DOJ Report confirms individual right to bear arms

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Not that it's news to anybody here, but the DOJ prepared a report for AG Ashcroft regarding the Second Amendment. It confirms his own opinion that the Second Amendment acknowledges an INDIVIDUAL right to bear arms.

Read it for yourself at: http://www.usdoj.gov/olc/2004opinions.htm

Not that facts ever stood in the way of a politician working a crowd....
 
I wish this would make a difference

but it has been easy to prove all along (RKBA) but getting a SCOTUS win is what we need.
 
This is good work. It is narrowly focused on one issue: is there an individual right to keep and bear arms, or not? Tailor made for submission to any federal court. Obviously, the substance is nothing new for 2A scholars, or even 2A scholar-wannabees (I include myself in that group), but what IS new is that it came out of the Executive Branch.

I can see various litigants submitting this memo as a piece of evidence. We have been handed, on a silver platter, the reasoning necessary to defeat the collectivist view of the 2A. Again, the substance isn't new, but the source sure is, and this cannot hurt us in any way and may help a great deal in the future. I eagerly await an analysis of this from someone like Stephen Halbrook, who knows the effect of stuff like this.

The fact that Sarah Brady, Ted Kennedy, Chuck the Schmuck, Feinswine and the rest of the statist, anti-gun cabal are probably popping Prozacs and blood pressure pills (and/or more scotch, in Fat Ted's case) right now simply warms the cockles of my heart.
 
This same view is also held in a special report prepared for Congress. I don't have the link to it because I'm not at home, but someone must have it.

As to this report, it's good BUT ... it stops short of addressing "reasonable restrictions." And it says that it stops short of that. So we have an individual right, but then we need to also show that any "reasonable restriction" (in the minds of legislators) is nonetheless an unconstitutional infringement.

To borrow an oft-used phrase, What part of "... shall not be infringed" don't they understand?
 
Perhaps we should point it out to the State Department; They've got a hole that it's just the right size to fill.

As I understand it, the current position of the Justice Department is that,

1. It's an individual right.

and,

2. Every gun control law every enacted, right upto and including D.C.'s complete ban, is perfectly constitutional.

You can't square that circle, but they want to.
 
I'm still plowing my way through this lengthy and sweet document, about 1/3rd done.

In addition to the usual points indicative of 2A as an individual right, they've also acknowledged that "bearing arms" does not exclusively mean bearing them in a militia/military context, and includes carrying them for personal defense. (!!!)


Whoever said this is a gift on a silver platter is absolutely right. All the necessary pieces are now on the table for The Big Win, and we're in better shape than we've been in since at least 1964. Now, we've just got to play our hand smart and cool, and get the ball across the finish line.
 
"Hmm the "essay" on the right to keep and bear arms is "under review" which can only be good, as the previous verison wasnt pro-gun."

Well, true, but it's been "under review" for something like a year now. A darned leasurely review, if you ask me. *I* think whoever's in charge of it has simply decided that, if they can't say anything bad about the 2nd amendment, they won't say anything at all.
 
You know, I've only read a bit of this memorandum and I like what I have read thus far.

Maybe President Bush and/or Attorney General John Ashcroft aren't so bad after all.

I almost cannot believe what I am reading.

I mean, I believe the content of what I'm reading, or rather, I know it to be true, but to think that this document has been produced by a branch of our Government is utterly amazing!

:D
 
I guess you haven't been around much lately. John Ashcroft is considered to be the devil incarnate by many here.
Click to expand...

Oh, I've been around. I'm one of the "many" to whom you refer.

From the Memorandum:

The Constitution confirms this meaning of "the people" as individuals by expressly distinguishing the "people" from the "States," using each word to refer to a distinct thing. Indeed, the Second Amendment itself refers separately to "the people" and the "State." And the difference is firmly established by the Tenth Amendment, which distinguishes between the powers reserved "to the States" and those reserved "to the people." The "people" are the individuals who compose the States, distinct from - and bearing their federal "rights" apart from - those entities. (42)
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(emphasis added)

That is simply beautiful.
 
lip service n. Insincere agreement or allegiance; hypocritical respect.

–The American Heritage Dictionary, 3rd ed., 1994


Until they do otherwise.

~G. Fink
 
Eugene Volokh's comments:

The Justice Department's Office of Legal Counsel has taken the view that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." The document is dated Aug. 24, 2004, but it has apparently just been put on the Web site very recently. The opinion http://www.usdoj.gov/olc/secondamendment2.htm) is long and detailed, and I suspect will be quite influential -- OLC opinions tend to be. I also hope it gets some media attention: Certainly this sort of reasoned opinion by the Justice Department office charged with opining on such questions ought to be pretty newsworthy.
 
