A Reminder to Americans: The Right to Keep and Bear Arms

by Robert Kalebra, ©2025 

(Jan. 6, 2025) — The right to keep and bear arms is a cornerstone of American liberty, explicitly enshrined in the United States Constitution. The Second Amendment reads: “the right of the people to keep and bear Arms, shall not be infringed.” This simple but profound statement has been the subject of intense scrutiny and interpretation over the years, particularly as lawmakers and courts debate the extent of government control over gun ownership and possession. At its core, however, the Second Amendment establishes an unequivocal guarantee: the government may not infringe upon this fundamental right.

To understand the full weight of this guarantee, it is essential to examine the meaning of “infringe,” explore key legal precedents that underscore the supremacy of the Constitution, and recognize how gun control laws that contravene this constitutional provision are inherently unconstitutional. By understanding the Second Amendment’s role in the broader legal framework, it becomes clear that any encroachment on the right to keep and bear arms is not just a policy failure—it is a violation of the supreme law of the land.

What Does “Infringe” Mean?

To fully grasp the implications of the Second Amendment’s directive, we must first understand the term infringe. According to Merriam-Webster, “infringe” is defined as: “to encroach upon in a way that violates law or the rights of another.” This definition suggests that infringement is not a trivial matter, but rather a direct and unlawful interference with another’s rights. Synonyms such as breach, break, contravene, offend, transgress, and violate all reinforce the concept that infringement is an act of serious legal consequence.

To further clarify:

• Trespass refers to an unlawful intrusion into another’s domain or rights.
• Encroach suggests a gradual, often stealthy, encroachment on someone’s rights or property.
• Infringe indicates a direct violation of rights or a prerogative.
• Invade suggests a hostile, aggressive, and damaging entry into someone’s territory or domain.

In the context of the Second Amendment, any law, policy, or regulation that interferes with an individual’s right to keep and bear arms constitutes an infringement. Whether the interference is direct, subtle, or gradual, it still violates the constitutional guarantee, and thus is unlawful under the framework of the U.S. Constitution.

The Constitution as the Supreme Law

The United States Constitution stands as the supreme law of the land. As the foundation of the American legal system, it provides the ultimate standard against which all laws must be judged. This principle was reinforced in Sparf v. United States, 156 U.S. 51 (1895), a landmark Supreme Court case in which the Court affirmed that the Constitution is not just a framework for governance but a binding legal mandate. The ruling underscored the importance of the Constitution as a binding source of law, particularly for lawmakers, who must conform their actions to its provisions. It is the law of the land, and any law that conflicts with it is inherently unconstitutional.

Similarly, in Lance v. Board of Education of Roane County, 170 S.E.2d 783 (1969), the West Virginia Supreme Court reaffirmed that the Constitution holds supremacy over all other laws. The court emphasized that no statute, law, or executive action, whether at the federal or state level, can supersede or override the provisions of the Constitution. This principle, reaffirmed by courts across the nation, means that any government action that contradicts the Constitution—such as laws infringing upon the right to keep and bear arms—must be invalidated.

The Role of Judges in Interpreting the Law

The interpretation of the Constitution and its provisions is the fundamental responsibility of judges. The role of the judiciary is not to legislate or create new laws but to ensure that existing laws comply with the Constitution’s clear mandates. This responsibility is central to maintaining the rule of law and protecting individual rights.

In Tanzin v. Tanvir, 592 U.S. 43 (2020), the U.S. Supreme Court clarified the role of judges in interpreting the law. The Court ruled that a judge’s task is to interpret the law as an ordinary person would—based on common sense and straightforward reasoning. The interpretation of the law should not be clouded by complex legal arguments or abstract interpretations. The law, including the Constitution, is meant to be understood by all citizens, not just legal professionals. In the case of the Second Amendment, its language is plain and unambiguous: “the right of the people to keep and bear Arms, shall not be infringed.” It is a guarantee, not a suggestion.

Gun Control Laws: A Violation of the Second Amendment

Gun control laws, at both the state and federal levels, by their nature, infringe upon the Second Amendment’s guarantee of the right to keep and bear arms. These laws impose restrictions, limitations, and prohibitions on the ownership or possession of firearms. Whether they involve bans on certain types of firearms, mandatory registration, or other regulations, they directly violate the constitutional right protected by the Second Amendment.

