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“Shall Not Be Infringed”… Unless You’re Behaving Irresponsibly, Like Kristi Noem

In her weekly propaganda column, Governor Kristi Noem appeals to the phallus-y absolutism of the Second Amendment:

The Constitution doesn’t always use plain language, but when it comes to our right to defend ourselves, the Second Amendment is quite straightforward: “The right of the people to keep and bear arms shall not be infringed.”

It’s often been said that the Second Amendment exists to defend all the rest, including the First. I couldn’t agree more….

Unfortunately, many politicians seem determined to directly infringe on our right to bear arms, despite the Second Amendment’s clear wording that it “shall not be infringed.”

President Biden recently announced several executive actions regarding gun control. He claimed that these actions wouldn’t infringe on the Second Amendment. But that’s false.

…“Shall not be infringed” could not be any plainer. If only President Biden could be forthcoming and realize that his actions are a direct infringement on our right to keep and bear arms [Gov. Kristi Noem, weekly hogwash, 2021.04.09].

It is Governor Noem’s explanation of constitutional rights that is false, not President Joe Biden’s proper application of executive authority to balance our rights with the common good.

The First Amendment does far more than the Second to actively, regularly protect all of our rights.

When I challenged Initiated Measure 24 and 2019 House Bill 1094 as unjust infringements of our Constitutional rights, I did not shout “Lock and load!” and stage an armed assault on the Capitol. I spoke up, in public, in the press, and in court. And I won: I secured the judicial overturning of those bad laws and defended the rights of more South Dakotans than have ever been  protected by any one person’s engagement in Second Amendment activity in this state.

Yet I won not because the First Amendment activities I was practicing and defending are absolute. Far from it. The very court rulings in my favor (SD Voice v. Noem I, SD Voice v. Noem II) noted that the First Amendment is not absolute and that the state may impose reasonable, narrowly tailored restrictions on free speech when the state can demonstrate some compelling interest in such restrictions. I didn’t beat Kristi Noem in court twice because our First Amendment rights can never be infringed; Noem lost because she couldn’t prove that the state had a compelling interest that justified restricting our First Amendment rights.

The text of the First Amendment doesn’t mention any ifs about compelling state interests—on face, the First Amendment seems as absolute as Noem claims the Second is:

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 [First Amendment, United States Constitution, adopted 1789.12.15].

Congress shall make no law… abridging the freedom of speech, or of the press…. [T]he right of the people to keep and bear arms, shall not be infringed…. Those lines sound absolute, but only to superficial prooftexters like Governor Noem. Anyone who paid attention in high school civics understands that freedoms and rights exist solely in the context of a community, and in that community context, freedoms and rights are inherently defined, i.e., not infinite, but finite, bounded, limited to prevent their unfettered exercise by one party from preventing other parties from exercising their own due rights.

In community, we are all bubbles, and we may expand until we bump into all the other bubbles in our community. Any bubble that tries expanding beyond that limit starts popping other bubbles… and we can’t have that.

Governor Noem invokes this inherent limitation on rights when it suits her interests. During the first two Legislative Sessions of her gubernatoriate, Noem signed laws against “riot-boosting” conceived to restrict free speech for the sake of protecting oil pipelines, which she claims serve the common good. The first law failed in court; the second remains judicially untested. But the Governor’s legal assaults on pipeline protestors show that even she has some conception that rights are not absolute.

One of the swiftest ways to get my dander up is to tell me I can’t write something on my blog. But even I recognize that I cannot say whatever words I want whenever and wherever I want. Nor can I carry whatever guns I want whenever and wherever I want.

I recognize that speech leading to riot or insurrection should be against the law, even though the First Amendment contains the phrase shall make no law. I recognize that bearing arms in ways that cause undue death and destruction should be against the law, even though the Second Amendment contains the phrase shall not be infringed. To claim otherwise, to prooftext the Bill of Rights to avoid hard policy debate and stoke convenient partisan obstructionism, reveals a cheap and shallow intellect incapable of the nuanced and complicated balancing of rights, responsibilities, and needs required of every lawmaker in a civil society.

