The Right Coast

December 17, 2004
The Second Amendment
By Mike Rappaport

Eugene Volokh reports that the Office of Legal Counsel of the Justice Department (of which I was a member way back when) has issued an opinion adopting the individual right view of the Second Amendment. Thus, the Office concludes that the Amendment is about protecting an individual right to keep and bear arms rather than a right of the state militia.

Here is the concluding paragraph of the opinion:

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.
The document is dated August 24, 2004, so it is another reason for liberals to have disliked the Ashcroft Justice Department.