Shall. Not. Be. Infringed.
Deconstructing the verbage of the 2nd Amendment, and why it’s so important
“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.”
Such a simple, concise, and succinct amendment, but one that has been entrenched in controversey and misinterpretation for decades upon decades. The purpose of this article is to break down each individual piece of the 2nd Amendment, why it can be misconstrued, and why the ultimate intended meaning and purpose is so important. I am going to be referencing several points and topics in the American Revolution, as it is vital to understanding the context and pretext in which the Bill of Rights was written. So brush up on your Yankee history, and let’s get started.
“A well regulated…”
In the first three words, the 2nd Amendment affirms that Arms in America must fall under regulation, and is the only amendment that specifies any sort of regulation. Not only that, but the phrasing of “well regulated” commands that the regulation be detailed and extensive. The question is, who gets to regulate the Arms, and to what extent can they regulate?
Option 1: The Government can regulate however they see fit.
The Founders were fresh off the heels of the American Revolution. The colonies sought to break free from the British Crown, a rule which they felt oppressed and limited them as Englishmen and as human beings. Not only that, but the revolutionaries believed that Britain’s recent acts and tax impositions sought only to increase revenue and establish dominance over the colonies, not to better the colonies themselves. They were intimately familiar with the dangers of overreach and over-regulation by unassailable tyrants drunk on their own immovable power; so familiar were they that an entire military rebellion and political revolution was launched on those very principles. This is why tying the Declaration of Independence in with the 2A is important for understanding its context.
“...That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness...”
It would make no sense for a people to have access to Arms for the purposes of altering or abolishing a destructive Form of Government, if they would have to ask that same destructive government for permission to use those Arms. Yes, regulation must be strict, detailed, and extensive. But it must also come from the consent of the governed (Capitol Hill can’t just invent rules by themselves), and must not interfere with the citizenry’s Right to alter or abolish tyranny (the rules must preserve the Peoples’ combat effectiveness). Therefore, a second option is presented.
Option 2: The People can regulate however they agree upon.
This option is likely a more accurate depiction of the original intention of the prefatory clause’s opening, as it not only places control of the Arms at the hands of those who would use them, but it also puts regulatory training in the hands of those who would use them. The alternate meaning of “regulate” is simply to “supervise,” and after narrowly winning a war against a formally trained standing military, the Founding Fathers knew that the freshly minted nation would have to be equally well-trained to be ready for any future engagements.
This is seen as a more dangerous option, with regular citizens in possession of weapons of war. But dangerous freedom is exactly what this country was based on, and the Founders understood that peace was not a garden where everyone is disarmed and harmless/helpless. In fact, Britain had literally attempted to disarm the rapscallion colonials, specifically during the initial occupation of Boston, in the Powder Alarm of 1774, following the Battles at Lexington and Concord, and in a proposal by William Knox in 1777. Knox’s proposal even specifically stated that the colonials don’t need means of self defense, because the protection of the Throne would be sufficient (a Throne that had been slowly tightening its grip on the colonists for years).
In order to more effectively impose their level of order and compliance, the Crown attempted to remove the possibilities of physical opposition. If that sounds familiar, that’s because it’s the exact argument that modern politicians use when they claim that Americans don’t need guns, because police and government will be there to protect them. If 2020 taught us anything about law enforcement and Washingdon D.C., it’s that we cannot depend wholly on someone else to come and save us while we stand idly by and hope for the best. Even when the police or government do show up, sometimes they make the problem even worse.
But the Founders also didn’t think of themselves as faultless saviors who provide everything the citizens need. After experiencing the Crown repeatedly justify their abhorrent actions, the Founders understood that even they themselves were vulnerable to going afoul in power. Absolute power corrupts absolutely. Therefore, this form of regulation at the behest of the People meant that even if they the Framers were being overthrown, they could do nothing to disarm the citizenry of doing so. A pop culture version of this ideal is Batman, who developed failsafes against all of the members of the Justice League. If any of his friends and fellow heroes went evil, he has their weaknesses on file. But Superman once challenged Batman for being so arrogant that he developed plans to stop everyone except himself. Batman’s reply is simple: “I do have a plan. It’s called the Justice League.”
The opening of the prefatory clause is to describe that the Right to bear Arms shall not be infringed because of governing bodies’ tendency to overplay their hand in the quest for absolute rule even at the expense of their own citizens’ safety.
“…Militia…”
This is a pretty quick one, as the definition of a militia is pretty straightforward. So what is the militia, or more pointedly, who is the militia?
In literal translation terms, a militia is simply any group of non-military people who engage in militaristic activities. In the American Revolution, only one side had a formal standing army because the opposition was literally the army’s fellow countrymen. It was regular farmers and teachers who formed the palisade which defied the day’s most monolithic empire, and won. Still not convinced? Let me expand.
