Shall Not Be Infringed

Professor Eugene Volokh of the Volokh Conspiracy blog, in response to a reader who says “The standard of review should be ‘SHALL NOT BE INFRINGED’”, has an interesting discussion on what the courts have said constitutes “infringement” as opposed to “reasonable regulation.”

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.

The question came up with regard to the Nordyke case. Is the government controlling access to government property an infringement or a reasonable regulation? Volokh thinks most courts will tend to say that the government can restrict access to government property and will classify it a reasonable regulation.

In general, with regard to gun rights, Volokh says:

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.”

He ends by pointing readers to a 2009 article he wrote on the Second Amendment for the UCLA Law Review. The article is comprehensive (107 pages!).

I would also suggest reading the comments in the blog post as you have comments from Seond Amendment scholars such as Dave Hardy and David Young.