Dru Stevenson is a Professor of Law at the South Texas College of Law and one of the FRC’s new Fellows.
My most recent law review article investigates the public meaning of the word “infringed” in the Founding era: Shall Not Be “Infringed” is forthcoming in the Kansas Law Review, but a draft is available online here. Here is the abstract:
The Second Amendment ends with the verb phrase “shall not be infringed.” The verb “infringed” occurs nowhere else in the Constitution or the Bill of Rights outside of the Second Amendment-the other Amendments all use other verbs to refer to proscribed government conduct, and the word choice seems deliberate. In recent years, academic commentators have delved into the original public meaning of nearly every word and phrase in the Second Amendment, with one striking exception: the word “infringed.”
This Article undertakes this inquiry. Drawing on a survey of all the uses of the word “infringe” (in its various conjugations) in Blackstone, The Federalist Papers, and early court opinions, as well as a sampling of other representative writings from the period, this Article finds a more nuanced meaning for the word in that era than many modern courts and commentators assume. The ratification generation likely thought “infringed” was an either-or term that implied a complete cancelling of a right, as opposed to an incremental limitation on a right or freedom (i.e., “abridged”). In other words, while other Amendments in the Bill of Rights forbid the government from diminishing or interfering with certain rights at all, the Second Amendment prohibited only complete disarmament of the people, and it did not apply to modest regulations about gun commerce, ownership, or use. While any survey of language use will reveal somewhat mixed results, this Article concludes that the weight of evidence suggests “shall not be infringed” limited only the most drastic of government actions to disarm the citizenry.
A few disclaimers about what this article does not address: it does not address the question of whether the Second Amendment protects individual rights to keep and bear arms or a state’s right to raise its own militia. While I disagree with the Supreme Court majority opinion in District of Columbia v. Heller (I generally agree with the dissenters), in this article I work with the assumption that the Second Amendment protects an individual right, as the Court has settled on this approach for the foreseeable future. I also do not address whether the right to keep and bear arms was mostly about personal self-defense or about armed resistance to government “tyranny.” My focus is on the word or verb phrase “shall not be infringed,” and what that meant to the Founding generation.
The Supreme Court’s recent Second Amendment decisions in Bruen and Rahimi, which require that modern gun laws have some analogous counterpart in Founding-era, could be expressed as a positive rule: modern gun laws are permissible under the Second Amendment if they are clearly analogous to gun restrictions in the Founding era. There is still a fierce academic debate, and disagreement among lower courts, about what counts as sufficiently “analogous.” I think it is fair to say, however, that a majority of the current Supreme Court believes that some restrictions on gun use, ownership, or commerce existed in the generation that ratified the Second Amendment, so (the reasoning goes), presumably that generation thought that the Second Amendment permitted those laws or regulations. Rahimi upheld a modern federal law because it was sufficiently analogous to Founding-era fundamental “principles.”
Of course, the text of the Second Amendment does not say that existing laws at the time are permissible, but arguably, this is the gist of the word “infringed” at the end – there was a shared understanding that some restrictions on gun use, ownership, or commerce did not “infringe” on the right protected in the Amendment. Note that people today often say that certain laws “infringe on the Second Amendment,” as a type of rhetorical shorthand, but it is more accurate to say that they infringe on the rights protected by the Second Amendment.
Of course, this in itself does not answer the question of which modern laws infringe and which do not. The courts are currently wrestling with those questions, and there is a fierce academic debate underway about how closely analogous a law needs to be, what Founding-era legal rules can be considered, and so forth. I take things step further, and argue that the semantic connotation of “infringe” at the time meant that only the most drastic gun restrictions – something like a complete gun ban or gun confiscation – would have constituted an “infringement.”
I understand that some gun rights advocates believe any government restriction specifically about gun use, ownership, or commerce would or should be impermissible under the Second Amendment, but I honestly do not think the phrase “shall not be infringed” meant something so absolute in the minds of those who drafted the Amendment, or those who voted to ratify it. I think it had a more specific semantic sense, just as the word does today in areas of law where it operates as a legal term of art – in copyright, trademark and patent law, where not every unauthorized use constitutes an “infringement.” Relatedly, I also believe there was some disagreement even in the Founding era about what types of gun laws were acceptable, and probably some people in that era had more absolutist opinions about this, while others were probably more moderate. Even if other scholars or jurists disagree with my view about the word “infringed,” I hope to open up a fruitful discussion and more research about this topic.
I want to close with a disclaimer. This article is an exercise in originalism – specifically, public-meaning originalism, a jurisprudential approach that interprets foundational legal texts like the Constitution according to what the public understood the words to mean in the generation that ratified the text. I undertake this endeavor because the current majority of the Supreme Court has embraced this approach. Personally, I am skeptical about originalism. While I think historical evidence about the original meaning is certainly relevant and worth discussing, I think the historical record is too incomplete for us to be certain about subtle semantic meanings two centuries ago, so I do not think “original public meaning” should be the sole consideration for resolving constitutional issues. Too many records from the period no longer exist, and many important records that survived have never been published or digitized. For example, John Dickinson was an important Founding Father, an influential member of the Continental Congress and a delegate at the Constitutional Convention, and the drafter of the Articles of Confederation (he also held several leading state offices in Pennsylvania). Dickinson’s personal papers and correspondence are only now being published in a (prohibitively expensive) multi-volume series – most still exist in archives only in their original handwritten form, and his papers from the era when the Bill of Rights was being ratified remain unpublished and unavailable. This is just one example of many. While many (most) writings from the period no longer exist, even those that do often remain unavailable online or in print. As more of these records become available to us, especially for leading political and legal figures, we may need to revise our understanding of what exactly they meant by certain words and phrases in the Constitution.
Ultimately, any judicial decision based on originalism is still a choice being made today. The Founding Fathers are not here to force us to follow their wishes, so if we do follow them, assuming we can correctly discern what they thought, which I am not sure we always do, it is because we are deciding to do so on our own volition. I am not suggesting we should ignore what the Constitution seems to say. But in cases where the Founders chose verbiage whose meaning is debatable for those reading it later, where reasonable minds differ about the semantic subtleties of the text, I think it would be more intellectually honest for courts to admit that they are in fact picking the option that seems best, rather than pretending to be “bound” by words that could plausibly be read in more than one way.
