Home Forums Miscellaneous Topics Second Amendment Justice Dept Memo on the 2nd Amendment

http://www.thenewamerican.com/artman/publish/article_1363.shtml

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

That seems all well and good but unless SCOTUS says so - it seems like it doesn't matter what anyone else things these days. Everything is refereed to them it seems.

Gunny-

Here is futher discussion on the subject on this board.

web page

Bend,
thanks for the link. I did a little looking before I posted the article, but obviously not enough. I was slightly preoccupied when the original discussion happened.

Teal,
the only reason the Supreme Court gets involved is because the Congress allows them too. I'm sure you know what the Court's jurisdiction is, as well as the Congress' ability to make exceptions and regulations on the cases it hears.

Bob

Gunny,

Actually, the only reason that the USDOJ had to even write this memo ("white paper") is because Congress keeps meddling with the 2nd Amendment. If Congress would stay the heck out of the 2nd, and someone would make a legitimate argument to the SCOTUS that the 2nd Amendment, like the 1st, the 4th, the 5th, and the 6th, were foisted on the various states by the 14th, then we'd be a lot further along toward having the right to keep and bear.

Having Condi appoint a couple justices, or draft policy from the Oval Office, along her view that you can't pick and choose from the Bill of Rights might help in this regard. Otherwise, I don't see any help from Congress or the President in this matter.

Oh, BTW - the U.S. A. G. whose office drafted that is gone. His replacement has publicly stated, during his confirmation hearings I think, that he thinks we need MORE and MORE STRICT gun-control laws.

VANimrod,
Agreed on the issue re the 2nd and Congress, but I was responding to Teal's more general comment that "everything is referred to them it seems." In that regard we are stuck with the current issue until we get the guts to demand our rights back.

The last thing we need in this issue, or any Constitutional issue, is "activist judges", regardless of who appoints them. What we need are leaders in Congress, and in the Justice Dept, who understand who the rights belong to, who powers belong to, the difference, and whose duty it is to protect those rights

Personally the DOJ has flipped on this issue so often I have trouble keeping track....

Bob

BTW, personally I can't stand Condoliza Rice and wish she would just disappear.

2nd BTW.... Just read your post in the "McCain Sellout" thread... You and I are on the exact same page.

Good Luck to you,
Bob

Yep, to all of the above. And, thanks. I never met a Gunny I didn't like... well, except one <img src="/ubbthreads/images/graemlins/wink.gif" alt="" />

MOS?

0352

Started out as an 0351, of course now I'm an 0369.

In between I've filled the shoes of an 0311, 0331, 0341, and 0302.

Bob

Hmmmm, anti-armor. Love bustin' tanks, huh? Kinda figured you for a grunt.

Gunny - I am with you - but everyone always talks about "gettin the courage to take our rights and freedoms back" I just don't see it happening. I don't know of anyone doing it - sure we vote for "our guy" in November but other than that and a yearly 35.00 check to the NRA or other such organization - nothing happens - the closest thing has been the Minutemen. I agree with them, support them and if I coulda gotten away with it, I woulda taken leave to help. But that project is gonna end up a cluster. I think, unless they are VERY careful, its gonna cause some harm - the antis can and will use that issue to push more anti-gun legislation - forget the fact that its an immigration issue.

Too many people out there who really have no clue as to how to react in a high stress situation that may just shoot someone or get shot themselves. Incidences were low due to a temporary inconvienience to illegal smugglers, drug runners and the Mexican military - they tolerated it but what happens when it becomes almost a year round thing from San Diego to Brownsville? You are gonna have border skirmishes and the mexican military don't like a fair fight. (Read a book on the BP - talks of regular occurances of our Fed agents being shot at, chased, ect by uniformed regular Mexican Military - their typical response is we were lost)

If it was up to me and it got to that point- I say let civs call in tac airstrikes on a cb and lets get it over with.

