Henry E Schaffer wrote:
I don't see how the "shall not be infringed" concept can be sensibly
interpreted as an "absolute" right.
No one is arguing that. Read my article carefully.
To take an extreme example - would this mean that convicts have the
RKBA while in prison?
Rights may be judicially disabled on proof of incompetence,
irresponsibility, or as punishment for a crime. The issue is direct
/legislative/ infringement.
I don't thing that any court or reasonable (sensible?) person is going
to say that. If I'm correct, then the right can't be considered
to be absolute.
Which, of course, makes things much more complicated. But we've coped
with the "falsely shout Fire in a crowded theater", and I expect we can
also cope with the fuzzy line in this context - although it may take
more court cases.
Falsely shouting "Fire" is about inciting a riot, not specifying how it
is done, only incidentally infringing on speech if speech is the way the
riot is incited.
People need to learn to distinguish between these kinds of disablements
and incidental side effects, and legislative regulatory or prohibitory
measures that expressly infringe, or discriminatory taxes that impose an
"undue burden". Any official action has uncountable incidental effects
on almost everything, but it does not become an "infringement" until it
is directed at the right to intentionally prevent its proper exercise.
The key phrase of art is "undue burden".
-- Jon
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