WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
http://www.usdoj.gov/olc/secondamendment2.htm
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
The Unsettled Legal Landscape
Textual and Structural Analysis
"The Right of the People"
"To Keep and Bear Arms"
"A Well Regulated Militia, being Necessary to the Security of a Free State"
Structural Considerations: The Bill of Rights and the Militia Powers
The Original Understanding of the Right to Keep and Bear Arms
The Right Inherited from England
The Right in America before the Framing
The Development of the Second Amendment
The Early Interpretations
The First Commentators
The First Cases
Reconstruction
Beyond Reconstruction
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.
Please let us know if we may provide further assistance.
Steven G. Bradbury
Principal Deputy Assistant Attorney General
Howard C. Nielson, Jr.
Deputy Assistant Attorney General
C. Kevin Marshall
Acting Deputy Assistant Attorney General