I always had a feeling that SCOTUS typicaly hides from real hot button issues. The simply refuse to hear the case --- that way they don't "rock the boat". Oh sure you had some big ones, Brown v. Board of Education, Miranda, Roe v. Wade, but unless there is something pretty major I don't see SCOTUS touching the 2nd ammendment in the way it should be touched - that is all gun control is illegal, and the 2nd applies to individual rights.

JMHO

Gunny-

"I did a little looking before I posted the article, but obviously not enough. I was slightly preoccupied when the original discussion happened."

No harm, no foul, no sweat! Thanks for the service.

Teal,
I think there are a lot of folks who have the courage to demand their rights, and they are doing something about it. but most of it is "legal" and "within the current system", as it should be, and that is why it isn't too obvious. A letter writing campaign asking federal senators to vote NO on the Law of the Sea Treaty for one, the push in WI to at least allow LEOs to carry firearms off duty (or after retirement), an incremental step in the (so far) failed attempt to get CCW passed in WI, for another. Similarly, the over-democratization of our system in the past 60 years has made it even harder for our elected representatives to not respond to what the larger constituency wants, even if it's bad for us or the system.

The problem is that most of the non-mainstream groups are as divided as the 2nd Amendment support groups or insurgent groups in Iraq.... They spend more time worried about what would happen if another group's agenda came to the forefront and sniping each other than trying to eliminate the stranglehold the existing groups have on us. Coupled with the establishment's obvious power and ability to project said you have a no-win situation for true classic liberalism.

Government (regardless of who it represents) is not in the business of issue resolution, rather it is the business of issue maintenance. It is much easier to show the need of large government if large issues remain. Governments perpetuate themselves, and they can't show value to the constiuent without showing conflict, the most basic need for their existence.

Imangine Roe v. Wade if the court had simply said that it was a State's Rights Issue and the Federal Gov't would not get involved. Could the Congress block advertizing INTO a state that did not allow abortions on grounds that it violated interstate commerce? Truly I don't know.

Many here chide Barak and his Libertarian Utopia, but imagine the size of government if the vast majority of people simply abided by basic rules of law in regard to life (and limb), property, and contract, and government's main role was to support those laws and punish those who failed to abide by them.

Thanks for the discussion,
Bob

Gunny-

"... the push in WI to at least allow LEOs to carry firearms off duty (or after retirement), ..."

For LEO's to carry off duty is already Federal law, even after retirement. WI has nothing to say about it!

See the below website and read the comments:
web page

Bend,
If WI can block this somehow they will...

Our state legislature is failing to comply by simply doing nothing. We are 6 months into this and I wonder how many "permits" have been issued.

http://hosted.ap.org/dynamic/stories/W/W...-05-19-19-22-07

That being said I don't like the idea of the Fed having to tell my state to allow citizens, much less LEOs (retired or not), that they can carry weapons, concealed or not. We should be able to work this situation out on our own, within our own system.

Bob

Seems like there is a whole lot of waffling going on in WI, both with the legislature and the courts. Good luck.

WI Bill of Rights and court cases:

Article I, �25
Right to keep and bear arms. Section 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998]

Article I, �25 - ANNOT.
The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350.

Article I, �25 - ANNOT.
The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

Article I, �25 - ANNOT.
A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state's interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

Thanks,
We are going to need all the luck we can get, WI does go to the extremes on the issue of firearms.

http://www.lcav.org/states/wisconsin.asp

Bob

Gunny- I agree with you. I basicaly grew up in WI from the age of 4 to about 22 then moved to MI as my deer license was then cheeper <img src="/ubbthreads/images/graemlins/wink.gif" alt="" />

I think WI has an awesome history of the outdoors and personal responsability - why Doyle is in office is beyond me.

Whats the current sit-rep on him leaving and say Mark Green becoming gov? - I woked his initial campaign a little and was mucho impressed with the man - he didn't treat us like crap and all we did was canvas neighborhoods asking to put up signs.