Infringed

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 careful attention to most of the Second Amendment’s text, its final words—“shall not be infringed”—remain unexplored, despite their identification by the Court as the amendment’s “unqualified command.” Courts and commentators have taken it for granted that to infringe simply means to violate, but a careful study of its meaning is long past due. This Article recovers the meaning of “shall not be infringed” through a detailed historical investigation of what it meant for a right to be infringed at the time of the Bill of Rights’ ratification in 1791. Two primary meanings emerge from the sources: to infringe a right meant (1) to violate a right so completely as to utterly destroy it; and (2) to restrict that right—leaving it intact yet reduced—but in an illegitimate way. By the Founding era’s own terms, legitimate restrictions do not infringe the right to keep and bear arms; only illegitimate ones do. If a regulation was made by a representative legislature, aimed at the public good, was not compromised by having a pretextual repressive purpose, was not in conflict with a higher or more fundamental law of our constitutional system, and did not oblit-erate the right, then that regulation did not infringe the right.