Josh's Weblog: DOJ Declares 2nd Amendment Protects an “Individual Right”

DOJ Declares 2nd Amendment Protects an “Individual Right”

Tonight there's been some excitement over this article, which, while dated August 24th, 2004 has escaped noticed by everyone until now. Apparently there's been some curiosity in the Department of Justice on “whether the second amendment secures an individual right.“ We can jump straight to the conclusion of this 93-page treatise:

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment's operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688–1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.

This has drawn comments from the Second Amendment Foundation (SAF), as you might imagine:

“This report confirms what the gun rights community has known to be true for many years,” said SAF founder Alan M. Gottlieb. “The right to keep and bear arms is a right to be enjoyed and exercised by every citizen. Henceforth, all Americans will know that the claim by anti-gunners that the Amendment only protects some mythical right of the states to form militias and National Guard units is an outright fraud.”

I have to agree. For too long have there been arguments about this amendment being outdated, or only to state militias as Mr. Gottlieb refers, and that us regular proles have no rights to effective tools of self-defense. Such arguments have always irritated me. Isn't (most of) our background in English Common Law evidence enough? The Castle Doctrine, for example, implies to me that not only is a man's home his castle, that his possessions are his to use as he sees fit (unless he bothers someone else), and his work is his to wreak, and he should have the best tools with which to protect those things that are his.

Too often this goes back to natural law. I think it's simple ethics.

It's a pity that this study did not go further to investigate the scope of the second amendment. For example, I believe that it should extend to whatever a modern, but solitary, soldier might need to use in the furtherance of his duties. The ownership (and knowledge) of the modern M-16/M-4 (not the nerfed “civilian” version, the AR-15) should be sacrosanct. Yeah, that means I think regular people should know how to handle select-fire weapons. Why not? Our current enemies do.

Also, It should extend to whatever is appropriate to personal self-defense. The modern handgun fits this. The modern shotgun fits this mold for defense of the home as well.

I wonder what will happen next?

Josh Poulson

Posted Friday, Dec 17 2004 09:13 PM