shall not be infringed*

Discussion in 'National Laws, Bills and Politics' started by Taurus92, Nov 5, 2017.

  1. Taurus92

    Taurus92 Well-Known Member

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    https://www.nraila.org/articles/20171103/this-man-did-not-write-a-second-class-amendment

    About James Madison, June of 1789.

     
    Last edited: Nov 13, 2017
  2. Taurus92

    Taurus92 Well-Known Member

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    This might be a better place for this.

    Maybe some english whiz can diagram the 2A with and without the "shall not be infringed" and tell us why it isn't a complete sentence without it and what that really says about the 2nd Amendment.
     

  3. gunsmoker

    gunsmoker Lawyer and Gun Activist

    The "right" has to have some limits. Not every right is infinitely broad and covers every imaginable weapon, person, and circumstance.

    Yet, this would not be an "infringement" if those things were not part of the "right" as guaranteed in the 2A itself, as it was known and understood by the Framers.

    A good example would be very young children, and another example would be slaves.
    Kids and slaves had no right to own and possess firearms, apart from whatever privilege to do so was granted by their parents / masters.
    Therefore, any law that restricted gun possession by slaves or children could not violate the 2A.... it would not "infringe" on it at all.

    Now, the $64,000 question is what other situations involving weapons and weapons carry also are outside of what was envisioned by the Framers, using their original intent? Anything that they did not understand in the 18th century to be a right of free men with regard to weapons is arguably outside of the 2A, and banning or restricting it with laws of the legislature are not even infringements.
     
  4. Taurus92

    Taurus92 Well-Known Member

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  5. TimBob

    TimBob Old, Slow, Boring Dude

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    So, the government is our parent or master? I thought it was the other way around...
     
  6. gunsmoker

    gunsmoker Lawyer and Gun Activist

    No, you're not getting it.
    You can't infringe thin air.
    You have to infringe SOMETHING.
    What is it that the 2A says you can't infringe?
    It's the bundle of rights that are included with the Second Amendment.
    And that's ALL. Nothing more.
     
  7. Taurus92

    Taurus92 Well-Known Member

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    In summary:
     
  8. Taurus92

    Taurus92 Well-Known Member

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    Did you just defeat yourself?
     
  9. gunsmoker

    gunsmoker Lawyer and Gun Activist

    you're still not getting it.

    If you want to think that I'm saying that you're all slaves and government is your master, fine. You'll have more fun playing with that fantasy anyway.
    You can understand that, and it won't hurt your brain thinking about it.
     
  10. Taurus92

    Taurus92 Well-Known Member

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    Actually, the request was to diagram the sentence structure of the second amendment, not your rather unique personal definition of what infringed means and how you try to justify that in the real world.
     
  11. gunsmoker

    gunsmoker Lawyer and Gun Activist

    establishing the boundaries of a constitutional right comes first, before you can evaluate whether a particular law or action by a government agent is an infringement.
    That's legal analysis. Not unique or personal. That's how lawyers and judges think, and their analysis should be really important to you because that's the "real world" you live in.

    As for the idea that the scope of a constitutional amendment should be determined by the original intent of its authors, that's a more controversial idea that not all judges or legal scholars follow. Most of them want outcome-based construction of constitutional provisions, so the "right side" wins and the "wrong side" loses, and political correctness (whatever pop culture says is "right" or "wrong") saves the day and puts those nasty Neanderthal conservative cretins in their place.

    However, "original intent" is still alive when it comes to Second Amendment cases, and I hope it is used more strongly in the future.
     
  12. Taurus92

    Taurus92 Well-Known Member

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    And again, you're ignoring the request to diagram the sentence. You justify not diagramming the second amendment because activist judges rule and they rule by also not diagramming the law as written. Therefore, written laws are mere suggestions, or worse, until the list of activist judges can be exhausted and new, unwritten laws come into effect. I'm sure such nonsense was the intent of the founders.

    Now, is anyone interested in diagramming the second amendment with and without "shall not be infringed"?
     
  13. Taurus92

    Taurus92 Well-Known Member

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    "shall"

    Like "shall be issued" vs. "may be issued" as in licenses. Except in the case of activists that think shall be issued is the same as may be issued or may not be issued as long as it fits their particular cause for that day.
     
  14. Taurus92

    Taurus92 Well-Known Member

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    Here's somewhat of a breakdown, but he uses the fully loaded with commas version. Interestingly, he argues they should be thrown out anyway.

    Still, he comes to:
    It's a little odd to me, this was dated 2013 and he never references Heller and calls the two clauses the "independent" clause and the "participial" clause as opposed to the "operative" and "prefatory" clauses.
     
  15. Taurus92

    Taurus92 Well-Known Member

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    This guy gal may be biased, but he she breaks it down.

    as opposed to "is limited to in your home", "in multiple pieces", "is limited to revolvers" or any other flavor of restriction.

     
    Last edited: Nov 12, 2017
  16. 45_Fan

    45_Fan Active Member

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    The right is “limited” much in the same way your 1A right is limited with yelling “fire” in a crowded theater. The 2A was never meant to protect a supposed “right” to blanket annoying neighbors under artillery fire or shoot individuals one disagrees with. Beyond the natural limitations that preserve the life/liberty/property of others, one would be hard pressed to present history up through the Civil War that shows any expectations that civilian armaments should be restricted or limited while government armaments are not. It was never the desire of the founders for the country to have a standing army but clearly the desire for the citizenry to remain sufficiently armed that any incursion of force could be turned back.

    Or another way....
    In 1810, what armaments were restricted from civilian ownership but maintained by the government?
     
    Taurus92 and AtlPhilip like this.
  17. AtlPhilip

    AtlPhilip Proud GCO member.

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    Yes, that is exactly what they meant when they said "shall not be infringed".

    Shall (v)
    - used in laws, regulations, or directives to express what is mandatory

    Not (adv):
    - used with an auxiliary verb or “be” to form the negative.

    Be (v):
    - occur; take place.

    Infringe (aux v):
    - act so as to limit or undermine

    Simple logic refutes your argument. The second amendment was intended as a defense against an out of control government. If you allow the government to control ownership of the means to overthrow the government, the amendment itself serves no purpose.

    It is also worth noting that every other amendment uses the less restrictive language "congress shall pass no law".
     
  18. Taurus92

    Taurus92 Well-Known Member

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    Not to get off track, but I find the wording of the 3rd Amendment quite interesting knowing their thoughts on a standing army. They also clearly distinguish between "soldiers" and "the people" in the wording of the 2A and the 3A. They were not confused on army vs. militia as some people seem to think.

    Back to your post, I find amusing the discrepancy in thinking we would have much of a chance turning back any enemy with what the gun grabbers would have us left with.
     
  19. Taurus92

    Taurus92 Well-Known Member

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    This gets to my point. The guts of the Second Amendment is "shall not be infringed". If an amendment was "The White House shall not be burned", the White House is simply the object and "shall not be burned" is the action. It's not optional, it's the main point.
     
  20. Taurus92

    Taurus92 Well-Known Member

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    Also, someone somewhere mentioned Theodore Roosevelt and the Rough Riders were all volunteers in the late 1890's. Apparently, arming them was a mix of supplies from the military and civilian donated machine guns.