It’s the Exceptions, Stupid! Why “Shall Not Be Infringed” is a Misnomer

the constitutionFor many non-lawyers, the idea that the Constitution is not only fallible, but riddled with exceptions, may sometimes come as a surprise, if not a shock. Nevertheless, truth be told, the Constitution is actually brimming with exceptions and in some cases, so much so that they outweigh the rules. Constitutional law is rich, complex, complicated, and in some cases profound. It is never good enough to simply read the words of the document. Why? Because the Supreme Court, the branch vested with the constitutional authority to interpret the Constitution and the law, never does. If one truly wants to understand the Constitution, they must look deeper, read further, think beyond the words on the page, and comprehend a complex set of legal opinions known as case law.

Fortunately, the Supreme Court is the most transparent branch of government. When they answer a legal question or decide the constitutionality of a specific law, they reduce their decision to writing for the entire populous to see and read, should they so choose. Unfortunately, despite the fact the Court’s decisions are readily available, many people will never read one–they are long, dry, and filled with archaic legalese. Moreover, even if and when one does decide to read a Supreme Court decision, often they will have a hard time putting their finger on exactly what the Court is trying to say because their brain is not trained in the science that is dissecting legal decisions. By virtue of the depth of the subject, I will not be able to go through every constitutional right and every exception in this post. However, I will attempt to parse some of the more common exceptions, in order to show that the 2nd Amendment can in fact be infringed, despite it’s plain language which suggests the contrary.

As I’ve mentioned in a previous post, the Supreme Court is vested with the power to interpret the Constitution, determine what each provision within the document means, and decide the constitutionality of laws, even if the national public disagrees. In doing so, the Court often looks beyond the plain language of the Articles and the Amendments because many of the Constititions provisions are seemingly ambiguous. Let’s start with the 2nd Amendment, since it has been the topic of much controversy recently. The plain language of the Amendment states,

“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.”

But what does that all actually mean? What is a “well regulated militia”? What does “necessary to the security of a free state” mean? More importantly, what in fact constitutes an “infringement”? Does a law that makes it even slightly more difficult to effectuate ones right to “keep and bear arms,” such as universal background checks, constitute an unconstitutional infringement? Or must the infringement be more constraining? These are the exact types of questions the Court must answer.  By examining the scope and limitations of other constitutional rights, we can easily see and understand that the words of the Constitution must never be taken literally; doing so is only doing oneself a disservice. This narrow minded approach will almost always lead one to an incorrect understanding of a legal precedent. If one is genuinely interested in understanding how and why all constitutional rights can be infringed, they must first comprehend and appreciate the levels of scrutiny which the Court uses to make such a determination. In brief, when it comes to fundamental rights, if the government can show that they have a compelling purpose for passing a law, and the law is necessary to effectuate this compelling purposes, as well as narrowly tailored so that it accomplishes this purpose in the least restrictive means, the Supreme Court will generally uphold the infringement on the right. On the other hand, if the government cannot meet this high burden, the Court will rule that the law is unconstitutional.

Before we return to the scope and limitations on the 2nd Amendment, let’s look at some other constitutional rights and their exceptions. For one must first understand the exceptions, before they can unequivocally appreciate the nature of the rights.

A Few First Amendment Exceptions

The 1st Amendment states,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

From it’s plain language, one would think that any law which “abridges the freedom of speech,” or any other part of the Amendment is unconstitutional. However, one would be wrong. In the case, Brandenburg v. Ohio, the Supreme Court specifically created an exception to the 1st Amendment’s prohibition on laws which abridge speech. The Court stated that laws which prohibit speech are nonetheless constitutional, so long as the speech that they prohibit will result in an imminent harm, a likelihood to produce illegal action, and is spoken with the intent to cause imminent illegality. Moreover, in a case known as Chaplinsky v. New Hampshire, the Court held that laws restricting, “fighting words” (“[words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace”) were also constitutionally acceptable limitations on the freedom of speech. In addition, despite the Amendment’s prohibition on laws which abridge speech, the government may also regulate certain forms of speech such as obscenity (Roth v. United States and Miller v. California), child pornography (New York v. Ferber), and profanity on television (FCC v. Pacifica).

