Second Amendment Solidified (Re:USDOJ Report)

Second Amendment Solidified
by Kurt Williamsen
May 16, 2005

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.

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 right 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 right 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 … are dangerous to liberty, they ought not be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."

In analyzing the section of the Second Amendment that states, "A well regulated Militia, being necessary to the security of a free State," the OLC shows that this wording was never intended to mean that only people in an organized military group have the right to keep and bear arms. In making its case, the OLC made several points: the term "militia" at the time of the Founding was "the entire population of able-bodied male citizens"; a preface to an amendment, of which this wording is an example, cannot logically be interpreted to take away the right that is protected by the Amendment; and the Second Amendment was meant to secure people in their right to possess guns for individual self-defense.

In refuting the liberal-activist idea that the words "a well regulated Militia" in the Second Amendment are meant to confine the "right" to people in the regular military, the OLC notes that what this section of the amendment actually does, if it's interpreted as it would have been in the days of the Founding, is to justify the necessity of arming the populace-at-large. As correctly interpreted, this section of the Second Amendment essentially states that in order for states to be able to create a well-regulated militia, should the necessity arise, and for the "free State" that it helps to secure, citizens should be armed so that they become sufficiently familiar with firearms and capable in their use.

At the time of the drafting of the Constitution, the word "militia" referred to "all able-bodied men." A smaller group of better-trained professional soldiers was called a "select militia" or a "select corps." In fact, because the militia was considered to be all able-bodied men "two months after the Second Amendment was officially ratified...," the Militia Act required white male citizens between the ages of 18 and 45 to be "enrolled in the militia," and "each enrolled citizen was required to provide his own arms — 'a good musket or firelock' or 'a good rifle.'"

This view of the Second Amendment is further solidified when one realizes the absurdity of trying to assert that the preface to the amendment takes away the freedom protected by the amendment — and that is precisely what liberal activists are asserting. A preface, as it was used in the Constitution, was given to explain why the Founding Fathers thought that that particular portion of the Constitution was necessary (in this case, the preface explains why the individual right to own guns was necessary).

To clarify the point, the OLC points to Article I, Section 8, Clause 16 of the Constitution, empowering Congress to "provide for organizing, arming, and disciplining the Militia." When that article had reached its final form, "George Mason proposed 'to preface' it with the phrase, 'And that the liberties of the people may be better secured against the danger of' standing armies. Madison spoke in favor, because the preface would 'discountenance' a peacetime army while 'not restrain[ing] Congress from establishing'" one.

Finally, this interpretation of the Second Amendment becomes extremely grounded when one grasps that the Second Amendment was largely instituted to allow individuals to protect themselves: "Many early state constitutions, including some written before the Founding … declared the Bill of Rights ratified,... protected an individual right to 'bear arms' in 'defense of himself and the State' or in 'defense of themselves and the State,' indicating that a person might be said to 'bear arms' in self-defense."

In short, the modern twisted translation of the Second Amendment by liberal activists doesn't even resemble the protection built into the Bill of Rights whereby the government is restrained from violating our God-given right to individual self-defense.

To view the full text of the Department of Justice memorandum, go to www.usdoj.gov/olc/secondamendment2.htm

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.