One of the primary reasons for the Revolution was that the Revolutionaries felt that the Throne was infringing on their rights as English citizens. Not as soldiers, not as military, but as citizens. Taxation without representation was an issue that was felt by civilians and regular people. When writing the Bill of Rights, the Founders knew that a militia made up of citizens was the only thing that had enabled them to liberate themselves of the oppressive Crown. This also satisfies the definition of “militia,” as it affirms that the “militia” is not the same thing as the formal standing army. The literal, textbook, encyclopedic definition of a “militia” is that it has nothing to do with the military.
So in conclusion: I am the militia, you are the militia, and We, the People, are the militia.
“…being necessary to the security of a free State…”
Ideals can only survive if people are willing to engage in kinetic acts to defend those ideals. This is not a statement isolated to the American Revolution, either. It also does not mean that the kinetic acts must be violent, as evidenced by the sit-ins, speeches, and protests of the American Civil Rights Movement.
But for any civilization in history, if the fundamental ethos of a culture comes under attack, the culture must be willing to mount a counterattack. This doesn’t just mean opposition to a tyrannical domestic government, it also means that the civilian militia is allowed to help the formal military if a foreign entity assails the population. The security of a free State should be protected from all threats, both internal and external. When waiting to see how bad it would get didn’t work, when compromise and boycott didn’t work, when playing nice and playing along didn’t work, there came a point where enough was enough and war with Britain was inevitable.
Stating that the militia is necessary to the State’s security affirms that if push comes to shove, the people will defend their ideals even at the cost of life. In the immortal words of Patrick Henry, “Give me Liberty, or give me death.”
“…the right of the people…”
The 2A is part of the broader Bill of Rights, which is a document that affirms inalienable Rights afforded to all people. Free speech, free expression, protection from unreasonable search and seizure, protection from self incrimination; these are not privileges that the government can control, like a throne saying, “Well, I suppose you peasants have my royal permission to say that.” These are natural rights that all people have by nature of being a human being, and the Bill of Rights protects those Rights from being abridged by a governing body. So important is the idea of the People that the Constitution itself begins with the phrase “We the People,” announcing in its opening that the citizenry, not a royal throne or oligarchy, is in ultimate control of the country’s future and direction.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
I have heard arguments in recent years that because the Founding Fathers were slave owners, gamblers, partook in prostitutes, and were generally hypocratic to their claimed church or faith, any moral or philosophical ideation of theirs should be thrown out. This argument is essentially saying that the Declaration, the Constitution, and the Bill of Rights should be null and void because the writers were flawed individuals. Martin Luther King Jr, however, would tend to disagree. He understood that, flawed as the people who penned it in the 1700s and executed it in the 1960s were, the words of the founding documents remained powerful and filled with truth even with age. His famous words still echo off of the National Mall.
“In a sense we have come to our Nation’s Capital to cash a check. When the architects of our great republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir... Instead of honoring this sacred obligation, America has given its colored people a bad check, a check that has come back marked ‘insufficient funds.’ But we refuse to believe that the bank of justice is bankrupt... Now is the time to make justice a reality to all of God’s children.”
The Right to keep and bear Arms is a Right of the People. Not of the government, not of the military, of the PEOPLE. The ultimate bulwark against the tyrannical British Throne was its own citizens, and the Founders understood this concept intimately, because they had done it. Beginning the operative clause with “The right of the people,” affirms that self defense from a tyrannical government either foreign or domestic is an inalienable right. It is not a privilege that is given by the 2nd Amendment, it is a natural right that is protected by the 2nd Amendment.
“…to keep and bear…”
Two specific Supreme Court landmark cases illustrate and affirm this part of the operative clause perfectly; DC v. Heller 2008 and NYSRPA v. Bruen 2022.
To Keep is outlined and expanded on in the Heller decision in 2008. At the time, Washington D.C. imposed a ban on handguns, and required any weapons to be kept unloaded and disassembled or bound by a trigger lock. The plaintiffs argued that these restrictions violated the 2nd Amendment, since the amendment protects the right to bear Arms, not “the right to bear arms except for handguns.” Additionally, the plaintiffs argued, because a disassembled or locked weapon is not readily available for defensive use, it severely restricts and may even negate the advantages of firearms for home defense.
On June 26, 2008, the Supreme Court decision held that, “‘(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home,’ and (1.b) ‘the response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.’”
To Keep is an action that is translated and identified as the lawful private possession of said weaponry, and the Heller decision outlined that the amendment specifically protects the natural right to own a firearm. But in 2022, the Bruen decision went a step further to affirm that this right was expanded to outside of the home, as well.
