"Shall Not Be Infringed"

Constitutional Text

The Second Amendment concludes with this prohibition:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

This is notably strong language compared to other constitutional provisions.

Linguistic Analysis

Definition of "Infringe"

Samuel Johnson's 1755 Dictionary defined "infringe" as:

"To violate; to break laws or contracts; to destroy; to hinder"

Noah Webster's 1828 Dictionary expanded:

"To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance"

Strength of Prohibition

Compare the Second Amendment's language to other constitutional provisions:

Historical Meaning

Founding Era Understanding

Historical evidence suggests the Founders viewed "infringement" broadly:

• State Proposals: Several states proposed even stronger language like "shall not be restrained"
• English Bill of Rights: Protected arms "suitable to their conditions and as allowed by law" - more restrictive
• State Constitutions: Varied in strength of protection

Early Regulations

Despite strong language, early regulations existed:

• Gunpowder storage laws
• Militia equipment requirements
• Restrictions on certain persons (enslaved people, Native Americans)
• Time and manner restrictions (no firing in cities)

This suggests some regulations were not considered "infringements."

Supreme Court Interpretation

DC v. Heller (2008)

Justice Scalia addressed the apparent absolutism:

"Like most rights, the right secured by the Second Amendment is not unlimited... The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." DC v. Heller, 554 U.S. 570, 626 (2008)

The Court identified "presumptively lawful regulatory measures":

"Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the carrying of firearms in sensitive places such as schools and government buildings, or laws forbidding the carrying of 'dangerous and unusual weapons.'" DC v. Heller, 554 U.S. at 626-627

NYSRPA v. Bruen (2022)

The Court refined the test for what constitutes infringement:

"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." NYSRPA v. Bruen, 597 U.S. 1, 24 (2022)

Permissible Regulations

Categories Not Considered Infringements

The Supreme Court has recognized several categories of permissible regulations:

1. Prohibited Persons
   • Felons
   • Mentally ill
   • Those under restraining orders (Rahimi)
2. Sensitive Places
   • Schools
   • Government buildings
   • Polling places
3. Manner Restrictions
   • Concealed carry licensing (with objective criteria)
   • Commercial sales regulations
   • Safety requirements
4. Dangerous and Unusual Weapons
   • Machine guns (per Heller dicta)
   • Short-barreled shotguns (Miller)
   • Weapons not in common use

Historical Tradition Test

Post-Bruen, regulations must have historical analogues:

• Similar regulations from the founding era
• Comparable burden on the right
• Similar justification

Prohibited Infringements

Clear Violations

The Supreme Court has struck down as infringements:

• Total bans: Complete prohibition on handguns (Heller)
• Functional bans: Requirements that render arms inoperable (Heller)
• Arbitrary denials: May-issue licensing with no objective criteria (Bruen)
• Excessive burdens: Requirements that prevent ordinary citizens from exercising rights

Core Protection

The right's core cannot be infringed:

"Whatever else it leaves to future evaluation, [Heller] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." DC v. Heller, 554 U.S. at 635

Comparison to Other Rights

First Amendment Parallel

Despite "Congress shall make no law," the First Amendment permits:

• Time, place, manner restrictions
• Obscenity laws
• Defamation laws
• Incitement restrictions

No Right Is Absolute

The Court has consistently held:

"The Constitution... is not a suicide pact... [R]easonable regulations of [constitutional rights] are not foreclosed." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)

Scrutiny Levels

While Bruen rejected means-end scrutiny, the practical effect resembles strict scrutiny:

• Presumption of unconstitutionality when text applies
• Government bears burden of justification
• Historical tradition required (similar to narrow tailoring)

Modern Debates

Originalist vs. Living Constitution

Current Controversies

Ongoing debates about what constitutes infringement:

• Assault weapons bans: Common use vs. unusual danger
• Magazine restrictions: Arms vs. accessories
• Universal background checks: Commercial regulation vs. private rights
• Red flag laws: Due process vs. prevention
• Age restrictions: When rights attach

Future Questions

Unresolved issues include:

• What level of burden constitutes infringement?
• How closely must historical analogues match?
• Can new technologies create new "sensitive places"?
• What about regulations with no founding-era analogue?