and the subject of the verb, if the subject of the verb is omitted then it is all inclusive"

    Shall not be infringed upon by whom?

    So if "shall not be infringed" is verb phrase, what is the subject of the verb in the second amendment?
    Nouns, pronouns, proper nouns used.
    "Militia"
    "Free State"
    "Right"
    "The People"

    Shall not be infringed upon by whom?
    The "Militia"?
    A "Free State"?
    A "Right"?
    "The People"?

    There is no subject of the verb in the Second Amendment. It is therefore all inclusive.
    No entity shall infringe.

    No State, Country, Nation, God. And no, not even "The People".

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  8. There is a big difference between "congress shall pass no law", vs. "shall not be infringed". The idea that congress can "pass no law" is a restriction on the Federal government; the idea that a right "shall not be infringed" applies to ALL levels of government.

    ---

    However, I don't think that it is so difficult to reconcile any reasonable restrictions on guns as still being reasonably constitutional. For example no one believes that a fundamental right to freedom of speech should entitle one to yell "fire" in a crowded theater, neither does anyone believe that a right to keep and bear arms entitles one to carry a loaded pistol into a courtroom.

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  9. Question. What are "arms"?, and at what point will we as a nation decide to end this silly game of the constitution says and pass and amendment that speaks more to the dangers poised by arms in today's society. If you've murdered someone before should you be allowed to own a gun? If you've made a threat to kill someone should you be allowed to have a gun? The constitution was written during a time when a militia could be raised fairly quickly to oppose a foreign invader. I don't think anybody expects citizens to do this anymore. This is why all males as of age 18 register for the draft and also why we spend trillions of dollars on a Defense budget.

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    1. You CANNOT amend the Bill Of Rights. To do so would "INFRINGE" on the rights!! Make sense?? It's simple logic. The ninth one in fact supports all the others. The word "shall" is used in just about every one, not "can", or "may", or "could", or "would", or "should". Shall means what it says and says what it means, that is why they chose it for verbiage!!!!!!

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    2. The technical meaning of "arms" in teh Eighteenth Century was individual weapons and equipment for combat service. For example, "a stand of arms" (the basis under which colonels were required to equip their regiments, under the privage patronage regimental system britain used shortly before the Revolution) was the weapons AND EQUIPMENT considered necessary to equip one soldier for combat. It did not include his uniform, tentage, or food, but it did include his military grade long arm, his sidearms (which, depending on the period and regiment, could include some or all of the following -- sword, ax, bayonet, dagger, and/or pistol), and his cartridge box. "Arms" for other branches of service varied based on teh duties of an individual soldier in that type of unit -- lancers needed lances, mounted troops and artillery needed shorter long guns like carbines, etc.

      Militia laws that defined "arms" included an individual supply of ammunition as well, which makes sense.

      Note, however, that cannon were not "arms" in the military lexicon -- they were "pieces of ordnance". Grenades (and grenade launchers, which, yes, they DID have) were not "arms" -- grenades were "munitions" and the launchers were generally classed as "ordnance".

      So, it is perfectly logical to state that the "arms" referred to in the amendment refers to things that make up the "ordinary military equipment" for individual soldiers (M16, M4, submachineguns, pistols, bayonets, web gear, body armor, etc.), but not the heavier support weapons that are crew served (cannons, heavy machineguns, nukes -- while these ARE "signed out" ultimately to the senior guy on the crew, you really assign the crew to the weapon, not vice versa) or issued out for unit support (grenade launchers, AT rockets, etc. -- see above; if the guy carrying the grenade launcher gets hit, you don't evac him with the GL; THAT stays with the UNIT).

      Of course, saying something is not DIRECTLY protected by the Second Amendment is not the same as saying it has NO protection -- howitzers could be protected by a penumbra, or even under the 9th and 10th Amendments. This would require adjudication to firmly establish where heavy support weapons fall.

      The status of something like a light machinegun (BAR, M249 SAW, RPK) which are issued out for unit fire support but are also the personal defensive weapon for the individual issued them would be in a grey area, requiring adjudication.

