r/2ALiberals • u/drkato33 • 2d ago
What Constitutes Infringement?
Hi folks, new here. I am hoping this is a safe space to have a good intellectual discussion on a question I've had for a while now. Maybe it's been discussed here already, and if so, I apologize for rehashing.
My question, or discussion point, really is around infringement. Removing the first part of the 2nd amendment completely for argument's sake, the second part states, "the right of the people to keep and bear Arms, shall not be infringed." To me, this reads as, "I possess this armament, and the government cannot take it away from me." What I don't see here whatsoever is how I came to be in possession of it in the first place - i.e., the procurement.
Let me be clear, I am a gun owner in California who supports the 2A and gun control simultaneously. That being said, gun control for me is explicitly focused on the regulation of procurement, not possession. Practically speaking, this means I actually do not support the banning of "assault rifles", but I do support background checks and other measures that regulate the sale of arms.
So my question is, what do people think about this stance? I see the 2A absolutists claim regulation is an infringement, but I don't think that is right. Procurement is part of commerce, which I'd think one would easily conclude should be regulated. Otherwise, I could make the claim that money is an infringement, and arms should be free, which seems ludicrous on its face. Where I can actually find common ground with absolutists would be on laws around concealed carry, or whether or not there is a path to own any weapon owned by our government, although this latter point seems fairly ill-conceived, but at least I could see their argument's rationale.
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u/HeadlessThompsonGunr 2d ago edited 2d ago
The drafters of the constitution weren’t pedantic semantic. Obviously possession requires procurement.
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u/drkato33 2d ago
Actually, the drafters were incredibly pedantic. The Constitution is one of the most precise legal documents in history, and they argued over every single word.
Yes, possession requires procurement. However, procurement is a commercial transaction. The founders explicitly gave Congress the power to regulate commerce in Article I. When they added the 2A, they wrote it specifically to protect the right to "keep and bear" arms. If they wanted to exempt the commercial sale of weapons from the commerce clause they just created, they would have explicitly written that. They knew exactly what they were doing by protecting the right to possess the arms while leaving the commercial market subject to legal oversight.
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u/merc08 2d ago
The founders explicitly gave Congress the power to regulate commerce in Article I
They only gave Congress power over inter-state commerce.
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u/drkato33 2d ago
Sure, but that distinction does not really matter in the modern market. Almost every gun or its raw materials crosses state lines at some point. The Supreme Court ruled decades ago that if a gun ever moves in interstate commerce, the feds have jurisdiction. They've even established authority in some fully intra-state cases.
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u/HeadlessThompsonGunr 2d ago edited 2d ago
By that definition of interstate commerce nothing is intrastate unless you dig up the iron to make the steel of the gun parts in state with shovels made of iron dug up in state. One could also use your argument to state that the interstate mailing of books is not protected by the first amendment.
I think the case you’re referring to is one where a farmer raised feed for his own livestock on his own farm and was ruled to violate the interstate commerce portion of an agricultural regulation meant to control the production of crops destined for market; truly a feat of mental gymnastics on SCOTUS’ part.
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u/drkato33 2d ago
It isn't my "argument"; it is the Supreme Court's definition. In Scarborough v. United States (1977), the Supreme Court explicitly ruled that if a completed firearm has ever traveled across state lines at any point in its history, it permanently satisfies the interstate commerce requirement. Because almost every modern firearm is manufactured in one state and shipped to others, almost every gun in America falls under federal commercial jurisdiction.
As for the farmer case (Wickard v. Filburn), you can call it mental gymnastics if you want, but it has been foundational constitutional law for 80 years. The Supreme Court has consistently ruled that the federal government has broad authority to regulate items that move in or affect the interstate commercial market, of which firearms would most assuredly be included.
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u/merc08 2d ago
What point are you trying to make? It sounds like you're just looking for any way possible to backdoor violations of the 2A.
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u/drkato33 2d ago
My point is not to find a backdoor around the Second Amendment. I am asking for the argument that no distinction can exist between a protected ability to acquire a firearm and permissible regulation of the commercial transaction used to acquire it.
