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.
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.
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Posted on Sat, June 28, 2008
by OPINION FOR THE ATTORNEY GENERAL