"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."
Recommended Citation
Dru Stevenson, Shall Not Be "Infringed", 73 Kan. L. Rev. 507 (2025).
