Legal Commentary

?Shall Not Be Infringed?

By Eugene Volokh

A commenter discussing the gun show case writes, among other things,

So, along with Chicago and DC trying to keep poor people from exercising their ?fundamental right? by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a ?want? instead of a ?RIGHT?. The standard of review should be ?SHALL NOT BE INFRINGED?.

The trouble is that ?shall not be infringed? doesn?t resolve much until we figure out what it means to ?infringe? a right. Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can?t sell them on government property? How about to say that you can?t even possess them on government property? What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?

Historically, the answer courts have generally given is that ?reasonable regulations? of the right to bear arms aren?t infringements, while ?prohibitions? are infringements. That of course just pushes the problem back to the question of what?s a reasonable regulation and what?s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be ?reasonable regulations? when they should have struck down the restrictions as excessively burdening ? and therefore infringing ? the right. But I mention the historical answer because it suggests that American law has long recognized that not all restrictions are infringements; and my sense is that it is consistent with much of the thinking of the Framing era, in which (for instance) many kinds of restrictions on speech were seen as permissible reasonable regulations.

Likewise, courts dealing with most other rights ? such as the rights to free speech and abortion ? have not treated all restrictions as ?infringements? or ?abridgements.? (This is especially so with regard to the government?s control over its own property, which is at issue in the Nordyke v. King gun show case, but it?s even true with regard to people exercising their rights entirely on and with the private property of consenting private individuals or organizations.) And I think as a general matter this is probably the right interpretation of the constitutional provisions. But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an ?infringement.?

Now this having been said, I?m happy to argue against restrictions that really are infringements; I discuss some in this article. But it?s not enough just to say ?shall not be infringed,? especially when we?re in an area ? such as government control over government property ? where some degree of government restrictions have long been accepted in many areas.

Full post as published by The Volokh Conspiracy on July 19, 2010 (boomark / email).