      Likewise, claims that cannon and grenades are protected by teh 2nd Amendment "Because they were legal in Colonial and Founding times!" are empty. Just because something is not prohibited, doesn't mean it enjoys Constitutional protection under the Second (or any) Amendment. Maybe cannon are protected under the 2nd, maybe they aren't, or maybe they have a "penumbric" protection of lesser intensity than the protection given to individual arms -- all the legislative record shows us is that teh Founding fathers did not outlaw private ownership of heavy ordnance, not that they thought it was specifically protected. It could simply be that while they DIDN'T mean "cannon" when they said "arms", they simply didn't think there was a huge crime wave of robbers using field guns; therefor there was no REASON to pass a law prohibiting ownership of a very expensive hunk of iron and wood.

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  10. I quite agree with Jermel. "Arms" is the word in the Second Amendment that is open to interpretation and must necessarily change as technology changes. We say "nuclear arms". Does this mean we should make nukes freely available to all law-abiding Americans? Of course not. A hunting rifle is one thing. An automatic assault weapon is another, and where do we draw the line? Our founding fathers could not have anticipated these technological issues.

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    1. What you are saying then is that the citizen's right wouldn't be infringed only if they remained in the technology of the period. THAT IS TOTAL NONSENSE!!!!!! Use your head, it means what it says.

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  11. That's a little naive S.A., the term "Arms" is used precisely because the founders knew they could not anticipate new technology. Otherwise they would have said "musket" or "flintlock". The basis here was to put the citizen where they could keep a potentially tyrannical government in check. "Arms" is the only means to do so, as they had clearly just demonstrated.

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  12. Jermel and S.A., I suggest you consider the U.S. Supreme Court's majority decision for D.C. v. Heller (128 S.Ct. 2783 (2008)), especially the following:

    " b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

    The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Id at 2791.

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  13. If you read the Declaration you have all the Meaning you need on what Governments can do what.


    That whenever any Form of Government becomes destructive of these ends, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.


    These Documents are linked and always will be until we surrender or are destroyed!

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  14. "infringe", verb: to limit, undermine or encroach. I think the **HANDS OFF** meaning of "shall not be infringed" has been more than ignored. All limiting gun laws at any level therefore by their nature are unconstitutional. What is difficult to understand about that?

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  15. Do all you people lack the ability to read? The Second Amendment is but a single sentence, yet all 2nd Amendment advocates ignore the first half of the Amendment.... "A well regulated Militia, being necessary to the security of a free State". Obviously, the intent was that there would be no standing army and the population would have to defend itself via militias. No Militias=no right to bear arms!

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    1. I read and have been researching this. I do agree that looking at ANY part of the second amendment without understanding the rest is rather pointless. We have to keep in mind what the framers of our Bill of Rights were thinking and what definitions they were using. We can NOT base the interpretation of any part of the Bill of Rights without using THEIR definitions of the words used.
      http://www.godseesyou.com/2nd_well_regulated_militia.html

      http://www.guncite.com/gc2ndmea.html

      I give you those links for reference on THEIR view of what it meant.

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    2. Nice red herring.

      The Second Amendment has been repeatedly examined by semanticists and other experts.

      There is no honest way to interpret it in English as being a right dependant on one's membership in an official militia.

      In other words, the PURPOSE of the right is to enable a militia -- but that PURPOSE is not the actual RIGHT being espoused. The first phrase is a dependant, explanatory clause -- and such constructions were commonly used during the period in question to draft laws -- "Why do we need this, and what does this law do?"

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  16. The purpose of the Second Amendment is to arm people in order to prevent future tyranny. They need the tools to do this. The term "Well Regulated" in the Second Amendment meant "Well Manned and Equipped " in 1791 as was determined in the 1939 United States v. Miller case after referencing the autobiography of Benjamin Franklin. The concept of Government Regulation, as we understand it today, did not exist at the time. United States v. Miller also determined that the term "Arms" refers to "Ordinary Military Weapons". American Citizens have the right to Keep and Bear, which means Own and Carry, any weapons that a soldier carries into battle. That includes past, present and future weapons. A Militia consisted of armed volunteers willing to fight with their personal arms and not under contract. "Shall not be infringed" means no government restrictions.

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