Some Fourth Amendment Exceptions

The 4th Amendment states,

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

For starters, in Katz v. US, the Supreme Court held that the 4th Amendment simply does not apply unless a person has an objective reasonable expectation of privacy and has subjectively manifested that expectation. Thus, in places where one cannot expect privacy, such as open fields or public places, the 4th Amendment does not apply. Moreover, the police may look through ones trash and/or abandoned property without ever implicating the 4th Amendment. Furthermore, there are many exceptions to the 4th Amendment even when it does apply. For example, so long as the police have probable cause to believe a crime has been committed, the police may conduct a warrantless search when contraband is in plain view (Horton v. California), when exigent circumstances exist, and/or when it is necessary for them to provide emergency aid (Brigham City v. Stuart), and in many other specific situations.

I could keep going by listing every constitutional right and every applicable exception, but I’m pretty sure that would just get lengthy and boring. I would also probably lose your attention before I got to the crux of my argument, if I hadn’t already. If you are immensely interested in learning about all of the exceptions, I would suggest giving, “Constitutional Law for Dummies” a read. Although I have personally never read it, it comes highly recommended.

Getting back to the 2nd Amendment, if it isn’t already clear–despite the fact it says “shall not be infringed,” just like the 1st Amendment says “Congress shall make no law,” and the 4th Amendment says “shall not be violated,” it can in reality be infringed. What is or is not considered an unconstitutional infringement is determined by the Supreme Court, not by the people. “Shall not be infringed,” does not mean that any law respecting firearms is an infringement. Rather, it means that the law(s) must do more than merely contravene the right. For example, in the most recent case to interpret the 2nd Amendment, DC v. HellerJustice Scalia, writing for the majority, explicitly stated,

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…

…Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

All this considered, there is just no legitimate legal argument that can be made for the proposition that all of the other Amendments can be subject to exception, but the 2nd Amendment cannot. It is axiomatic that if some constitutional amendments can legally have exceptions, then all constitutional amendments can legally have exceptions. The 2nd Amendment is no different. Anyone who claims otherwise is just plain wrong. That’s not my opinion, that’s a legal fact.

Ilyssa Fuchs

Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!

Comments

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  • Nonsense, only treasonous unconstitutional politicians write unconstitutional law, and maybe if we execute a few Republicans for treason against their oath to the Constitution, and eliminate all the unconstitutional laws they wrote, they won’t do that anymore. Terrorist threat law, banning cultural weapons, roadside checkpoints, asset seizure laws, ignoring states rights and American’s rights in regard to a plant, and of course destroying 50% of America’s work to save entrepreneurial cycle with their 14th amendment violating child support laws, insisted on by New Gingrich, and a Republican congress as compromises to pass the “welfare to work” bill. I find all that they have done intolerable, and demand my rights be restored, and the conspiring Republican corporate whores be arrested!

    • Independent reason

      Why just Republicans? Democrats are just as treasonous. Thankfully, we have Independents and libertarians for voices of reason.

      • Don’t trust Independents

        Like you can believe anything an Independent says. Ha

      • A libertarian is nothing more than a republican who’s ashamed to admit it.

      • digs

        A Libertarian is liberty protecting individual with no necessary ties to other parties.
        a repub falls Far short of a Libertarian

    • meme

      You’re right about your reply….however improbable.

    • Well, that was a reasonable and well thought reply.

    • Stevr Winters

      Bought and paid for liberal judges in Stupidville California.Kamala Harris illegally interviewed cause she knew these Worthless Liberal Judges would infringe on the 2nd Amendment.So Calistupid could gets its way of rewritng the Bill of RIGHTS and the Constitution.Since there is no open carry and now there is we deny everybody conceal carry.Crooks still have them and Stupid California’s policy in self defense if” just get killed and be happy about it” Gee I wonder if Harris and Feinstein have armed guards? Guess they will have to give up theirs.Csntbwait for Trump to be President and put these Stupid Liberals in the place
      ..The Toilet!

  • Actually, the phrase in the article “the branch vested with the constitutional authority to interpret the Constitution” is not technically correct. The Supreme Court is the branch of government that claimed for their branch the authority to interpret the Constitution. Nowhere in the Constitution is the power to interpret the Constitution given to any of the three branches, the Supreme Court simply assumed it in Marbury v Madison. It has been accepted as a Constitutional power ever since that decision but that power does not come from the Constitution, it comes from the Supreme Court itself.

    • R. Eagles

      You are a lawyer/law student, aren’t you?

      • Could be a guy who just reads.

      • William

        If the American citizen were well informed and well educated there would be little need for lawyers.

