“Infringe” Defined by a Federal Court

Quote of the Day

The Second Amendment accords protection of “the right of the people to keep and bear Arms,” by providing that the right “shall not be infringed.” U.S. Const. Amend. II (emphasis added). The Second Amendment is unique in its use of “infringed” for the word does not appear anywhere else in the Constitution. Despite its uniqueness, the term “infringed” has received little attention by scholars or courts. However, Heller took the view that “infringed” “implicitly recognizes the pre-existence of the right.” 554 U.S. at 592 . As articulated in Heller, the Second Amendment does not serve to grant a right but rather preserves a right that the people already possessed. Therefore, to “keep and bear” serves to identify the right protected, not to define the right in the first instance.

The definition of “infringe” further supports the conclusion that the pre-existing right includes a right to purchase. “Infringe” is defined in modern dictionaries as “to encroach upon in a way that violates law or the rights of another.” “Infringe,” Merriam-Webster.com. “Encroach,” in turn, has two definitions: “to enter by gradual steps or by stealth into the possessions or rights of another” and “to advance beyond the usual or proper limits.” “Encroach,” Merriam-Webster.com. Those words have possessed the same meaning since the sixteenth century and the Founders would have understood them in the same way. Not simply protecting the heartland of the preserved right, the Second Amendment protects the environs surrounding it to prevent any encroachment on the core protections. Thus, by virtue of the word “infringed,” the Second Amendment ‘s protective textual embrace includes the conduct necessary to exercise the right (“to keep and bear”) and that, as explained above, includes the right to purchase arms so that one can keep and bear them.

Robert E. Payne
Senior United States District Judge
Richmond, Virginia
May 10, 2023
JOHN COREY FRASER, et al., on behalf of themselves and all others similarly situated as a Class, Plaintiff, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Defendants.

This is from the summary judgement saying that prohibiting 18 to 20 year old people from purchasing firearms is unconstitutional.

I am not a lawyer but the court finally defining “infringe” in such an inclusive manner seems like a big deal to me. I am all in for inclusive rights.

Machine gun sporting events in high schools by 2032 (a decade after Bruen)!


6 thoughts on ““Infringe” Defined by a Federal Court

  1. I have guarded optimism about it. The problem we face is that legislators simply ignore the whole thing. At this point, I won’t give them the excuse that they aren’t aware, because there are GOP legislators, and commenters, who are pointing this out. Witness Colorado’s latest gun laws.

    If there were consequences for enacting such laws, maybe they’d pay attention. But enforcement of Title 18, as you’ve mentioned, just ain’t gonna happen.

  2. A good sign, but until we see how it is used an enforced, it is just some dude blathering about the bleedin’ obvious.

  3. All good! As Joe said, the fact that the word “infringed”, is being used and defined in court is a huge leap forward! And it will be increasingly difficult for courts to ignore the 2A.
    We know the commies are desperate to re-do the disarmament step in the long march. And throwing everything they got at getting it done.
    The communist judges will ignore it.
    But that’s just what happens in communist divided countries. Stay out of crowds and communist territories.
    Most of all it gives us what we have truly needed for years. A sense of being right in the world. We have always known we were right.
    But had no power to enforce it. But our words are being spoken in the halls of power now.
    This is giving us the spine we need to make those words stick.
    With judge’s power comes ego. And once they make a decision they don’t like hearing anymore about it.
    Communist not falling in line is only going hurt them in the long run with lower judges that have the backing of SCOTUS.
    This is a good day!

  4. “I am not a lawyer but the court finally defining “infringe” in such an inclusive manner seems like a big deal to me. I am all in for inclusive rights”

    Forgive me for being cynical…

    Is meaningless to me until the 3rd circuit adopts the same view. It is meaningless to everyone else until SCOTUS adopts that view as well – especially in light of state governments and inferior thumbing their noses at SCOTUS and its rulings. One would think that rational, respectful legislatures and governors would reconsider new laws, but instead (and acting in bad faith) we have seen increasingly draconian bills rammed through multiple states. It is maddening that these states get away with such disregard for the rule of law.

  5. Lord save us from ‘legal definitions’. Although in this particular case the courts seemed to have gotten it more right than usual.

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