As the Supreme Court established in Marbury v. Madison, 5 U.S. (2 Cranch) 137 (1803), any law that is inconsistent with the Constitution is void. In this landmark case, Chief Justice John Marshall outlined the principle of judicial review, which gives courts the authority to declare laws unconstitutional and void. Marshall famously stated: “A law repugnant to the Constitution is void.” This ruling affirms that any law that violates the clear language of the Constitution must be disregarded by the courts.

Thus, any law that limits or restricts the right to keep and bear arms is, by definition, unconstitutional. Gun control laws that infringe upon this right are not just bad policy—they are illegal and must be struck down by the courts. The doctrine established in Marbury v. Madison provides the legal basis for this principle, and it applies to all aspects of constitutional law, including the Second Amendment.

The Doctrine of Judicial Review and Void Laws

The decision in Marbury v. Madison is the foundation for the doctrine of judicial review. This doctrine allows the courts to examine the constitutionality of laws and, if necessary, strike them down. A law that contradicts the Constitution is considered void, meaning it has no legal effect. The Marbury decision made it clear that judges have the authority—and the duty—to invalidate any law that is repugnant to the Constitution.

The principle of judicial review is crucial for maintaining the integrity of the Constitution. It ensures that laws enacted by the government do not violate the fundamental rights guaranteed by the Constitution. Gun control laws that infringe upon the right to keep and bear arms are a clear violation of the Second Amendment and, as such, must be deemed void. This principle has been reaffirmed time and again by the courts and remains an essential safeguard against unconstitutional laws.

Article VI, Clause 2: The Supremacy Clause

The supremacy of the Constitution is further reinforced by Article VI, Clause 2 of the U.S. Constitution, also known as the Supremacy Clause. This clause declares that the Constitution is the supreme law of the land and that judges in every state are bound by it. It affirms that no state or local law can override the protections provided by the Constitution. As the clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

This clause reinforces the idea that the Second Amendment, as part of the Constitution, takes precedence over any state or federal law that seeks to infringe upon the right to keep and bear arms. Gun control laws that restrict or regulate firearms are therefore unconstitutional and must be struck down, regardless of the jurisdiction in which they are enacted.

The Judicial Obligation to Protect the Second Amendment

As established in Marbury v. Madison and reaffirmed by the Supremacy Clause, judges have an obligation to protect the Constitution from unconstitutional laws. This responsibility is particularly important when it comes to the Second Amendment. The right to keep and bear arms is one of the most fundamental rights protected by the Constitution, and any attempt to restrict or infringe upon it must be scrutinized carefully.

Gun control laws that seek to limit the availability of firearms or impose burdensome regulations violate this right. The Second Amendment guarantees that the right of the people to keep and bear arms “shall not be infringed.” Therefore, any law that interferes with this right is, by definition, unconstitutional. Judges are bound by their oath to uphold the Constitution and must ensure that no law infringes upon this fundamental right.

Conclusion: Upholding the Second Amendment

The Second Amendment guarantees a fundamental right to all Americans—the right to keep and bear arms. This right is clear and unambiguous, and it cannot be infringed by any law, policy, or government action. Gun control laws that limit or restrict this right violate the Constitution and are therefore unconstitutional and void. As established in Marbury v. Madison, Sparf v. United States, and Lance v. Board of Education of Roane County, the Constitution is the supreme law of the land, and all laws must conform to its provisions.

It is the duty of judges to interpret the law as ordinary citizens would understand it, and in doing so, they must ensure that the Second Amendment’s protection of the right to bear arms is fully upheld. Gun control laws that violate this right are not just bad policy—they are a direct infringement of constitutional guarantees and must be struck down. The Second Amendment is not negotiable, and it is the responsibility of all public officials, including judges and lawmakers, to protect and defend it.

The right to keep and bear arms is not only a vital aspect of individual liberty but also a necessary safeguard against government overreach. It is the duty of every citizen to understand, protect, and defend this right. The Constitution protects it, and the courts must ensure that no law infringes upon it. In the end, the right to keep and bear arms is an essential freedom that must remain free from unlawful infringement.