Heller vs DC? Shall not be infringed?

[CarryCauseICan]

I'm in a little back and forth with someone over the Heller vs DC ruling. In it Scalia opines the meanings of the 2nd amendment. What a "Well regulated militia" means. What "right of the people" means and "keep" and "bear" arms means. But what I haven't found yet, or maybe its not in there, Does Scalia or any justice define, "Shall not be infringed" and how does this part play a role in the decision?

[AR]

One phrase I do hear is 'Militia = The People'

[xd ED]

Like property lines, the definitions must be determined before it can be decided what constitutes an infringement

[bstrawse]

The wikipedia article on Heller gives a good overview:

http://en.wikipedia.org/wiki/District_o ... _v._Heller

But, unless you're talking about only federal enclaves (like DC) or federal property - you need to read Heller w/ McDonald v. Chicago - or you won't have a complete view of how this impacts laws at the state and local level.
b

[CarryCauseICan]

So, Scalia left it open saying the right can be limited, but left out any meaning of infringed? To be determined later? I'll look into McDonald vs Chicago.

[Heffay]

So, Scalia left it open saying the right can be limited, but left out any meaning of infringed? To be determined later? I'll look into McDonald vs Chicago.

He said that restrictions on certain types of firearms is probably ok (fully auto M16s).

[mimalmo]

I'm in a little back and forth with someone over the Heller vs DC ruling. In it Scalia opines the meanings of the 2nd amendment. What a "Well regulated militia" means. What "right of the people" means and "keep" and "bear" arms means. But what I haven't found yet, or maybe its not in there, Does Scalia or any justice define, "Shall not be infringed" and how does this part play a role in the decision?

"Well regulated militia"
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Meaning_of_.22well_regulated_militia.22

"Right of the people"
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Meaning_of_.22the_right_of_the_People.22

"Keep and bear arms"
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#Meaning_of_.22keep_and_bear_arms.22

[CarryCauseICan]

All 3 of those links were the same.
Yes, I am to this point. What I am looking for is a courts meaning of shall not be infringed, and how it relates to the amendment? I may be overlooking it, but maybe someone could explain it?

[minnhawk]

Don't forget United States v. Miller, 307 U.S. 174 (1939) where the United States Attorney General successfully argued that......
"the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia. The "double barrel" 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization."

Why does this complicate new gun control initiatives? The ban on assault rifles is contrary to established case law from none other than the US Supreme Court that's why.

[mimalmo]

All 3 of those links were the same.
Yes, I am to this point. What I am looking for is a courts meaning of shall not be infringed, and how it relates to the amendment? I may be overlooking it, but maybe someone could explain it?

No, they bring you to the same general area on the page but with the responding point at the top of the page for each link. Look at the urls.

[jshuberg]

I'm not a lawyer, but this is my understanding:

The Supreme court has never analyzed the phrase "shall not be infringed" in the second amendment. Because there is no other place in the constitution where this phrase is used, there has never been any analysis anywhere else for reference. The wording of the first amendment is "congress shall pass no law", rather than "shall not be infringed".

Just because congress can pass no law to to restrict freedom of speech, the supreme court has ruled that some speech isn't protected. The most cited case is Schenck v. United States in 1919, where Oliver Wendell Holmes coined the often repeated claim that you cant yell fire in a crowded theater. The condition that needed to be met was when the speech resulted in a clear and present danger that it wasn't protected.

However, this ruling was overturned in Brandenburg v. Ohio in 1969, where the court determined that the condition allowing speech to be infringed was too broad. They narrowed the condition to speech intending to incite imminent lawless action. Yes, everyone that claims that you can't yell fire in a crowded theater is wrong. Speech that may result in danger is protected so long as it's not advocating illegal actions.

So how does this effect the second amendment? The first amendment states that congress shall make no law, but despite this the courts have found certain infringements are in fact lawful. The second simply states that there shall be no infringements, which is a more absolute wording than the protections provided by the first. My own humble opinion is that the second amendment, given its wording, cannot possibly be more restricted than the first amendment can be, and is likely less restrictable than the first. A risk of danger isn't sufficient to justify a restriction on the second amendment. There would need to be at least a specific, imminent illegal act before a restriction would be constitutional.

I know this wasn't what the OP was looking for, but I don't think that it exists, so this kind of sideways analysis is all we have until the court decided to examine it directly.

[Rip Van Winkle]

From the Syllabus of DC vs Heller.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of fire- arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

What Scalia was getting at we can only speculate. Future courts will need to decide, and remember, Heller was a 5 to 4 decision.

http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf

[CarryCauseICan]

jshuberg, This is exactly how I am seeing it and just wanted to know if I am wrong or just not seeing where it might be. The courts have not defined "shall not be infringed". Why? I can only speculate on conspiracy theory, like, We need to control society and keep it in check regardless of their individual rights. Why would they want to say the amendment is limited when the last line says that is shall not be? It's funny how you stated about the first amendment ruling about yelling fire in a crowded place, as this is part of my discussion with this other person. Actually the conversation/debate started by this article in the minnpost.

http://www.minnpost.com/community-voice ... gle+Reader

The comments on the article at the bottom are good, But filled with those pesky facts again!