    • Dennis M

      US Constitution Article III Section 1 reads:
      “The judicial Power of the United States shall be vested in one supreme Court”
      Definition of judicial Power:
      “The constitutional authority vested in courts and judges to hear and decide justiciable cases, and to interpret, and enforce or void, statutes when disputes arise over their scope or constitutionality.”

      • Tom Lacovara

        this is absolutely correct …..until…..what the public is unaware of. And that is that we are NOT operating as a free Constitutional Republic. We have not been for some time. Evidence of this has been proven time and again. By the Federal Reserve chairman that informed Congressmen that if the debt ceiling was not raised MARTIAL LAW would be declared. AND the NDAA and PATRIOT ACTS, THE NSA…..I bring these up to back up part 2 of this comment. TRUTH ? fear! The truth is that the founders were clear and the 2nd if you read their writings EXISTED to empoer the PEOPLE and the government existed soley to protect and preserve the rights of the people and only with the consent of the governed. That being said, they also said that every 25 years it was time to clean house ….and if we failed to keep the govt honest and in fear of the people, tyranny would certainly overcome the free Republic ….George Washington, the biggest supporter of this view A shining example of how the 2nd amendment was to work, is the Battle of Athens TN. No other example could be more absolutely perfect to explain this…..if the author know not of that battle, then it would only stand to confirm how ill informed they are

      • Jessica M*****

        That definition of judicial power, where did it come from? Lmfao

      • Chris Bowen

        From the people who wrote the Constitution. The SCOTUS was not in existence until the Constitution was written, so unless one of them had time traveling powers they did not define it.

      • Wayne Clark

        This doesn’t say SCOTUS was to interpret the Constitution, rather, “to interpret, and enforce or void, statutes when disputes arise over their scope or constitutionality.”
        Which means, when government tries to hoodwink the populace by making up some bullshit laws that are unconstitutional, they (SCOTUS) have the authority to decide that it’s bullshit, or, on the flip side, they can decide if a law IS constitutional, BY COMPARING TO THE CONSTITUTION’s PARAMETERS! Even at that, it is a recommendation…not a law! That’s left to the legislators…which is a whole different ball of wax.

  • pierider

    It seems to me it would have been more relevant to point out examples of constitutional gun control laws, such as the National Firearms Act of 1968.

    Today no one questions the fact that you cannot buy a gun through a mail-order catalog as you could before then. In fact, we would think it was a very bad idea if people could.

    • CuriousJorge

      Why?

  • This isn’t so much an argument that constitutional rights can be abridged as much as it is just pointing out that they already have been.

    • Tom Lacovara

      They have been completely taken out of context by the language that the founders used and the letters to each other that clearly destroys this article….utter progressive dribble.

  • Chuck Johns

    Create law, Violate and Infringe are 3 completely different legal segments and terms. You forgot to take many other factors into consideration to prove your point. Also your article read like a crude version of a boring opinion. It is a violation of the 1st amendment by your very definition above.

    • Tom Lacovara

      AMEN

      • Wayne Clark

        I second that emotion!

  • That one guy with a funny hat

    Typical progressive fascists bullocks.

  • “Populace”, not “populous”. *sigh*

  • Christian

    “we can easily see and understand that the words of the Constitution must never be taken literally”

    BS it should be taken literally.

    militia = a body of citizen soldiers as distinguished from professional soldiers.
    free state = a state where the people are not slaves to the government
    infringe = to encroach or trespass

    Of course if your motivation is to take away freedom the constitution needs to never be take literally. That way you can dilute it down to mean nothing at all.

  • NymRod

    This is BS to the highest degree.

  • Benjamin Walburn

    “It’s the exceptions, stupid.” What exceptions? There are no exceptions after “shall not be infringed.” It simply moves on to the next Amendment. “Shall not be infringed” is an absolute statement. In the words of MC Hammer “Can’t touch this”.

    The Supreme Court has no power to create exceptions to an absolute statement. There are no exceptions, stupid!

  • Polymathicguy

    What a Liberal/Progressive poster child you are – just because you have personally decided that it is “axiomatic” does not make it so … and it is not. The Amendments are not intertwined. No, you can’t just read the words, you have to understand the historical context in which the words were written. i will give you a clue what “shall not be infringed” means. These people just fought a bloody war with an oppressive government and won – thanks in large part to a citizen militia who were armed. Get it? Probably not …

  • James

    Maybe you just picked bad examples, but 1st amendment …. ” will result in imminent harm….”. 2nd amendment…..”probable cause” bag of heroin on front seat of car. In what way does carring a revolver fall under any of these exceptions. There is no probable cause of a crime or imminent harm here. Now I know you will say people can conceal carry but try getting a concceal carry licence. It is seriousley INFRINGED UPON.

