Gun Control thread (merged many)

[Platapus]

Originally Posted by tater

"... shall not be infringed." (my emphasis).

Infringed is a pretty GD low bar. Not so much as a speed bump, and that applied to warships and artillery as written, when written.

You are correct, the words "shall not be infringed" is included in the Second Amendment, when it was written. But it is also necessary to recognize that the scope of the Second Amendment (and the Bill of Rights as a whole) has changed.

When the founding dudes wrote it, the Second Amendment (actually all of the Bill of Rights) only applied to the Federal Government. The states were still sovereign and were not bound by the Bill of Rights in any way.

So a state could establish an official religion, could ban free speech and could certainly restrict weapons according to the state's constitution and the state's legislation. The federal government could not.

Even the 14th amendment (1868) still recognized that the bill of rights applied to the Federal Government only. As late as 1883 (Barron v Balitmore 32 US (7pet) 243) the SCOTUS ruled that the bill of rights only applied to the Federal Government.

Then in the 1900's things started to change. Slow at first but soon we had what is called the "Incorporation Doctrine". There were a series of court cases and appeals that slowly changed how the courts interpreted the Constitution. It was not a sudden single decision but a series of decisions over about 20 years.

What that meant is that the courts up to and including the Supreme Court, made the decision that the restrictions on the Federal Government that were in the Bill of Rights and other amendments also restrict the State Government.

That's a pretty big deal.

Whether the Incorporation doctrine is good or bad, can and is debatable, in addition to the question whether the Incorporation doctrine is even constitutional in itself is debatable. But the fact is that it is with us.

This means that it is difficult to go back to the original (federal only interpretation) constitution and make the claim "well those dudes wrote this back then and therefore it must apply to current (federal and state interpretations of the constitution) issues.

The founding dudes may have intended that all infringement of arms would fall to the state. The only thing they made clear (back then) was that the Federal Government could not infringe. Remember, they also wrote the 9th and 10th Amendment also so they recognized a difference between what the Federal government could or could not do and what State governments could and could not do. Basically, what the states could not do was left up to the state to decide through their laws and courts.

This is one of the many problems with the Incorporation Doctrine. We were just a bit over 100 years old as a country, when we started moving away from being the United States of America to become the United Federation of America.

Either being a confederation of sovereign states or a federation of incorporated states has its advantages and disadvantages. But the move from a confederation of sovereign states to a federation of incorporated states needs to be made deliberately and with the consent of the people.

I do not believe this has been done.

So we find our country somewhere between a confederation of sovereign states and a federation of incorporated states with, to quote Archie Bunker, "a little too much of both and not enough of neither".

This is a bad thing. We need to be one or the other with clear delimitation of authority.

And this makes interpreting the constitution not only necessary but also difficult.

My opinion? It is necessary to interpret the constitution as environments change (That's why the Founding Dudes made a SCOTUS)

BUT

Such interpretations need to be taken with care and with due diligence as to unintended, unexpected, undesired, consequences that may come from the interpretation in the future. I lean more to following the restrictions of the constitution, but recognize that a bunch of guys in the early 1800s can not be expected to have thought about issues in the 2000's.

Of course, if I had the answer, I sure would not be writing bombastic posts on a video game fan forum.