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Old June 9, 2021, 10:30 AM   #37
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Join Date: December 13, 2005
Posts: 4,201
Originally Posted by Aguila Blanca
Period. Full stop. It doesn't say "shall not be unreasonably infringed." It says "SHALL ... NOT ... BE ... INFRINGED." Taken as it was intended (and assumed to be obvious) by the Framers, that means the right to keep and bear arms is simply NOT SUBJECT TO REGULATION -- reasonable or otherwise.
I am sympathetic to that reading, but let's recognize that "shall not be infringed" leaves room for argument and that the position you state and I like isn't current law. It's whether the explanation of our position coheres that should give the position weight rather than the credentials of the the people advancing it. Both we and Chemerinsky are entitled to our critiques and should have those critiques evaluated on their merits.

The point at which Chemerinsky's position fails to cohere is his its disconnect from text. It's an example of Bork's explanation of the Olympian project of "smarter" people telling us which policy choices are better, as opposed to the Court settling disputes between parties according to the text of the documents involved.

The point at which our leaning on those four words risks over-extension comes to interpreting the last word. Is a right infringed if its use is regulated in any way at all? I wouldn't consider a law against using a firearm in a robbery to be an infringement even though that is a regulation of use. Does the right remain uninfringed if the government has seven common traits it prohibits and and you need to pat your head and rub your stomach to reload it? Some will say that the right is uninfringed because you still get to have a gun, as if the word infringed is equivalent to "obliterated". I would protest that impairing the utility of the item infringes the right, limiting the right itself in a material way. A law that prohibits flash hiders and normal grips no more leave my 2d Am. right intact than would be an election law that prohibits some speech within 60 days of an election leave my 1st Am rights intact.

My reading of "infringed" is nearly synonymous with "limited"; it strikes me as sensible and coherent even as I acknowledge that it isn't the current state of the law.
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