Second Amendment Solidified: The Department of Justice Issued an Extensive Report That Very Clearly and Definitely Shows That the Second Amendment Was Intended to Protect an Individual Right

By Williamsen, Kurt | The New American, May 16, 2005 | Go to article overview

Second Amendment Solidified: The Department of Justice Issued an Extensive Report That Very Clearly and Definitely Shows That the Second Amendment Was Intended to Protect an Individual Right


Williamsen, Kurt, The New American


The U.S. Department of Justice's Office of Legal Counsel of the United States was charged by the attorney general with addressing "the question whether the fight secured by the Second Amendment belongs only to the states, only to persons serving in state-organized militia units like the National Guard, or to individuals generally." The answer was definitive: "The Second Amendment secures a right of individuals generally, not a fight of states or a right restricted to persons serving in militias."

The 102-page memorandum--made public on the Department of Justice's website on December 17, 2004--is perhaps the most exhaustive research ever done on this contentious topic and includes a 42-page bibliography. Though the report does not address the "constitutionality, under the Second Amendment, of any particular limitations on owning, carrying, or using firearms," it does comment on the fact that the "alternative views" of the Second Amendment are relatively modern constructs.

Because in recent history, courts (and various heads of the Justice Department) have reversed themselves in their interpretation of the Second Amendment, first deciding that it was an individual right and then deciding that it was a "collective" or state's right, and then back again, the Office of Legal Counsel examined the "Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents, to discern its proper meaning."

The memorandum analyzes in depth each key phrase of the Second Amendment: "right of the people," "keep and bear arms," and "well regulated militia." Its analysis finds that in no way could the Second Amendment be properly construed to be anything other than a protection of an individual right.

In examining the word "right" as it is used in the Constitution, the Office of Legal Counsel (OLC) concluded that a right was something reserved to individuals. The OLC said that it is clear that whenever the word "right" is used in the Constitution, it means an individual right, saying, "not once does the Constitution confer a 'right' on any governmental entity, state or federal. Nor does it confer any 'right' restricted to persons in governmental service," meaning that the Second Amendment "right" is not restricted to people in active military service nor any other governmental service.

Also, when the word "right" is conjoined with the phrase "of the people," its meaning is very distinct. This phrase is used two other times in the Constitution, "and both times refers to a personal right, which belongs to individuals. The First Amendment secures 'the right of the people peaceably to assemble, and to petition the Government for redress of grievances,' and the Fourth safeguards '[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"

The OLC also concluded that the first four amendments to the Constitution were intended to be a subset of rights in the Bill of Rights, specifically containing rights that were reserved to individuals to possess and use certain property. This interpretation, according to the OLC--though somewhat erroneous because the Bill of Rights does not grant rights, but restrains government from violating them--makes sense in light of English law, from which the Founders drew much of their inspiration, and in light of the various colonial laws at the time.

English law allowed one to keep a gun "for the defence of his house and family." And even though game laws in place in England at the time prevented most people from using guns to hunt game, "in 1752 the Chief Justice of the King's Bench reaffirmed that it was 'not to be imagined' that Parliament in [the Game Act] had intended 'to disarm all the people of England.'" Also, Pennsylvania's Declaration of Rights of September 1776, which reflects the language of the other colonies' Declarations of Rights, makes clear that individuals have the right to keep arms: "'That people have a right to bear arms for the defence of themselves and the state; and as standing armies . …

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