In 2021 the New York State Rifle and Pistol Association argued that New York State’s imposal of a “proper cause” requirement for concealed carry applicants violated the 2nd Amendment by infringing on the right to bear Arms. The plaintiffs also stated that it violated the 14th Amendment as well, as it deprived citizens of natural Rights without the due process of law. At the time, New York was one of five states which required a concealed carry applicant to provide “proper cause” for which they needed their concealed firearm. According to the law, self-defense for an average civilian did not qualify as proper cause; you had to be a celebrity who was recognized by everyone, an attorney who prosecutes dangerous criminals, or a jeweler who deals in a lot of cash. If you're fluent in U.S. history and political corruption, the “proper cause” standard means unless you're a politician, a famous guy, or a rich white male, then tough luck.
On June 23, 2022, the Supreme Court held that, “when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest; rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearms regulation. Only if a firearms regulation is consistent with the nation’s historical tradition, may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s unqualified command.”
For clarification, the Supreme Court is affirming that the government cannot make laws, rules, or regulations simply because they claim that it’s for a good reason. Any restriction on a natural Right must fall within the boundaries of how that Right has been regulated in the past. Justice Clarence Thomas expands this ideal by stating, “We know of no other Constitutional Right that an individual may exercise only after demonstrating to government officers some special need.” There are not historical hoops to jump through in order to exercise your 1st Amendment Right of free speech, or your 4th Amendment Right of safety in the home from unreasonable search and seizure. Thus, the government is not allowed to make you jump through hoops in order to exercise your 2nd Amendment Rights, either.
The Heller decision in stanza two pointed out that the 2nd Amendment is not absolute, and the Bruen decision affirms that. The “historical tradition” the Supreme Court is referencing simply means that felons and the mentally unfit have a historical precedent of being precluded from firearms ownership, which would be “individual conduct” that would “fall outside of the 2nd Amendment’s unqualified command.” This is something we all universally agree upon. And the “unqualified command” the Supreme Court is referencing? “Shall not be infringed.”
The Bruen decision was incredibly important to gun rights because it affirmed and identified the meaning behind To Bear. The Heller decision had already defended the possession of firearms, but it was the Bruen decision which unequivocally announced that the amendment also protected the individual right to use, carry, and bear those weapons in public for the purposes of lawful defense of life.
Despite criticism, the decision did not mandate all citizens to own guns, nor did it allow dangerous criminals to own guns. All it did was eliminate a classist, discriminatory, and historically racist barrier that had forced Americans to be unarmed and helpless in the face of armed felons who didn't care about the carry laws to begin with. Thinking that you are less safe because more law-abiding citizens now have the opportunity to better defend themselves from criminals is the height of privilege. Not everyone lives in a gated community with police on speed dial or a private security detail; average citizens deserve to have effective means of self defense, and that’s what this Supreme Court case was about.
Because these were Supreme Court cases the decisions did not just affect NY and DC, but law in the entire country. This was huge for firearms and self-defense law in America, and reaffirmed law-abiding citizens’ legal freedom to stand against dangerous and violent criminals. Both cases working in concert helped protect the most important verbage in the 2nd Amendment. The crux of the Heller plaintiffs was about home defense and the ownership of firearms. The crux of the Bruen plaintiffs was about public carry and everyday use. Without ownership and usage being protected, the rest of the Amendment is useless. I cannot overstate how important these decisions were; these were landmark cases. Heller and Bruen helped confirm that “To Keep and To Bear” means “To Own and To Use.”
“…Arms…”
This should be a very succinct and quick explanation, but the very term “Arms” has come under fire in the last few decades specifically.
Opponents of the 2nd Amendment argue that at the time it was written, the Founding Fathers only had muskets. While this isolated statement is factual, a modicum of historical context nullifies that argument in its entirety. In 1791 (when the 2A was ratified) muskets were indeed the primary small arm. However, private citizens also owned cannonry, explosives, mortars, hand grenades, and even warships. It was these armaments in possession of the People and not the State which allowed the revolutionaries to rebel against the British Crown in formal war. The same Arms afforded to the standing army were afforded to the People, as well.
Another argument against modern weapons being protected under the 2nd Amendment claims that the Founding Fathers could never have forseen technology like fully automatic capability, but this claim is diffused even more easily. The 1700s prior to the ratification of the 2A alone saw major technological invention and innovation. Bartolomeo Cristofori invented the piano in 1700, John Hadley and Thomas Godfrey first implemented the octant navigational instrument in the early 1730s, and as we well know Benjamin Franklin, one of the Founders himself, invented the lightning rod, bifocals, and the Franklin stove prior to his involvement in the revolution. Several Framers even owned patents on experimental firearms and cannonry. The idea that the Founders were ignorant of scientific invention and the speed of innovation is laughable at best.
