DOJ Memo: 2nd Amendment is Individual Right

DOJ Memo: 2nd Amendment is Individual Right
By Jeff Johnson CNSNews.com Senior Staff Writer December 21, 2004

(CNSNews.com) - The U.S. Department of Justice has declared that the Second Amendment explicitly recognizes the right of individual Americans to own and carry firearms. Gun rights advocates call the statement a "good first step" but cautioned that it is not the end of the gun control debate.

The "Memorandum Opinion for the Attorney General" released on the Internet last week is entitled "Whether the Second Amendment Secures an Individual Right."

The 103 page report, with 437 footnotes, concluded that, "... the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units."

That conclusion is based, according to the authors, "... on 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."

The Aug. 24 memorandum stated that it did not consider the "substance" of the individual right to own and carry firearms or the legitimacy of government attempts to limit the right. The document also declared that the authors were not calling into question the constitutionality of any particular limitations on owning, carrying or using firearms.

Joe Waldron, executive of the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), told Cybercast News Service that the memorandum is "a good start, a good first step.

"What this does," Waldron explained, "is it puts the federal government -- the U.S. Justice Department -- which is the nation's chief law enforcement agency, on record as recognizing that the Second Amendment, without question, is intended to apply to individuals and not to collective organizations such as the National Guard or any kind of lesser militia."

The memo does not protect individuals from being prosecuted under existing gun laws, Waldron acknowledged, but he said it does require a fundamental change in how the government approaches those cases.

"It changes the courts' view of the issue and it applies a stricter standard of scrutiny as to whether or not a given law does infringe on an individual's constitutional rights," Waldron said. "They have to look at it from a civil rights perspective now instead of just [whether] the individual violated a given law."

The Brady Center to Prevent Gun Violence did not return calls seeking comment on the Justice Department's determination, but the organization has spoken out against the "individual rights" interpretation of the Second Amendment frequently in the past, including in an amicus brief filed in federal court in 1999.

"The fact that militia members are no longer required to supply their own arms when reporting for service has depleted the Second Amendment of most of its vitality," the Brady Center stated. "And, in fact, the Second Amendment remains relevant today because the rights it protects are held by the National Guard."

Dennis Henigan, director of the Brady Center's Legal Action Project, also spoke against the "individual rights" interpretation of the Second Amendment at James Madison University in 2002.

"Both the language and history of the Second Amendment show that its subject matter was not individual rights," Henigan said, "but rather the distribution of military power in society between the states and the federal government."

The Brady Center's argument was rejected by the Justice Department.

"A 'right of the people' is ordinarily and most naturally a right of individuals, not of a State and not merely of those serving the State as militiamen. The phrase 'keep arms' at the time of the Founding usually indicated the private ownership and retention of arms by individuals as individuals, not the stockpiling of arms by a government or its soldiers, and the phrase certainly had that meaning when used in connection with a 'right of the people,'" the Justice Department report stated.

"Moreover, the Second Amendment appears in the Bill of Rights amid amendments securing numerous individual rights, a placement that makes it likely that the right of the people to keep and bear arms likewise belongs to individuals," the document continued.

Waldron expects the opinion to be introduced in support of the "individual rights" of gun owners in several cases currently working their way through the federal courts. His hope is that one of those cases will reach the Supreme Court.

"Is this the end, is this the Omega? Absolutely not," Waldron said. "The Omega will come when the Supreme Court begins to overturn selected gun control laws based on the fact that they do infringe upon the individual right protected in the Constitution."