Saturday, February 26, 2005

Second Amendment Refers To An Individual Right, Media Silent

In my latest issue of America's 1st Freedom, Chris Cox writes about an authoritative opinion piece written by the US Department of Justice Office of Legal Counsel for the Attorney General regarding the 2nd Amendment. The memorandum was written with a specific question in mind: does the 2nd Amendment refer to a collective right (people are only allowed to keep weapons as a member of a state or federal militia-type force) or to an individual right (people may keep weapons as a private citizen)? This has been a crux of the debate on gun control for some time. Proponents of gun control - and let's be honest in that what they mean by "gun control" is "gun bans" - have held the position that the Amendment refers to a collective right. It is for the state to authorize a person to keep a weapon and that's only valid if the person is acting in some official capacity. Serving in a "militia" means the National Guard or, possibly, as a police officer or sheriff. Opponents of gun control say it's an individual right and membership in such organizations is immaterial. Deciding this question is, therefore, key to the debate.

The 2nd Amendment is short, sweet, and to the point:

::::::::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.::::::::

That is the text of the Amendment in its entirety. You can see where the confusion comes from. Gun control proponents say the emphasis in on that first part dealing with the well-regulated militia. They consider it to be the focus of the Amendment with the rest of it depending on that first part as a condition. Gun rights proponents say the emphasis is on the second part dealing with the rights of the people to keep and bear arms not being infringed. In order to direct his Department, the Attorney General clearly needs to know which interpretation is supported by law and analysis of the language of the Constitution. The method by which he investigates such an issue is by asking his legal analysts at the OLC to research and report, which is what he did. Their report is well researched and, by the nature of who they are, authoritative. Here's their conclusion:

:::::::: As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units. Our conclusion is based on the Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents.::::::::

Feel free to read the report. It deals with the historical and case precedents as well as the analysis of the text and linguistic structure of the Amendment itself. One of the most telling items in interpretting the Amendment is in how the terms used are used in the rest of the Bill of Rights. The report notes that:

::::::::The word "right," standing by itself in the Constitution, is clear. Although in some contexts entities other than individuals are said to have "rights," the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right[s]" to an accused person, and in the Seventh secures a person's "right" to a jury trial in civil cases. By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution.::::::::

This report is huge, in terms of its impact to the ongoing debate of gun rights vs. gun control. The analysis builds its case on a monstrous amount of legal rulings, legislation, and linguistic interpretations and provides a supremely well-reasoned opinion on the specific matter in question. It's the basis upon which the DoJ will direct its efforts and its the foundation for any opinon rendered to the Legislature or the White House on the matter. This single document has a very large effect on the citizens of this country.

So, aside from right here, have you ever heard of this report? It was tendered to the Attorney General on 24 August, 2004. It was made public 17 December, 2004. Over 2 months ago. I've never heard of it, either in the local papers or in any of the broadcast media. No reports in any of the so-called "mainstream" media sources. In fact, a Google of the topic will show you several references by legal web sites and 1 - count 'em, 1 - reference by a news organization, Since then, nothing.

I contend that the reasons for that are simple.

  1. The piece has rock-solid reasoning, research, and justification for its conclusions.

  2. The piece supports the viewpoint of gun rights advocates that the 2nd Amendment refers to an individual right that is not to be infringed.

  3. The media's general bias is in favor of gun control and they therefore will not report anything not supporting their position.

I submit that had the report drawn the opposite conclusion - that the 2nd Amendent refers to a right conditional to being a member of a State militia force - the news would have been carried on every channel and on the front page of every major metro newspaper in America. Likey twice. Editorials would have erupted forth calling for Congress and State Houses to enact laws immediately to bring themselves into line with this new analysis. But because the conclusion wasn't what they'd like to see, they ignore it. They once again use their position to attempt to stifle open debate as much as possible by simply not allowing the information to flow when it's not going their way. San Francisco is still trying to get a resolution on the next ballot to ban the private ownership of firearms completely. That news, of course, is widely reported.

They're your rights, people. Don't count on the media to protect them.