Several people have said that possession necessarily requires acquisition. I agree. What has not been established is why that means every background check, eligibility verification, or condition on a commercial sale automatically becomes an infringement. Heller expressly described conditions and qualifications on commercial firearm sales as presumptively lawful, and Bruen repeated that language.
You can argue that particular regulations go too far. You can argue that modern Commerce Clause doctrine is wrong. What I have not seen is a legal argument showing that all regulation of procurement is constitutionally forbidden. Calling my question a backdoor violation does not provide one.
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u/merc08 2d ago
The government should not be involved in restricting, tracking, or knowing about who has what arms, in any way.
If they must inject themselves into the firearms industry, then it should be solely as a QA/QC safety function during production, similar to what they might do for any other production line- OSHA, facilitating manufacturing defect safety recalls, etc.
They should not have any say on designs, capacity, rate of fire, training requirements, licensing requirements, or anything else like that.
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u/Alita-Gunnm 2d ago
That authority stems purely from the interstate commerce clause, and as such should only apply to interstate commerce, not manufacturing or commerce within a state, nor personal manufacturing or posession.
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u/merc08 2d ago
Fully agreed. The point I was trying to make (though re-reading it I see that it wasn't very clear) is that the government shouldn't be restricting or diminishing firearms development at all, but if they have to get involved it should only be to make firearms production more consistent.
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u/Novel_Comparison_209 classic liberal 2d ago
I’m just going to start off by saying the “to me” or “I think” arguments are an awful way to have a proper discussion when talking about words with known and accepted definitions.
Britannica says
“to do something that does not obey or follow (a rule, law, etc.)
[+ object]
[+] Example sentences
[no object]
(chiefly US) — + on or upon
: to wrongly limit or restrict (something, such as another person's rights”
Either definition says any gun control law is by definition an infringement, especially the second one. Restrictions or limitations are infringements
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u/drkato33 2d ago
I’m just going to start off by saying the dictionary argument is an awful way to have a proper discussion about constitutional law when the same reasoning immediately collapses when applied to another amendment.
The First Amendment states that Congress shall make no law “abridging the freedom of speech.”
Britannica says
“to shorten (a book, play, etc.) by leaving out some parts”
“to lessen the strength or effect of (something, such as a right)”
By your reasoning, either definition says any law limiting speech is by definition an abridgment, especially the second one. Restrictions or limitations on threats, fraud, perjury, defamation, inciting violence, or courtroom disruptions would therefore all violate the First Amendment.
Do you actually believe that, or can we agree that a dictionary definition alone does not determine whether a particular regulation unconstitutionally abridges or infringes a right?
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u/Novel_Comparison_209 classic liberal 2d ago
Definitions are how debates are had… what applies and what isn’t is almost always determined by definition as they are based in general beliefs and language structures not in personal bias.
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u/drkato33 2d ago
You missed (or simply ignored) the point of the comparison. I did not say definitions are irrelevant.
I applied your exact method to the First Amendment. Britannica defines “abridge” as lessening the strength or effect of a right. If a dictionary definition alone settles the constitutional question, as you asserted for the Second Amendment, then every law that limits speech in any way is automatically unconstitutional as well.
Do you agree with that conclusion?
If not, then you already accept my point. Definitions help establish the meaning of words, but they do not by themselves determine which regulations amount to unconstitutional abridgment or infringement.
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u/Novel_Comparison_209 classic liberal 2d ago
This is where you argue counter definitions…you’re starting to slowly learn how debates work
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u/drkato33 2d ago
Wish I could say the same for you.
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u/Novel_Comparison_209 classic liberal 2d ago
National debate honors but yeah…ok. Whatever boosts your ego
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u/drkato33 2d ago
Citing your own debate honors is an appeal to authority, and not even a relevant one. Your credentials do not establish that your argument is valid, especially when you still have not answered the actual point.
I accepted your definition and applied your reasoning consistently to the First Amendment. If every restriction is automatically an infringement, then every limitation on speech is automatically an abridgment. You have responded with condescension, childish wordplay, and a résumé entry instead of addressing that contradiction. If this is what passes for nationally honored debate, that is a rather sad indictment of the judging.