Related Reading: Tom Lawrence paid attention in high school civics. He notes this morning that Governor Noem omits the part about the “well-regulated militia” from her screed. The authors of the Second Amendment themselves recognized the necessarily limited nature of the right to bar arms.


  1. Eve Fisher 2021-04-11

    2nd Amendment advocates consistently argue that there can be no infringement on gun ownership because gun ownership is a right explicitly stated in the 2nd Amendment. Meanwhile, many of the same people say that voting is a privilege, not a right. This is wrong. Voting is a right explicitly stated in the 15th, 19th, 24th and 26th Amendments.
    The explicit statement of the right to vote for every American citizen is made in four separate Amendments, showing how important that right is, was, and has been to our country. The right to own a gun is made in only one. (And I have a sneaking suspicion that it was a throwaway line.) And many of the same people want to use their 2nd Amendment rights to get rid of other people’s 1st, 15th, 19th, 24th, 26th Amendment rights, as we saw on January 6th. This has got to stop and be stopped.

  2. o 2021-04-11

    Eve, I agree. The Second Amendment INFRINGES on all other freedoms; it does not enhance them. As the Capitol insurrection shows, the fanatic, absolutism of the Right’s gun ownership (and the neglect to keep militias well-regulated) puts this nation in a state of constant risk of violent overthrow. The Right did not celebrate the Black Panthers being armed when protesting and asking for redress of grievances.

    This is all about power for the Right. If fair elections won’t keep their power, then rigging the system will. If rigging the system will not keep power, then suppression of opposing votes will. And if all else fails, armed overthrow will.

    I unfortunately have to disagree about he explicit right to vote. Although implied, the Constitution set up all kinds of mechanisms to NOT recognize the right or the validity of the individual’s vote: the Electoral College, the indirect election of Senators . . . The tendencies of the Founding Fathers to be elitists peeks through this omission. Our own legislature has been very open about involving the “Republic not Democracy” philosophy in leadership dismissing the will if the people demonstrated through direct vote.

  3. David Newquist 2021-04-11

    I assume that as a journalist, Tom Lawrence notes, as I do, that when people such as Noem cite the Second Amendment as conferring the right to bear arms, they always skip over the conditional clause: “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.”

  4. Mark Anderson 2021-04-11

    Come on everyone, Lil kristi had a bad transgender time of it and she has to regroup. You’ve got to expect her to red meat it the rest of her term, she has bigger fish to fry you know.

  5. Mark Anderson 2021-04-11

    You have to expect her to be unhinged.

  6. bearcreekbat 2021-04-11

    The incredibly weird self-contradictory argument that the 2nd Amendment protects the right to bear arms so people can rise up against an oppressive government shows just how phony such an argument really is. Rising up against the government means destroying that existing governmental body and implementing a new government. Since the current governmental body is premised solely on the US Constitution, destroying that government necessarily means rejecting the current US Constitution and substituting a new Constitution, or something similar, in its place. And destroying the existing Constitution means destroying all of it, including each Amendment, so, by definition, the 2nd Amendment necessarily would be trashed along with the rest of it.

    To think that anyone would adopt a Constitutional provision for the violent self destruction of that very Constitution and the government it has created surely is the epitome of absurdity. But, I suppose, this is a perfect fit for Trumpists who have bought into his brand of nonsensical lies and self-contradictory grifting claims. Guns might be useful for murdering public officials that Noem disagrees with and violently overthrowing our government if Noem doesn’t think it is operating the way she would like, but such actions are not even close to being either lawful or permitted by any provision of the existing US Constitution, especially the 2nd Amendment.

  7. Jenny 2021-04-11

    There is just too much money to be made in the gun industry.
    Mass shootings are good for business. Americans were bred to love their guns thus the term ammosexuality. Its a sick country we live in.

