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!


Facebook comments