The NRA has engraved on it’s headquarters building the words of only one half of the Second Amendment to the Constitution of the United States. It says “the right of the people to keep and bear Arms, shall not be infringed.”
The opinion written by Justice Antonin Scalia in D.C vs. Heller makes no attempt to discover or explain the meaning of “infringed” as it was intended by the drafters of the Second Amendment, but it assumes in many places that it broadly covers an interference with the right denoted in the text.
Dictionary definitions of infringe in the past have generally been based on either the idea of trespass on a right that reserves some privilege to the right holder or, somewhat metaphorically, on violating a restriction already existing in the right infringed. More recently definitions have begun to appear that include the idea of interfering with the exercise of a right. I believe that this extension is the result of the widespread campaign of gun proponents to force that interpretation onto the Second Amendment. It is an extension resulting from the modern debate and is not appropriate to a search for the meaning of the text in the Bill of Rights. A typical definition from the link above is:
infringe
1. (tr) to violate or break (a law, an agreement, etc)
2. (intr; foll by on or upon) to encroach or trespass
The most widespread and well known use of the word infringe outside of the context of the Second Amendment is in the field of intellectual property. A person commits an infringement when they do an act which is reserved by the law to the holder of a patent or copyright or other intellectual property right. It is not used to denote interfering with the property holder’s use of that right. For example, a person who improperly copies and publishes a copyrighted work would be considered an infringer, but not a person who censors works or prohibits publishing them.
If the right in the amendment is for individuals to be armed for their own purposes, self-defense or otherwise, what then is the meaning of “infringed?” I can think of no way that the trespass or violate concept is literally applicable, so it must be in a metaphorical way the interference concept would be intended. It’s in the nature of a metaphor that the meaning is not intrinsic to the words but that it comes from the surrounding context, and the context here is the prefatory phrases that refer specifically to militia. This is the link that Scalia has denied, but he says in the opinion:
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.’ That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (‘The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.’ The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
The clarifying function that Scalia refers to in this case gives the context for the interpretation of “infringe.” Infringe is the logical word to refer to the Federal Government taking over the regulation of the Militia from the states, if that is seen as the right protected. It is not metaphorical in that meaning. It is the historical meaning of the Second Amendment as envisioned by those who oppose Scalia’s view such as the justices writing the dissents (Stevens’ Dissent, Bryer’s Dissent) to the Heller decision. It’s easy to imagine that the drafters of the Bill of Rights would consider this the clearest and best word to express that meaning.
Applying “infringe” to a personal right to be armed is much more problematic. It must refer to a metaphorical extension of the meaning of the word to encompass a denial or a limitation or an interference with that right. The drafters of the Bill of Rights were as clear and direct as they could be in choosing words. They did not write in analogies or pick words because they thought them more impressive than plain language. In other places, they used much more direct phrases to express interferences with rights including “prohibiting” and “abridging” in the First Amendment, “shall not be violated” in the Fourth Amendment and several direct enumerations of the actions prohibited to the government.
Even if Scalia is right, as I believe he is not, in stating that the prefatory clause does not limit or expand the scope of the operative clause; the same effect comes from applying the clarifying function that he admits.
In summary, consideration of the specific phrasing of the Second Amendment’s second part strongly supports the view that the amendment is intended to apply only in the context of an organized militia and that it is not intended to address any government limitation of using arms for private purposes.