  8. Donald Pay 2021-04-11

    Kind of interesting, and a reason why Noem’s civics curriculum is needed. What is meant by “the people?” Slaves had no right to own and bear arms at the time the Second Amendment was written. Throughout history, even after slavery ended, blacks had very limited rights to gun ownership, and it was infringed all the time. The rights of Indians to own weapons was certainly constrained. One need only consider that the Wounded Knee massacre happened, according to the white interpretation, as a result of infringing on the Second Amendment rights of Indians. Even today the right to bear arms is limited to white people. A black person with a gun is target practice for police. Hell, a black person only has to have a gun in the imagination of the policeman, and he’s dead. Can you imagine if Nick Tilsen had shown up at the fireworks protest with a weapon? Noem’s goons would have wasted no time stripping him of his “right to bear arms,” and probably his right to life.

    The truth is when the American Indian Movement took up arms against the US Government, a lot of white people got their undies in a bundle. I guess the right to insurrection is limited to white people.

  9. David Newquist 2021-04-11

    Thanks. Duly noted.

  10. o 2021-04-11

    Again, the history of the Second Amendment is that it was needed by the US to have a well-armed (and well-regulated) militia. The US did not provide guns to soldiers until the Civil War; when the Second Amendment was written, the US needed troops to bring their own guns to fight FOR this nation. The Second Amendment was to guarantee the might OF the government not check the government.

    That the Second Amendment is being used as a shield to protect and promote insurrection and mass executions is an abomination of the Constitution and a civil society.

  11. Richard Schriever 2021-04-11

    “peaceably” is the one word that empowers governmental limits on 1st amendment rights.

    “regulated” is the one word that empowers governmental limits on 2nd amendment rights.

    Amateur interpreters of the constitution ignore those two words at their peril.

  12. Porter Lansing 2021-04-11

    Still waiting for Obama to come for my guns.
    I put out cookies and milk, every morning.
    As An Aside: Barack and Springsteen skit was outstanding on SNL, last night.

  13. Cory Allen Heidelberger Post author | 2021-04-12

    BCB makes me think we can accurately describe the Second Amendment as interpreted by Kristi Noem and her followers as the Constitution’s self-destruct clause.

  14. marvin kammerer 2021-04-12

    gun ownership is a religion in SD.& most other states.reason and intelellectual thinking has no business in the closet of gun nuts who propose that they of all people will rush out to defend the freedom of us in spite of what that means, it certainly doesn’t mean protecting the rights guarantee by the constitution. it mostly means going to any store that sells amunition or weapons, especially ones that take big clips,(weapons of war)as their credit card will allow.this tells the story of empty shelves.i would further suggest that unless they were grunts in fire fights they most likely would be out of sight when the rest of us would be out front defrnding the rights of all of us.

  15. o 2021-04-12

    In a time of ultra-division, it is not enough for the Right to say that the Left “is coming for our guns,” it is also required the the Right be fanatic in gun ownership/accumulation/worship. It becomes a tribal identity to get as far from how the rival is painted. How much of this is really pro-Second Amendment and how much his Own-the-Libbies?

    Unfortunately, the Right seem unfazed by how their rhetoric has real-world implications. More and more this is getting to be the bombast of the Right that directly leads to the real harm of others.

  16. Mark Anderson 2021-04-12

    You know a couple years back when we were visiting in Aberdeen I bought some beer at Kessler’s and took some pictures for friends back in Florida, showing you could also buy your ammunition when picking up your liquor.

  17. jake 2021-04-12

    Marvin, I think you are quite correct on the point that MOST of these ‘wanna-be-Rambos’ clad in camo would be out of sight when push came to shove.
    They have succumbed to the religion of “Meism”, that it is all about them and their wants-not society in general. Had they only had the opportunity to come up against a nail-tough sheriff or marshal in charge of towns/cities in the late 1800’s or early 1900’s and told him ‘you’ll have to pry it out of my cold, dead hands!”

  18. Porter Lansing 2021-04-13

    Regulating 2nd Amendment parameters:

    Colorado State lawmakers sent Gov. Jared Polis two gun bills that he intends to sign. The bills require gun owners to use a safe or trigger lock for storage and report to police if a firearm is lost or stolen. (Colorado Sun)

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