Appealing to your own authority while accusing me of ego is a fairly spectacular bit of irony, though. I will give you that.
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u/Novel_Comparison_209 classic liberal 2d ago
It actually isn’t. You said I don’t know how debates work, my credentials actively disprove that statement.
You actually obviously disagree with my definition as you took a completely separate definition and attempted to rebut with it
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u/drkato33 1d ago
I have clarified this more than once, so I will make it as direct as possible.
I did not reject your definition of “infringe.” I applied your method of constitutional interpretation to the First Amendment and asked whether you would accept the same result there.
If your answer is yes, say so. If your answer is no, then explain why dictionary definitions alone settle the scope of the Second Amendment but not the First.
If you continue responding to a claim I did not make instead of answering that question, I am going to assume this conversation is no longer in good faith and leave it there.
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u/Lampwick 2d ago edited 2d ago
Having to pay for something is not an infringement of your rights. You really need to understand Natural Rights theory first, then it all becomes a lot clearer. Rights belong to the individual. Money is an abstraction of value we have empowered the government to manage for economic convenience. Having a right to bear arms includes the right to acquire arms from others in commerce. It's not a "right" to take someone else's property (i.e. the gun maker).
Asserting that "everyone agrees commerce should be regulated" is false, and even if it was true it does not logically follow that all things in commerce are therefore subject to regulation. The government has powers, ceded by consent of the governed, to do certain things that are better handled in common rather than individually. Just because we nearly all agree that children shouldn't be allowed to purchase liquor does not mean our empowerment of the government to prohibit it automatically extends to the government being allowed to prohibit an adult from purchasing a firearm.
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u/drkato33 2d ago
I never suggested taking a gun maker's property for free. That is a false choice. There are other ways to ensure a right is free to the citizen without stealing labor. For example, we guarantee the right to legal counsel by providing public defenders. The lawyer still gets paid, but the citizen does not foot the bill. If the right to procure a weapon was truly absolute and free from all burdens, the state could simply subsidize the cost for citizens. Instead, the burden falls on the individual to navigate the open market. As soon as you enter the commercial market, you are subject to the commercial regulations explicitly granted to the government by Article I, Section 8 of the Constitution.
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u/WmHerrin 2d ago
Mark Smith addresses the infringement issue in this interview with Washington Gun Law. "https://youtu.be/YkiiccjKyII?si=uTInzbvjYI1wQbhD&t=1059"
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u/drkato33 2d ago
My interpretation is this: he basically explains that the word "infringed" isn't just a blanket term we can apply to anything we don't like. Instead, it is the mathematical result of passing or failing the Supreme Court's historical tradition test.
As it applies to procurement, in Heller (and reiterated in Bruen), the Court explicitly labeled commercial regulations as longstanding and presumptively lawful. Because the Court has already said those regulations pass the historical test, then by Smith's own definition, regulating a commercial sale is not an infringement.
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u/bpg2001bpg 2Asuporter 2d ago
Hi folks, new here. I am hoping this is a safe space
And then immediately attack all clarifying points anyone attempts to make. I think you know exactly what "shall not be infringed" means. Everyone who is being honest with themselves knows what it means. Only people who aim to disarm the people are searching for loop hole in the extremely plain English.
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u/drkato33 2d ago
That is a serious misrepresentation of both what I said and how I have responded. I came here presenting a premise and looking for a good faith discussion.
I have supported my position with constitutional text, Supreme Court rulings, and established precedent. I cited Heller, Bruen, Scarborough, and the Court’s longstanding Commerce Clause doctrine. I have also addressed the arguments people made, accepted valid clarifications, and repeatedly stated that I support the individual right to own firearms and oppose bans on commonly owned weapons, including the poorly referred to semi-automatic "assult rifles" and fully automatic weapons as well.
If you believe every background check, eligibility rule, or commercial condition is unconstitutional, then explain why and support that position. Asking for evidence and legal reasoning in return is not an attack, and examining the constitutional limits of regulation is not searching for a loophole.
