Gun ownership is an individual rightSunday, February 13, 2005
SUMMARY: Second Amendment turns out to be easier to understand than some people hoped.
Debate over gun ownership rights may never end in this country, but the argument certainly has quieted down.
That's the conclusion we draw from the fact that people have paid relatively little attention to an extraordinary legal memorandum written by top lawyers in the U.S. Justice Department and made public at the end of December. The 103-page memorandum dissects and analyzes the Second Amendment to the Constitution to build a convincing argument that the right to bear arms is an individual right, not a collective right.
This speaks to a decades-old debate stemming from the wording of the Second Amendment: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
There are two basic schools of thought about how to interpret that (at least to our ears) awkward syntax.
One interpretation is that states have the right to arm their well-regulated militias to provide for their security.
The other interpretation is that citizens have the right to own guns.
There's also a third interpretation that offers a convoluted right for select citizens involved in their state militia (National Guard) to own guns. In general, however, the debate revolves around the first two interpretations.
Advocates of strict gun control and those who'd even like to ban gun ownership cling to the first interpretation. If the right of gun ownership belongs to the state, then there's no constitutional problem with limiting or eliminating gun ownership by citizens. The U.S. Justice Department has, itself, used this interpretation in times past.
What's sometimes called the "collective-right" interpretation has been tossed around courthouses and other halls of government, but tens of millions of gun owners don't buy it. Why would the framers have said "the right of the people to keep and bear arms shall not be infringed" if it meant the state or its militia? What would a state right be doing stuck in among a list of individual rights: freedom of religion, freedom of speech, guarantee of due process and protections against unreasonable search and seizure and cruel or unusual punishment - to name a few?
This debate has simmered, sometimes to the boiling point for decades. Federal appeals courts have come up with three conflicting interpretations - the third being a hybrid of the two described above. The U.S. Supreme Court has dodged every modern opportunity to resolve the confusion. Amid the confusion, the Justice Department's clarifying efforts are helpful.
"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," conclude Steven G. Bradbury, Howard C. Nielson Jr. and C. Kevin Marshall, who are, respectively, principal deputy, deputy and acting deputy assistant attorneys general.
"The text of the Second Amendment," they find, "points to a personal right of individuals: 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."
What's more, they note that the reference to the well-regulated militia is a preface; the "operative clause" is the bit about the people's right to keep and bear arms. The memorandum walks readers through the wording to conclude, "The Amendment's prefatory clause, considered under proper rule of interpretation, could not negate the individual right recognized in the clear language of the operative clause."
Anyone with a serious interest in gun issues would find their analysis engaging. You can find it on the Internet at:
http://www.usdoj.gov/olc/secondamendment2.htm.
The lack of controversy springing from publication of this document is interesting. When then-Attorney General John Ashcroft acknowledged the private ownership right in a 2001 letter to the National Rifle Association, headline writers had to work overtime. Even more controversy erupted over a later Justice Department document that included two mere footnotes supporting the individual-right interpretation. This most recent document, however, may not be something the anti-gun crowd wants to call much attention to.
http://www.missoulian.com/articles/2005/02/13/opinion/opinion1.txt