In 1776, the military only had muskets. And in 1776, the civilians also had those same muskets; the armaments of the military were the same armaments of the private citizenry. George Washington’s citizens owned their day’s equivalent of modern M4 automatic rifles and F-22 fighter jets; they literally had the same weapons and warships as the military, and still wrote a provision for those not to be taken away. Weaponry has changed throughout all of human history, it always has and it always will. But whether it be a broadsword, a musket, or an modern battle rifle, arms are arms. If Amendments only pertain to the technology of the day they were written, then the only free press we are allowed is a parchment and ink printing press, and the only home that is safe from unreasonable search and seizure is a cobblestone British colony house.
“…shall not be infringed.”
The finale of operative clause and the finale of the whole Amendment. Old English language like “shall” and “shall not” are used heavily in law. The primary reason? They’re powerful.
Such archaic assertions envoke a firm and direct resolution, and carry a finality with them that the casual English language cannot. Read through any legal document: auto loans; releases of liability; transfer of power of attorney; hell, even your renter’s lease. Any time we want to make something unequivocally clear and firm, we use terminology appropriate for the occasion. In the Bruen decision as stated above, the Supreme Court addresses “Shall not be infringed” as the 2nd Amendment’s “unqualified command.” The finale of the Amendment is exactly that: a self-affirming commandment that needs no external defense or expansion in order to convey its purpose and principle. We didn’t stutter, stammer, or mumble. Shall not be infringed means:
SHALL. NOT. BE. INFRINGED.
But what is an “infringement?” Again, referring to textbook definitions, infringing is “encroaching upon in a way that violates law or the rights of another.” To encroach is to intrude upon. If you take it at its direct meaning in the context of the American Revolution, than any law that abridges the citizenry’s ability to alter or abolish tyranny is by nature an intrusion upon that ability.
And I hear you, dear reader. “But, Matt, isn’t it time that we allow just a little bit of infringement? Isn’t it time that we give up some of those Rights? The Heller and Bruen decisions even admitted that the 2nd Amendment is not absolute. Why can’t we agree to a little bit of compromise?”
Because we have compromised. A lot. Every election cycle. For the past ninety years.
The National Firearms Act of 1934, which imposed tax stamps on full autos, suppressors, SBRs, and SBSs. The Federal Firearms Act of 1938, which set the FFL system for dealers and manufacturers. The Omnibus Crime Bill and Safe Streets Act of 1968, which introduced age restrictions and introduced a restriction on handguns separate from long guns. The Gun Control Act of 1968. The Firearm Owner Protection Act of 1986. Undetectable Firearms Act of 1988. The Gun Free Schools Act of 1990. The Brady Bill of 1993. The Federal Assault Weapons Ban (yes, we already had an assault weapons ban before and it was active and in place during the Columbine Massacre).
Gun owners have compromised. We have allowed infringements in the interest of safety, but every time safety is assured, it does very little to affect the targets, but does much to affect the everyday citizen. The government always promises, “Just one more gun control bill, just one more regulation, just one more infringement. We promise this is the one that will finally turn the U.S. into a utopic paradise devoid of violence.” And every time, the governing bodies are the ones who restrict and infringe on the regular people, while their personal security detail is allowed whatever fully automatic, short barreled, high capcity weapons the tax dollar can afford.
This country was founded on the ideals of rebelling against a tyrannical Throne. The founding documents serve to limit not the people, but the governing body so it cannot runaway with its power as the Crown once did. The three branches of government serve as checks and balances against each other, but the People are the ultimate check and balance against the three branches. So though the notion may seem extreme, the reality is that in the context of the literal and contextual translation of the 2nd Amendment, any gun laws that restrict the private citizen are infringements. Sound extreme? So is the idea of a Self-Governing Constitutional Republic: it’s in our very historical tradition to be extreme.
Closing
The Founding Fathers were able to create in two clauses what it took me an entire article and several thousand words to break down, and what we have been discussing at nauseum for the better half of 200 years. The fact that the amendment is so concise yet so detailed is a testament to their unrelenting study of history, government, and language. In my opinion, the simplicity with which it affirms protection of the freshly minted country’s citizens from any government either foreign or domestic is beautiful.
Only three of the twenty-seven words in the 2nd Amendment are capitalized, emphasizing the importance of the Militia, the State, and Arms. The people are the ultimate bulwark against tyranny, the union is a sovereign entity to be protected, and the tools with which the people protect the union are essential.
The Bill of Rights is not an a la carte menu where you can select which Rights apply and which ones do not; either all of the Rights are enshrined in law, or none of them are. If a singular amendment does conflict with what we collectively agree upon, then we cannot simply ignore that amendment. The amendment must be formally repealed by another formally ratified amendment, just as the 21st Amendment ended the 18th Amendment’s prohibition of alcohol. So if you want to abolish the 2nd Amendment, introduce a bill to be voted on by the entire country to repeal it, use a national gun registry to build your target deck, and then mobilize the military against anyone who doesn’t comply. Good luck, Godspeed, and Come And Take It.