Updated: 01-07-16
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DOJ Opinion: The Second Amendment secures a right of individuals generally.
Earlier this year a number of sites have reported the U.S. Department of Justice Report directed to the United States Attorney General, which states that the Second Amendment grants an individual right to keep and bear arms. Prepared by various deputy attorney generals named at its conclusion, the Memorandum Opinion addresses the important issue of whether the Second Amendment secures an individual right. In its 62 page report with 41 pages of citations, the conclusion reached was 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 report appears to embrace every major source covering the 2nd Amendment, including the original and correct understanding of the “individual right” to keep and bear arms as known to the Founding Fathers of the Constitution. It references the writings of Madison, Jefferson and Hamilton, to name a few, and scholarly treatises by leading commentators such as St. George Tucker, William Rawle, Joseph Story, and others.
After addressing such topics as the right inherited from England, the right in America before the framing, and the development of the Second Amendment with interpretations by the early commentators noted above, it moves forward to commentaries such as those of  Thomas Cooley, the leading post-Civil War constitutional scholar, and then to other works of 19th and 20th century constitutional scholars, including treatises, law review articles and texts written by some of the leading authorities on the Second Amendment.
The earliest cases dealing with the “individual right” to keep and bear arms are discussed with explanations of why they did not become the law of the land, as well as those, of recent date, leading to the mistaken position taken by numerous State and Federal courts advocating the “collective right” and “quasi-collective right” views.
While the report is a “legal document” in the sense that it covers just about every important case dealing with the subject, with legal authorities noted, it is so well-documented and all-encompassing of the subject that it should be read by anyone interested in the Second Amendment. This work is a veritable compendium of research done over the centuries by many constitutional scholars, and others, and it provides a cornucopia of authority not to be found anywhere else to date.
There is, however, one caveat that should be understood. The compilares of this mammoth work stated the following from the onset:
" 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.”
In other words, ladies and gentlemen, it’s nice to know that the highest prosecutorial office in our nation recognizes the “individual-right” in our 2nd Amendment. However, never forget that while the intellectual battle may have been won, the fight continues in the trenches, case by case. Hopefully, one day in the not too distant future, the U.S. Supreme Court will embrace the intellectual argument of the true meaning of the Second Amendment, as the DOJ sees it now, and correctly address the substance of that individual-right view so as to prohibit restrictions on its exercise--that is, when the right case comes along at the right time. You can view the entire DOJ Opinion at:
http://www.usdoj.gov/olc/secondamendment2.htm#intro





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