Monday, July 8, 2013

What is infringement?

Infringement of the right to keep and bear arms I define in these categories:

1. The citizen cannot buy, in lawful commerce, weapons suitable for Second Amendment purposes. The purposes in view of the Amendment are your personal defense, defense of your home and hearth, participation in a defense force (a county posse or a state militia) when lawfully summoned to serve, and resistance warfare against a hypothetical tyranny. Weaponry includes, obviously, all the things needed to make weapons effective, such as magazines of suitable size, spare parts and effective ammunition. On the matter of magazine restrictions, of course the right to effective arms includes the right to load them, and load them in a way that is consistent with their purposes and design.

2. The citizen cannot keep suitable Second Amendment arms he lawfully obtained before, because of a confiscation or buyback order from the authorities. A 'no transfers' provision in law serves a similar purpose: He may not bequeath his weapon to another, which is slow motion confiscation. The result, and intent, is to drive suitable weapons out of private ownership.

3. Owners of suitable Second Amendment weapons are listed in government records, in such manner that confiscation of the weapons is made easy should the authorities choose to act in that manner. Note that this is a problem even if you totally trust the government. Governments sometimes are displaced. The Chinese Communists took evil advantage of gun control measures established by the former regime. The Nazis used, selectively, laws and registries established under the previous German regime. So then a registry is only as good as the intentions of the one who holds the list. For this reason, registries are suspect regardless of the reasons given for their establishment. Good people in government can be replaced by bad people, and good governments can be replaced by bad ones, so even good governments should not be trusted with certain types of information.

4. There is a further kind of infringement that is possible. We lose sight of it in current discussions of citizens'  gun rights. I mention it for completeness. It may be of importance later on, as history unfolds. This kind of infringement occurs when the proper authorities are somehow prevented by law from summoning posses or militias. Of course there are always restrictions on what officials can do in the matter, and there should be: I am talking about some insuperable bar to their exercise of the call-up power. It is important to remember that the Second Amendment names two rights not one. Though distinct they are related. The people may have weapons suitable to fight with and the proper authorities may call upon the people for armed assistance. I think of this, from the citizen's point of view, as the responsibility that matches the right to bear arms. Your right to arms is accompanied by your responsibility to use them to protect the public, in certain circumstances. Those circumstances involve being lawfully summoned by the proper authorities. The practice of temporarily recruiting the armed population is something that has fallen out of use. It is still in the law (and still in Clausewitz) but the practice of calling on citizens to be up in arms has gone so long out of use that 'up in arms' has become a catchphrase, which most people cannot today match with a literal example.

5. The citizen's right is to keep arms and also to bear them. There have always been restrictions of one kind or another on how, where and when arms may be carried with you away from home, and that must be allowed as reasonable. But when the restrictions interfere with your safety, that is, your ability to defend yourself against some reasonably anticipated threat or danger, that must count as infringement. If the arms are for your defense, but you are not allowed to have them when and where you need them, in what sense are they any protection? They cannot protect your safety or the public's if you do not have them.

That is how I understand the question of infringement. The Second Amendment has certain definite purposes in view, and where they are grossly interfered with, that is infringement.

1 comment:

  1. Well said Sir, and your definitions/examples are dead on...