I'm halfway done reading it and it looks VERY solidly put together. It has a great analysis of english legal history before the revolution and trends in 2nd amendment jurisprudence during the 1800 and focuses on the changes before and immediately after the civil war.

I'm very impressed by this document's thoroughness. It is very well reasoned and informative. It raises a lot of points and brings up a lot of cases I had completely forgotten about.
 
I have printed it out and going to study it tonight. I looks good at first glance. ABout time.
 
One thing that must be realized is that this document is, in more ways than one, a policy statement by the Bush administration. As such, the document is distinctly biased. It (the document) has raised my opinion of Bush in general.

This policy statement is one of the most scholarly treatments of the subject matter that I have seen in a long while. Enough so, that even Eugene Volokh was impressed:
The Justice Department's Office of Legal Counsel has taken the view that "[t]he Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias." The document is dated Aug. 24, 2004, but it has apparently just been put on the Web site very recently. The opinion is long and detailed, and I suspect will be quite influential -- OLC opinions tend to be. I also hope it gets some media attention: Certainly this sort of reasoned opinion by the Justice Department office charged with opining on such questions ought to be pretty newsworthy.
Click to expand...
Regardless of any bias that it may have, I suspect that this paper will be used in the near future as an argument to the courts.

The central question, I believe, is whether or not this policy will last beyond 2008. Beyond that, there are a myriad of questions. Only one of which involve just what regulation is necessary and prudent as regards the phrase, "shall not be infringed." The opinion quite neatly avoids anything other than the matter of the Second being an individual right.
 
"Regardless of any bias that it may have, I suspect that this paper will be used in the near future as an argument to the courts."

Probably in an amicus brief, arguing against the Justice Department, if Justice Department behavior over the last four years is any indication.

I'm curious about the timing of this. It was written months ago, why does it appear now? Looks to me like an effort on Ashcroft's part to prevent the incoming AG from reverting to past idiocy on the subject.
 
I will feel better when the purpose of the 2A is bluntly acknowledged. Even my Congressman, exceptionally good about support of RKBA, refers to gun ownership in terms of hunting and self defense. Until it is politically correct to refer to the 2A in terms of keeping the government in check and therefore justifying my ownership of militarily competitive weapons, I won't be satisfied. The problem is the advent of police forces and the assumption that they should never be outgunned. Citizens rights are conveniently overlooked to make that work.
 
Finished reading it last night. Scweeet! Talk about a Christmas present from the POTUS!

This document bluntly acknowledges many things regarding 2A:

-That the right to keep and bear arms is an individual one,

-The to keep means to personally own, and have at one's residence

-That to bear means to carry, and that bearing arms is not exclusive to the military context

-That the right is not conditioned upon actual military/militia/state guard service.

(Sidebar: IMO, too many 2A advocates have pandered to fraudulent 20th century district court rulings, trying to secure their RKBA by associating themselves with militia units)

-The the purpose of 2A is many fold:
-To provide for the militarily useful armament of and wide dissemination of military knowledge of the citizenry at large
-To provide for the personal defense of the people
-As a side effect, protect the K&B of arms for private lawful purposes
-To protect the "essential nature of a free state", not merely the security of the state:

"....But the security of a free State was not just these things. It also was understood to include the security of freedom in a state. Thus, while Blackstone recognized the individual liberty of the press as "essential to the
nature of a free state," pre-1787 state constitutions described the same right as "essential to the security of freedom in a state." "

And so on and so forth.

The document really is quite focused on whether the right is individual or not, and while it stays away from issues of scope, it hints quite broadly:

It discusses at length England's "game laws", bluntly pointing out that they were backdoor civilian disarmament initiatives, and places 2A firmly in the context of being a preventative measure to such things.

It hints that the category of arms protected are quite broad, primarily concerned with a soldier's individual military weapons at the core, and hunting/sporting weapons at the periphery.

It hints pretty firmly that 2A is intended to apply to the states, but leaves open the question of the scope of regulatory powers. At minimum, it acknowledges the powers of states to regulate concealed carry, but does not acknowledge the powers of states to prohibit carry in general. IIRC, there were several sections that directly rejected the mechanism of prohibition via regulation.

IMO, serious defenders of 2A need to read and be familiar with this document, in addition to the 1982 Senate report.
 
I have read about half so far and it is almost as if all the arguments I've read in favor of the individual-right view (and then some) have been combined into one very well researched and referenced document.

I do not believe it is as biased as some say because Amendment II is a guarentee of an individual-right and as such, the vast majority of evidence is going to support that interpretation. To attempt to give a counter argument for every argument in favor of the individual-right view would be the biased approach, IMO.

To me, the disturbing part is how the entire syntax of Amendment II has been broken down... all that is except "...shall not be infringed." And so the question of constitutional limits on infringements is still wide open, although perhaps slighty narrower.
 
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