  • Tom Lacovara

    I must say that you can not be at ALL a lawyer, because if you were, sadly you would be frighteningly dangerous to liberty. Exceptions? First, the exceptions of which you speak are not needed to be argued and truth be told, it is only argued or debated by those who seek to validate their own need by arguing at all what is so simply plain and in fact easily understandable to any that are open to the common sense that to comprehend the details here we must read the writings of the men who drafted the Constitution to very easily understand that the complications that are often extremely incorrect are void of THAT understanding. There are NO inconsistencies in the second amendment, and no exceptions to free speech. The preamble establishes guidelines that the amendments are constrained by which is the EXCEPTIONS that you inaccurately refer to. Allow me to clarify… A well regulated militia – the founders had a clear definition of what well regulated meant and it does not mean that the government could enact “regulations” which the term was NOT used as it is today, and in fact the language was cooped for the purpose by lawyers to subvert the actual meaning, which the founders called well regulated was well trained….. “being necessary to the security of a free state” – the founders openly discussed the reason that the federal government existed was soley to PRESERVE AND PROTECT the liberties OF the people. That being said they also realized and outwardly vocalized that the government CLEARLY was to fear the people not the other way around, and the necessary security they also openly discussed was for the states to be secure from federal over reach….which is exactly what is happening due to interpretations such as yours and those of judicial activists that have violated their oaths by allowing these modern interpretations and modern definitions of ,meanings that the founders DID NOT mean and that is obvious to any who have read the letters they wrote to one another during this period. To ignore that content is to willfully disobey it. … ” the right of the people, (which IS the militia by the founders definition) to keep and bear arms, “SHALL NOT BE INFRINGED” if there was any misunderstanding prior to this part, this part, so said several founders WOULD BE THE SAFEGUARD!!!! YOU either have never read these letters, and do you not dare say they do not matter……as it most certainly does. The lie is that since day one, Thomas Jefferson said he brought to us a Republic, if we could keep it……and I could quote a hundred quotes by the men who wrote and formed the document that absolutely confirm this, but as usual ….MOVING FORWARD and PROGRESSIVISM, IGNORES COMMON SENSE…..both the defined meaning AND the book. And frankly it not only disgusts me, but as I am a student of history, I can tell you that talk like you spew, is not free speech either …..because your idea of that is horrid too……there is NO exception to Free Speech……Life liberty and the pursuit of happiness according to the common law, which in the founders days, before lawyers had a stable hold on the courts, was always understood that the first essential civilized rule was Harm No One…..and all rights fell in behind the common law. So what you say are exceptions are modern hog wash! Common law, common sense dictates that free speech and the protection thereof did not mean that one bears no responsibility. Which is also a fact you leave out. You wish to yell fire where there is none? In a crowded theatre? It is free speech, is it not? OF COURSE NOT !!!! Free speech meant that one could not be silenced for their views….and the expression thereof. But today with little morality, and little common sense, UNLIKE THE DAYS of the founders, while we must be cautious to trample on free speech, we must also be able to discern what is speech, and what is inflammatory derogatory, and damaging usage thereof that causes harm…..real harm, especially if it is false. Please read much more and educate yourself before writing an article so filled with certainties that are simply FALSE

  • digs

    Many grammatical mistakes and homonym issues

  • SupremeLaw

    not to be taken literally? are you kidding? because all our laws (and the Constitution is the Supreme Law) is written in parables? wtf is in that liberal kool-aid? The Supreme Court only makes exceptions when there is a clear harm involved. Otherwise, it is taken LITERALLY!

  • J M

    another article downing the intelligence of the regular person and on the side of the government and lawyers…. really sad, what is this country coming too?

  • OC DAB
  • Merle Burbaugh Jr

    No case law changes ‘shall not be infringed upon’ to shall not own unless we say so.

    • Chris Bowen

      Like shall not be abridged?

  • Fatt Wells

    Yes, this author is a dangerous person.

  • Hydrium

    Progressively stupid, how does it feel to be the loud obnoxious minority that is eating itself into irrelevance and obscurity?

