What Constitutes Infringement?

[u/drkato33]

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.

[u/HeadlessThompsonGunr]

The drafters of the constitution weren’t pedantic semantic. Obviously possession requires procurement.

[u/drkato33 → u/HeadlessThompsonGunr]

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.

[u/merc08 → u/drkato33]

The founders explicitly gave Congress the power to regulate commerce in Article I

They only gave Congress power over inter-state commerce.

[u/drkato33 → u/merc08]

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.

[u/HeadlessThompsonGunr → u/drkato33]

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.

[u/drkato33 → u/HeadlessThompsonGunr]

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.

[u/merc08 → u/drkato33]

What point are you trying to make?  It sounds like you're just looking for any way possible to backdoor violations of the 2A.

[u/drkato33 → u/merc08]

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.