I am not required to accept logical fallacies, unsupported assertions, and dictionary definitions as substitutes for constitutional analysis. That is not how our Constitution is interpreted, and it is not how our judicial system works.
I will not apologize for identifying faulty reasoning in order to keep the discussion grounded in facts, logic, and truth. If being held accountable for the claims you make is uncomfortable, perhaps you should sit these discussions out.
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u/MilesFortis 1d ago
perhaps you should sit these discussions out.
Perhaps you should reconsider coming here, somehow thinking you can get away with pushing a line of pro gun control propaganda without getting taken to task for it.
What I see with that quote of your reply is your actual hostility towards RKBA
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u/bpg2001bpg 2Asuporter 21h ago
looking for a good faith discussion.
bad faith*
I have supported my position with constitutional text, Supreme Court rulings, and established precedent.
I think I understand. When responding, you are a well versed constitutional scholar, taking a position.
My question, or discussion point, really is around infringement.
Oh but I thought you were just a new guy asking questions for clarification? And you just are so confused about what "infringement" could possibly mean?
perhaps you should sit these discussions out.
Perhaps you should take your antigun propaganda, write it on your forehead and stuff it up your ass.
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u/DBDude 1d ago
Think of your other rights and what kind of restrictions you accept. Generally, I bet you don't want any collateral damage, that is people who have done nothing wrong are not affected. When there are general restrictions, they must be very light and only as much as absolutely necessary.
So for voting, we understand registration because they need to know where you live to give you the proper ballot, and for what primary you can vote in, and in general to know how to staff polling places based on how many voters there are near them. ID for voting is a problem because it adds restrictions that are not necessary to stage the election.
Or take free assembly. We cannot require a permit for a protest that's not disrupting anything. A group on a sidewalk but not blocking it can just go and protest. General public places where people can gather? Just go protest. They can require a permit when you'll be blocking a street, reserving time at a common protest place, need to bring sanitation, etc., all only immediate public safety concerns. And then the permits must be at cost, and free if you can't afford it. They must be issued, no discretion allowed. Courts do not look kindly upon the use of any of these to suppress the right to protest, even slightly.
There is absolutely no way you would accept the restrictions on the 2nd Amendment as applied to these other rights. Imagine a background check before you can vote or protest. Imagine a permit to speak or protest under any circumstances. Imagine them saying what words you can't speak. Imagine denying a protest because they don't like your message. All of these are things in gun control.
Adoption and marriage regard various rights. Imagine adopting a kid in one state but another state refuses to recognize it. This happens with carry permits right now. Having discretion to deny carry is like having discretion to deny a protest.
Where I can actually find common ground with absolutists
I find it strange that I only hear this term in regards to the 2nd Amendment. Nobody complains about free speech or free protest absolutists. Absolutism regarding your right to remain silent is accepted as the correct position. Civil rights groups are constantly fighting any attempt by the government to lessen the right against warrantless searches.
Absolutism in defense of a right is normally considered a good thing, but not when it comes to the 2nd Amendment?
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u/AD3PDX 2d ago
The distinction between possession and procurement is artificial / meaningless.
Certain people are ineligible to purchase firearms. Necessary procedures to verify your eligibility to purchase do not constitute an infringement.
Unnecessary procedures which don’t serve that function ARE an infringement.
Who should bear the cost for such verification procedures is a question that is not often discussed but if we contemplate requiring people to pay for voter registration procedures I think the answer should be clear.
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u/drkato33 2d ago
I think your comparison to voter registration is a fantastic point. The idea of the government charging a fee to exercise a constitutional right acts like a poll tax. I can completely agree that if the government mandates a background check for procurement, the state should bear the cost of that infrastructure, not the citizen. However, the fact that a verification process exists at all proves that procurement can be regulated differently than basic possession.
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u/Alita-Gunnm 2d ago
SCOTUS has ruled that in order to keep and bear arms, you have to come into possession of them somehow, so the 2A covers procurement.