This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is "the right of the people to keep and bear arms." Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District's decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.

The Framers' intent

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "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." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

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 TABLE OF CONTENTS Introduction 1 I. The Unsettled Legal Landscape 2 II. Textual and Structural Analysis 10 A. "The Right of the People" 11 B. "To Keep and Bear Arms" 14 C. "A Well Regulated Militia, being Necessary to the Security of a Free State" 19 D. Structural Considerations: The Bill of Rights and the Militia Powers 36 III. The Original Understanding of the Right to Keep and Bear Arms 40 A. The Right Inherited from England 41 B. The Right in America before the Framing 49 C. The Development of the Second Amendment 60 IV. The Early Interpretations 79 A. The First Commentators 79 B. The First Cases 85 C. Reconstruction 100 D. Beyond Reconstruction 103 Conclusion 106 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.}

CONCLUSION

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, 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. The text of the Amendment’s operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.

Our Founding Fathers considered the right to bear arms paramount, and the Second Amendment to the Constitution prohibits the federal government from denying law-abiding citizens the right to own and bear arms. 

While legislation to ban firearms, ammunition, and equipment makes headlines, the truth is these antics simply divert attention from the real issue: an ineffective criminal justice system that cannot adequately prosecute violent predators.  Of America's 4.3 million convicted criminals, barely 26% are in prison.  New York City and Washington, D.C. itself are prime examples of the failure of radical gun control policies.  While these two cities have the two most restrictive gun control laws in the country, they are both known for their violent criminal activity.  These cities have gun control, but clearly little crime control.

I have personally experienced situations with social delinquents, and I should be able to defend myself.  America needs tougher laws against criminal activity.  The government should be concentrating on locking up criminals, not imposing penalties on law-abiding citizens who are merely exercising their right to protect their families.

On July 16, however, Mayor Adrian Fenty announced that Washington, DC, would appeal the Circuit Court’s ruling, and attempt to have the decision overturned by the Supreme Court.  Please know that I am closely monitoring this important case and its wide-ranging implications. 

Our nation must face the harsh realities of our ineffective criminal justice system, and work to solve the true evils that plague our nation.  Gun control is neither the problem nor the solution.

The text 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.

FIRST: The Second Amendment protects an individual right that existed before the creation of any government. The Declaration of Independence made clear that all human beings are endowed with certain unalienable rights, and that governments are created to protect those rights.

A. The unalienable right to freedom from violent harm, and the right to self-defense, both exist before and outside of secular government.

1. Torah: Exodus 22:2.

2. Talmud: Jewish law set forth in the Talmud states, “If someone comes to kill you, arise quickly and kill him.” (Talmud, Tractate Sanhedrin. 1994,2, 72a; The Babylonian Talmud: Tractate Berakoth. 1990, 58a, 62b).

3. Roman Catholic Doctrine: Christian doctrine has long asserted the right and duty of self defense. “Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow.” See Catechism of the Catholic Church 1994, sections 2263-65 (citing and quoting Thomas Aquinas).

4. Protestant Doctrine: Individual has personal and unalienable right to self-defense, even against government. Samuel Rutherford, Lex, Rex [1644]1982, pp. 159-166, 183-185 (Sprinkle Publications edition.) Jesus advised his disciples to arm themselves in view of likely persecution. Luke 22:36.

B. John Locke’s Second Treatise of Government (1690) aimed at reforming Britain’s monarchy and parliamentary system and limiting the power of government, and profoundly influenced the Founders and all Western Civilization. John Locke explained that civil government properly exists to more effectively protect the rights that all individuals have in the “state of nature.” The individuals have the rights to life, liberty, and property. They give civil government the power over themselves only to the extent that it better protects those rights. Thomas Jefferson, author of the Declaration of Independence, specifically declared that the ideas of John Locke’s Second Treatise were “generally approved by the citizens of the United States.”Jefferson mandated that Locke’s Second Treatise be taught in theUniversity of Virginia.

C. Christian religious thinkers, such as Samuel Rutherford (in Lex, Rex, 1644) argued that man’s rights come from G-d. Using Biblical principles and examples, they argued against the notion that kings ruled by divine right. To be legitimate authorities, all governments must uphold man’s rights and do justice. Otherwise, the people owe a lawless and tyrannical ruler no allegiance at all.

D. Cicero, Rome’s leading orator, had early argued that the right to self-defense was natural and inborn, and not a creation of the government.The right to use weapons was a necessary part of the right to self-defense — any view to the contrary was silly nonsense. [Stephen P. Halbrook, That Every Man Be Armed: The Evolution of A Constitutional Right (1984), p. 17, fn 76-77.]

E. The right to keep and bear arms simply implements the unalienable right to individual self-defense against aggression of any kind. The Second Amendment refers to “the right of the people” (not the state) as a pre-existing right that government must respect.

F. The United States Supreme Court, in United States v. Verdugo-Urquidez, indicated that the word “people” in the Second Amendment referred to individuals, not to states. [494 U.S. 259 (1990)] (This was not a holding or ruling of law, but an observation by the Court).