This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference . The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center . This post also appears on the FRC’s Forum .
The Second Amendment’s operative clause instructs that “the right of the people to keep and bear arms shall not be infringed.” Although the Supreme Court has given elaborate attention to the particular words of the Second Amendment, it has not yet explored the meaning of the final imperative of the relevant constitutional text—“shall not be infringed”—a phrase the Court has nonetheless re-described in Bruen as the Second Amendment’s “unqualified command.” Even after Heller, McDonald, Caetano, and Bruen, the text of the operative clause that carries actual imperative force remains underdetermined. To this day [even after Rahimi] the Court has refrained from offering “an exhaustive historical analysis” of the Second Amendment in its entirety.
This paper investigates what it meant for a right to be infringed at the time of the Second Amendment’s ratification in 1791 and in the years of the early republic. That periodization accords with what the Court wrote in Heller (that the constitutional text should be interpreted according to the “normal and ordinary” meaning “known to ordinary citizens in the founding generation”) and reinforced in Bruen (the meaning of the constitutional text “is fixed according to the understandings of those who ratified it”). Two primary meanings emerge from the historical record: to infringe a right at the Founding meant either (1) to violate a right so completely as to utterly destroy it; or (2) to abridge that right—leaving it intact yet reduced—but in an illegitimate way. These meanings have origins that trace back to conflicting translations of Magna Carta as well as the political and constitutional history of the American Revolution. The historical evidence shows the presence of these meanings of infringement of rights in the colonial period and that these usages persisted well into the years of the antebellum republic.
Founding era dictionaries were not always in agreement, offering different definitions for infringe. These nonetheless corresponded to the two primary meanings. Some favored violate, break, or destroy, while others gave intrude or invade the property or privilege of another, which tracked eighteenth-century conceptions of rights as property (which could be subject to damage, trespass, or diminution, encroachments by degrees short of a total taking). Webster’s expanded 1828 dictionary encompassed both meanings (s.v. infringe and s.v. invasion, invasive ). Latin-English dictionaries from the Founding recorded similar meanings including weaken, lessen, and diminish.
Centuries earlier, the Latin phrase infringantur vel infirmentur in the 1225 reissue of Magna Carta had received two translations, “infringed or weakened” and “infringed or broken.” While the influential English jurist Sir Edward Coke later complained in his Institutes that one of these renderings of the Great Charter was “very vicious” for a tendency to mislead people as to the full breadth of their rights as Englishmen, nonetheless the bifurcation persisted through the late eighteenth century.
Early colonial charters such as those of Massachusetts and Connecticut set themselves against the infringement of traditional liberties, privileges, and immunities. Magna Carta, too, was a touchstone for Americans’ discussions of what they claimed as their birthright inheritance of liberties. The Great Charter was celebrated in the seventeenth century writings of William Penn (who made verbatim use of the “infringed or broken” formulation in his charters for Pennsylvania and Delaware) and continued to be referenced repeatedly in the growing imperial crisis that culminated in the American Revolution. Although Magna Carta’s legal language was ancient, it remained relevant in American invocations of their rights under the ancient constitution. The Maryland lawyer Daniel Dulany wrote in 1728 that “ill Men, had at Times, invaded, and infringed” the people’s rights, but later rights-restoring statutes “have made New Barriers…to prevent future Infringements, of the like Nature.” When Benjamin Franklin was questioned by the House of Commons in 1766 about what would justify Americans’ construction of the Stamp Act tax as “an infringement of their rights,” he pointed to “the common rights of Englishmen, as declared by Magna Charta, and the petition of right.” Similar recitals could be found repeatedly in the state papers of the revolutionary era, including colonial resolves, petitions, lists of grievances, and declarations of rights. Again and again, American elites described imperial infringements of their rights, especially through acts of Parliament that, without their consent or that of their representatives, imposed taxes or curtailed the right to a jury trial by extending the jurisdiction of vice-admiralty courts. These infringements could happen either by the total destruction of a right or gradually by degrees, and these usages continued through the later ratification debates and the years of the early republic.
Americans were nonetheless ready to agree with the Commentaries of the English jurist William Blackstone, who continued in the tradition of Locke’s social compact theory, that rights could properly be regulated in the normal operation of municipal law. Such regulations, however, had to be legitimately made. In Founding-era America, that meant they had to be the work of representative legislatures, enacted with the public good in mind, and not in conflict with more fundamental constitutional law; they could not (like Blackstone’s account of the despised English game laws ) be a pretext for a hidden, liberty-destroying purpose. When regulations had the hallmarks of legitimacy, rights could be regulated without controversy; otherwise, curtailing rights was either nonconsensual or done for a politically nefarious purpose and amounted to infringement, inviting vociferous opposition.
In the antebellum caselaw involving state constitutions’ analogues to the Second Amendment, we again find the same usages when courts discussed infringements of rights, invoking the social compact background when discussing legitimate regulation using a state’s police power. While courts indicated there might be relevant differences regarding how far the regulatory power extended, based on whether a state constitution’s language was affirmative or prohibitory, they continued to affirm the longstanding dual meaning of how rights could be infringed if restricted through illegitimate means (see, e.g., State v. Reid (1840), discussing Bliss v. Commonwealth (1822), two cases that are sometimes thought to be at odds with each other).
The Second Amendment’s imperative “shall not be infringed” can thus carry two meanings: (1) the right shall not be violated so completely as to be destroyed and (2) the right shall not be abridged through illegitimate process—whether the resulting regulation is the act of an unrepresentative legislature, serves a pretextual purpose contrary to the social contract’s focus on the public good, or collides against a higher or fundamental law (typically expressed in constitutional text). Beyond recovering the meaning of the operative clause’s command, this paper suggests one plausible way to understand the Supreme Court’s recent insistence on historical analogues: they are meant to help determine whether a regulation abridges the right in a legitimate or illegitimate way. In other words, the “why” of Bruen’s historical analogizing is potentially more important than the “how.”