  • Gandolfication

    Oh god. The gun fanatics here do not like the obvious fact, history and logic that we not bestowed with absolute rights by the constitution or anything.

  • A26

    Your logic is flawed by believing that we should not take the words literally but instead accept the judgement of a court that has justices whom are appointed, not voted in by the people, over the words of the Constitution while interpreting the words with a historical context. If we are to follow case precedents instead of reading the Constitution then Plessy v. Ferguson would continue to have precedence and Brown v. Board of Education would have never overruled the unconstitutional decision from 1896. We cannot base what is justice in case law alone, yes it may help the judicial system make decisions but if they make an unconstitutional decision then that standard will be indefinitely perpetuated. Also, for the 1st amendment rulings you mentioned if those provisions were not set in place then other people’s right would be infringed without constitutional protection so that is a completely different story than someone transferring/selling a private firearm in which no party was deprived of liberty. It truly scares me that an attorney holds these beliefs and logic. I pray you are never an appellate judge.

  • Tim Gravert

    One interpretation is that Lawyers are paid to find loopholes in laws. They’re are seen this way because most of our laws are written to get the crooked with good lawyers out of trouble while it still imprisoned the people who are outside of this fraternity of established thought. The Constitution is different. The Constitution is a document that has only been undermined by the Lawyers it sought to keep in check. It was written in a way that you could and still can understand it without the help of a legal council’s help. It’s written for, “We the People.” Shall not be Infringed. This is not an opinion, it is a right. Everything else is rhetorical questions and made up excuses of why a lawyer will say you misunderstood what you just read. Tim Gravert

  • Jessica M*****

    I stopped reading this ignorant (Or maybe the author is not knowledgeable enough for such a subject) rubbish before I could make it to the end of the first paragraph.

    “Because the Supreme Court, the branch vested with the constitutional authority to interpret the Constitution and the law, never does.”

    Please show me where in the Constitution it grants authority to SCOTUS to interpret the constitution. Anybody?? I’d really like to know, but I’m having trouble finding it.

    The sad fact is way back when they just started doing it and no one questioned it. And they just kept doing it, and doing it. Fast forward to today and it is so normalized that jackasses like this no brain liberal idiot believe SCOTUS is “vested” by the constitution to interpret it.

    • Chris Bowen

      Jessica, lets ask a logical question of you, if I am. How do you rule on constitutional matters without having the authority to interpret the Constitution?

    • Matthew Messerly

      Maybe no one questioned it because they all agreed on it being an implied power. The constitutional debates and private letters so oftened used to support a private and universal right to own guns can also be used to support judicial review.

  • EdwardJames

    If the law cannot be written simply and understood at face value by the masses then it should not be law. If it requires careful analysis by elite soothsayers just to be comprehended and ‘correctly’ applied then it is not of the people, for the people and by the people.

    Give me literally or give me death!

  • Gary Mattis

    Case Law has been illegally used to undermine the Authority of The Original Document The US Constitution ! , No better example can be made then The 2nd. Amendment ! , People means people ! The right of the people means people ! People is not government , militia is private gun owners when used in proper context ! , Gun Owners made up militia’s during the American Revolution , it was not a national guard , it was a militia of private gun owners ! . Article V1 Supremecy of US Law , Clause 2 states in part ; Anything in The Constitution or Laws or Any State to the Contrary notwithstanding. All other law, national or state in conflict is null and void ! Gun control is illegal law null and void and furthermore it also lacks proper Due Process of Law ! No Citizen shall be deprived of life, liberty or property without proper Due Process of Law , a trial by a jury of his peers ! , gun control laws have no jury trials making them double infringement and illegal because a Constitutional Right is above any and All administrative laws ! , Constitutional Rights are the highest form of law. We can interpret the laws properly , you lawyers and Judges are Judicially Corrupt ! , You do not Obey The US Constitution !

  • Gary Mattis

    The Supreme Court’s Authority is only to determine issues between the states and federal government , not to rewrite or change the meaning of the original Constitution !

  • Gary Mattis

    Rights are to be determined by jury trials , not by a Judicially Corrupt supreme court ! , Ignore gun control laws ! Consider them null and void ! , No Citizen shall be deprived of life, liberty or property without proper Due Process of Law , a trial by a jury of his peers ! , No jury is gonna convict You !

