The Second Amendment, Gun Control, and the Meaning of “Infringed”

Brian Zick

The Second Amendment states: "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." Adam Liptak for the NY Times reports on the evolution in Second Amendment thinking by legal minds conventionally described as “liberal” - he points particularly to Laurence Tribe, Akhil Amar and Sanford Levinson. There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns. That characterization certainly suggests a noteworthy shift in constitutional interpretation. But Liptak also states: And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason. Well, whatever the fuck that’s supposed to mean, Liptak doesn’t see fit to address it. Because he’s pretending that the foundation of legal reasoning for pro-gun control has "lost" its liberal advocates, even though that conveniently ignored qualifying phrase "only for good reason" completely contradicts his thesis. Liptak charges ahead and declares: The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well. That may be an accurate statement, but it is nevertheless quite irrelevant. A sentence diagram of the Second Amendment, as interesting as it may be for students of linguistic architecture, is beside the point. Except as red-herring. Liptak tries to make the “pro gun-control” argument totally dependent upon a reading of the sentence that makes the second part conditioned upon the first - i.e. the “right to bear arms” being a condition of “a well-regulated militia.” Whatever the merits of the grammatical debate, opponents of gun control - in typical dishonest fashion - have constructed an alternative sentence, for purposes of comparison, with which they pretend to demolish the premise of grammatical conditionality (which may or may not exist) as if that somehow equates to eliminating legal authority for regulation. It's a bait and switch argument built on a strawman."A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed." Pretty clever, hey. Of course, though it is a handsome grammatical parallel, it is a totally bogus comparison for legal purposes. Because it’s a loaded equivalency which relies on the reader’s automatic favor of the First Amendment, which is cynically built into the equation unstated. A more appropriate parallel sentence - unaided by the prejudicial assist of the First Amendment - might be, for example: “A well-trained motoring public, being necessary to the safety of free public roads and highways, the right of the people to keep and operate automobiles shall not be infringed.” Licensing and traffic laws are an imperative for public safety. And they are not conditioned on the level of driver training which exists. Even excellent drivers are obliged to stop at stop signs. Obviously, the government plainly has authority to regulate automobile use. And so too firearms. Here's another: “A good diet, being necessary to the health of the citizenry in a free State, the right of the people to buy and eat food shall not be infringed.” Or how 'bout:“Good healthcare being necessary to promote the general welfare of the public in a free State, the right of the people to buy and consume pharmaceutical drugs shall not be infringed.” Or this: “Safe medical procedures being necessary to secure the blessings of liberty to ourselves and our posterity in a free State, the right of the people to decide with their doctor their choice of treatment shall not be infringed.” Examining the grammer of a truism followed by a declarative statement about public access to an article of trade or commerce not being "infringed" does not address the question of government regulation authority. The argument over pro or anti gun control turns not on any condition of “well-regulated militia” but on the meaning of “infringed.” And here it is helpful to refer to the First Amendment, and how it is interpreted. Though “infringed” may not be exactly synonymous with “abridged,” for purposes of legal understanding the two words have very similar meaning, certainly to ordinary citizens. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Though a bit of a tangent here, a stake needs to be driven through the heart of the old nostrum about it being illegal to yell “fire” in a crowded theater. One may whisper “fire” in a crowded theater. And one may shout “fire” in a empty theater. Indeed, if fire were a component of the storyline in The Rocky Horror Picture Show, yelling “fire” in a crowded theater would surely have been a routine for the cult crowds. The point was never that a restriction could be placed on the substance of speech. But there could be legitimate public safety justifications for time place and manner conditions placed on the means by which the substance of protected speech is expressed. Speech is not abridged by certain conditions placed on the manner of expression. Whether I wish to express my great admiration or utter contempt, I may not do so with a bullhorn outside your bedroom window at 4 AM. Even with such limitation, there is in fact no restriction thereby placed on my ability to express my sentiments in a normal tone of voice. I’m not at all forbidden to express my view. Still, the speech - the mechanics of delivery, not the substance of the ideas contained therein - is regulated, and quite properly so, by the government authority. Time Place and Manner restrictions are not only totally acceptable, but they are an imperative to preserve the safety of a free democratic state, to "insure domestic Tranquility" one might say, from violent angry mob retribution taken against loud obnoxious voices shouting in the middle of the night, for just one example. And the very same legitimate regulating authority is quite properly within the government’s purview with respect to firearms. The specifics of gun regulation are case dependent, in the same way that zoning may allow yelling at 4 AM in one part of a town while prohibiting it in another. There is room for plenty of argument on particulars in any given situation. But as a general premise, the authority of the government to regulate firearms does not at all necessarily constitute an infringement, by default of dictionary meaning, any more than time, place and manner restrictions are an abridgement to freedom of speech.

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