MMMMMM
12-21-2004, 06:21 PM
This should be some fine holiday reading for "Sir" Andy Fox;-)
http://www.usdoj.gov/olc/secondamendment2.htm
"WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
(the following topics are discussed on the above linked page, but to copy and paste the whole would be too lengthy)
Introduction
1. The Unsettled Legal Landscape
2. Textual and Structural Analysis
1. "The Right of the People"
2. "To Keep and Bear Arms"
3. "A Well Regulated Militia, being Necessary to the Security of a Free State"
4. Structural Considerations: The Bill of Rights and the Militia Powers
3. The Original Understanding of the Right to Keep and Bear Arms
1. The Right Inherited from England
2. The Right in America before the Framing
3. The Development of the Second Amendment
4. The Early Interpretations
1. The First Commentators
2. The First Cases
3. Reconstruction
4. Beyond Reconstruction
Conclusion
Introduction
The Second Amendment of the Constitution provides: "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." You have asked for the opinion of this Office on one aspect of the right secured by this Amendment. Specifically, you have asked us to address 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. This memorandum memorializes and expands upon advice that this Office provided to you on this question in 2001
As relevant to the question addressed herein, courts and commentators have relied on three different interpretations of the Second Amendment. Under the "individual right" view, the Second Amendment secures to individuals a personal right to keep and to bear arms, whether or not they are members of any militia or engaged in military service or training. According to this view, individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. (1) Under the "collective right" view, the Second Amendment is a federalism provision that provides to States a prerogative to establish and maintain armed and organized militia units akin to the National Guard, and only States may assert this prerogative. (2) Finally, there is a range of intermediate views according to which the Amendment secures a right only to select persons to keep and bear arms in connection with their service in an organized state militia such as the National Guard. Under one typical formulation, individuals may keep arms only if they are "members of a functioning, organized state militia" and the State has not provided the necessary arms, and they may bear arms only "while and as a part of actively participating in" that militia's activities. (3) In essence, such a view would allow a private cause of action (or defense) to some persons to vindicate a State's power to establish and maintain an armed and organized militia such as the National Guard. (4) We therefore label this group of intermediate positions the "quasi-collective right" view.
The Supreme Court has not decided among these three potential interpretations, and the federal circuits are split. The Executive Branch has taken different views over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you endorsed the view that the Second Amendment protects a "'right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms'" but allows for "reasonable restrictions" designed "to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse." (5)
As developed in the analysis below, we conclude 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. Our conclusion is based 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. Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right. We do not consider the substance of that right, including its contours or the nature or type of governmental interests that would justify restrictions on its exercise, and nothing in this memorandum is intended to address or call into question the constitutionality, under the Second Amendment, of any particular limitations on owning, carrying, or using firearms.
This memorandum proceeds in four parts. Part I addresses the current unsettled state of the law in this area. Part II demonstrates that the text and structure of the Constitution support the individual-right view of the Second Amendment. Part III shows why this view finds further support in the history that informed the understanding of the Second Amendment as it was written and ratified. Finally, Part IV examines the views of commentators and courts closest to the Second Amendment's adoption, which reflect an individual-right view, and then concludes by describing how the modern alternative views of the Second Amendment took hold in the early twentieth century. ..."
(continued on web page linked above)
http://www.usdoj.gov/olc/secondamendment2.htm
"WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
(the following topics are discussed on the above linked page, but to copy and paste the whole would be too lengthy)
Introduction
1. The Unsettled Legal Landscape
2. Textual and Structural Analysis
1. "The Right of the People"
2. "To Keep and Bear Arms"
3. "A Well Regulated Militia, being Necessary to the Security of a Free State"
4. Structural Considerations: The Bill of Rights and the Militia Powers
3. The Original Understanding of the Right to Keep and Bear Arms
1. The Right Inherited from England
2. The Right in America before the Framing
3. The Development of the Second Amendment
4. The Early Interpretations
1. The First Commentators
2. The First Cases
3. Reconstruction
4. Beyond Reconstruction
Conclusion
Introduction
The Second Amendment of the Constitution provides: "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." You have asked for the opinion of this Office on one aspect of the right secured by this Amendment. Specifically, you have asked us to address 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. This memorandum memorializes and expands upon advice that this Office provided to you on this question in 2001
As relevant to the question addressed herein, courts and commentators have relied on three different interpretations of the Second Amendment. Under the "individual right" view, the Second Amendment secures to individuals a personal right to keep and to bear arms, whether or not they are members of any militia or engaged in military service or training. According to this view, individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. (1) Under the "collective right" view, the Second Amendment is a federalism provision that provides to States a prerogative to establish and maintain armed and organized militia units akin to the National Guard, and only States may assert this prerogative. (2) Finally, there is a range of intermediate views according to which the Amendment secures a right only to select persons to keep and bear arms in connection with their service in an organized state militia such as the National Guard. Under one typical formulation, individuals may keep arms only if they are "members of a functioning, organized state militia" and the State has not provided the necessary arms, and they may bear arms only "while and as a part of actively participating in" that militia's activities. (3) In essence, such a view would allow a private cause of action (or defense) to some persons to vindicate a State's power to establish and maintain an armed and organized militia such as the National Guard. (4) We therefore label this group of intermediate positions the "quasi-collective right" view.
The Supreme Court has not decided among these three potential interpretations, and the federal circuits are split. The Executive Branch has taken different views over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you endorsed the view that the Second Amendment protects a "'right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms'" but allows for "reasonable restrictions" designed "to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse." (5)
As developed in the analysis below, we conclude 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. Our conclusion is based 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. Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right. We do not consider the substance of that right, including its contours or the nature or type of governmental interests that would justify restrictions on its exercise, and nothing in this memorandum is intended to address or call into question the constitutionality, under the Second Amendment, of any particular limitations on owning, carrying, or using firearms.
This memorandum proceeds in four parts. Part I addresses the current unsettled state of the law in this area. Part II demonstrates that the text and structure of the Constitution support the individual-right view of the Second Amendment. Part III shows why this view finds further support in the history that informed the understanding of the Second Amendment as it was written and ratified. Finally, Part IV examines the views of commentators and courts closest to the Second Amendment's adoption, which reflect an individual-right view, and then concludes by describing how the modern alternative views of the Second Amendment took hold in the early twentieth century. ..."
(continued on web page linked above)