  • Jon

    (TRY TO GUESS WHETHER OR NOT I OWN GUNS BEFORE YOU READ THIS THRU ENTIRELY)

    On the topic of the 2nd Amendment and how to decide the Constitutionality of existing laws (ie NFA 1934):

    There is NO interpretation needed for the 2nd Amendment. Why? Because the Authors put the original intent, scope, and permissions DIRECTLY into the text itself:

    “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.”

    Let’s break this down logically:

    WHO: The people, collectively a well-regulated militia,the State
    WHAT: Right to Keep and Bear Arms
    WHERE: The State
    WHY: Necessary to secure the State’s Freedom (Nothing more OR less)

    Therefore, if you’re completely unbiased and non-political, the 2nd Amendment is EASY to understand and apply. Any firearms law that “infringes” (aka “violates”) the COLLECTIVE ENTIRETY of the 2nd Amendment is unconstitutional. All other firearms laws are constitutional.

    For example, let’s examine the Constitutionality of the NFA of 1934. To do this, we will compare each aspect of the NFA of 1934 with each aspect of the 2nd Amendment:

    WHO: Does this law affect the People, a well-regulated militia, the State? Yes. Of course.

    WHERE: Does this Law affect them in their State? Yes,of course.

    Now here’s the big one….

    WHY: The ONLY LITERAL and Constitutional purpose of the 2nd Amendment is EXPLICITLY stated: the People’s/Militia’s necessary ability “to secure the Freedom of the State”. So for the “WHY” or PURPOSE we MUST ASK…”Does the NFA of 1934 hinder the People’s ability to secure their State’s Freedom?

    And the answer is, in short, No. The NFA limits do not hinder the People/Militia from securing the security of the State. At least not to any significant degree. Now if you disagree on this, you must show how NFA regulations such limiting machine guns, silencers, SBRs, etc “violates” (aka “infringes”) our ability to “secure the Freedom of the State”.

    NOTE: A good question to ask about each section of the NFA (each weapon class) is this. “Does this regulation [of weapon X] make it harder for the People to secure their State’s Freedom? It would also be wise to ask if there’s ANYTHING that would justify such an “infringement” of ability to secure the State’s Freedom . (NOTE: I can’t think of anything that would, but you must ask, because this is the writings of men, not of God Himself).

    WHAT: Does NFA 1934 “infringe” on the People’s Right to Keep and Bear arms? Yes. This is not in question. The NFA CLEARLY limits the use of specific “Arms” and the Right of the People to “Bare” them.

    But that is NOT the final answer. Remember, you MUST consider the ENTIRE 2nd Amendment all together, as a WHOLE, especially because it is written in a single sentence, a clearly intentional decision by the Authors.

    So what is the final answer? Is the NFA of 1934 “Constitutional”?

    The answer is …… YES, it is almost certainly “Constitutional”. And here’s why….

    While the NFA applies to “The People/militia/State”, and it also IN their State, and it DOES limit “Arms” and “Baring” those arms….. it DOES NOT violate (to any significant degree) the only stated and legal PURPOSE of the 2nd Amendment (the “WHY”). The NFA of 1934 does not limit the People/Militia’s firearms “Keeping” and “Baring” to a degree that it violates their necessary ability to “secure the Freedom of the State”. Now there may very well be PARTS of the NFA rules that ARE unconstitutional, but you would have to show how they significantly hinder the People/Military from “securing the Freedom of the State”. And my educated guess is that THIS is the very reason why the NFA of 1934 actually passed and has stuck.

    In Summary, the 2nd Amendment is not a universal right of every individual to own any gun, anywhere they want in America, for any reason. The 2nd Amendment is only for the EXPLICIT purpose of “securing the Freedom of the State”, and it only protects the Right of the People to Keep and Bare arms from being “Violated”. Restricting certain weapons that are not necessary for “securing the States Freedom” does not necessarily “violate” this right. The Authors knew this Right was necessary but also limited, and that is why they wrote the 2nd Amendment the way they did.

    (I AM AN AVID GUN ENTHUSIAST AND POSSESSOR OF A LIFETIME CCW PERMIT IN INDIANAPOLIS. I CURRENTLY OWN NUMEROUS SMALL ARMS AND AMMUNITION AND CARRY IN PUBLIC REGULARLY. AND I AM THANKFUL FOR THE FREEDOM TO DO SO. BUT I KNOW THAT PRIVILEGE ONLY COMES WITH RESPONSIBILITY)