WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT

Download:WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT eBook Formats available [PDF] [ePub] [Mobi]

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

I. The Unsettled Legal Landscape

II. Textual and Structural Analysis

_._A. "The Right of the People"

_._B. "To Keep and Bear Arms"

_._C. "A Well Regulated Militia, being Necessary to the Security of a Free State"

_._D. Structural Considerations: The Bill of Rights and the Militia Powers

III. The Original Understanding of the Right to Keep and Bear Arms

_._A. The Right Inherited from England

_._B. The Right in America before the Framing

_._C. The Development of the Second Amendment

IV. The Early Interpretations

_._A. The First Commentators

_._B. The First Cases

_._C. Reconstruction

_._D. Beyond Reconstruction

Conclusion

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) See, e.g., United States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir. 2001). 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) See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060-61, 1086-87 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003). 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) Emerson, 270 F.3d at 219 (describing intermediate view); see also, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942). 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) See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004). We therefore label this group of intermediate positions the “quasi-collective right” view.

The Supreme Court has not decided among these three potential interpretations, and the federal circuits are split. The Executive Branch has taken different views over the years. Most recently, in a 2001 memorandum to U.S. Attorneys, you endorsed the view that the Second Amendment protects a “'right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms'” but allows for “reasonable restrictions” designed “to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse.”5) Memorandum for United States Attorneys from the Attorney General, Re: United States v. Emerson (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260), reprinted in Brief for the United States in Opposition, app., Emerson v. United States, 536 U.S. 907 (2002) (denying certiorari). You added that the Department of Justice “can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.”

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. 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.

This memorandum proceeds in four parts. Part I addresses the current unsettled state of the law in this area. Part II demonstrates that the text and structure of the Constitution support the individual-right view of the Second Amendment. Part III shows why this view finds further support in the history that informed the understanding of the Second Amendment as it was written and ratified. Finally, Part IV examines the views of commentators and courts closest to the Second Amendment's adoption, which reflect an individual-right view, and then concludes by describing how the modern alternative views of the Second Amendment took hold in the early twentieth century.

I. THE UNSETTLED LEGAL LANDSCAPE

Recent interpretations of the Second Amendment have been characterized by disagreement and uncertainty. The Supreme Court has not decided the question that we address here, and at least three views prevail in the federal courts of appeals. The Executive Branch has taken varying positions, and the Amendment has been the subject of extensive academic debate for the past two decades.

The Supreme Court's most important decision on the meaning of the Second Amendment, United States v. Miller,6) 307 U.S. 174 (1939). grew out of the enactment of the National Firearms Act of 1934.7) Ch. 757, 48 Stat. 1236. That Act was the first federal regulation of private firearms.8) See National Firearms Act: Hearings on H.R. 9066 Before the House Comm. on Ways and Means, 73d Cong. 90 (1934) (statement of Ass't Atty. Gen. Keenan); United States v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995). It taxed (and thereby registered) transfers of sawed-off shotguns or rifles capable of being concealed, machine guns, and silencers. It also taxed dealers in such weapons and required anyone who possessed such a weapon acquired before 1934 to register it with federal tax authorities.

A Second Amendment challenge to this Act produced Miller in 1939, the closest that the Supreme Court has come to interpreting the substance of the Amendment. Miller and a co-defendant were indicted for transporting an unregistered sawed-off shotgun in interstate commerce from Oklahoma to Arkansas, and the district court sustained their Second Amendment challenge to the indictment. On appeal by the Government, neither defendant appeared or filed a brief.9) 307 U.S. at 175-77. The Court, in reversing and remanding, held that the sawed-off shotgun was not among the “Arms” protected by the Second Amendment absent “evidence tending to show that” its use or possession “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Citing an 1840 decision of the Tennessee Supreme Court, Aymette v. State, the Court concluded that it was not “within judicial notice” that a sawed-off shotgun was a weapon that was “any part of the ordinary military equipment” or whose use “could contribute to the common defence.” Absent evidence, therefore, the Court could not “say that the Second Amendment guarantees the right to keep and bear such an instrument.”10) Id. at 178 (citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840). We discuss Aymette below in Part IV.B.2.

After this one-paragraph discussion, the Court quoted the powers that Article I, Section 8, Clauses 15 and 16 of the Constitution grant to Congress to provide for calling forth, organizing, arming, and disciplining “the Militia,” and stated that the Second Amendment's “declaration and guarantee” were made “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of” the militia, and that the Amendment “must be interpreted and applied with that end in view.”11) Id. The Court then added a historical discussion demonstrating that “the term Militia” as used in various provisions of the Constitution, including the Second Amendment, referred to a body that “comprised all males physically capable of acting in concert for the common defense,” who “were expected to appear” for occasional training “bearing arms supplied by themselves and of the kind in common use at the time,” which in the 1700's usually meant a “good” musket of proper length.12) Id. at 179; see id. at 179-82 (describing militia regulations, including arms requirements).

Miller did not resolve the question addressed in this memorandum. Although the meaning of the decision is much debated, three points appear evident. First, the holding was limited to the meaning of “Arms” in the Second Amendment and whether a sawed-off shotgun is among the arms protected. In determining that meaning, the Court also interpreted the term “Militia” as used in the Constitution. Second, the Court did not categorically reject Miller's Second Amendment challenge. The Court's decision to address the substance of this challenge to his indictment, as opposed to concluding that only States could bring such a challenge, appears to be inconsistent with a collective-right view.

Finally, the Court did not clearly decide between the individual-right and quasi-collective-right views. Its holding regarding the meaning of “Arms” is consistent with either view: The Court's limitation of “Arms” to those weapons reasonably related to the preservation or efficiency of a well-regulated militia (such as those that are “part of the ordinary military equipment” or that “could contribute to the common defense”) could be consistent with a right to “keep and bear” such arms that is restricted to service in an organized military unit such as the National Guard; but that holding is also consistent with an individual right to keep and bear whatever “Arms” the Amendment protects. Similarly, the Court's reference to the need to interpret the Second Amendment's “declaration and guarantee” with the “end in view” of furthering “the continuation and render[ing] possible the effectiveness of” the militia could be consistent with a quasi-collective-right view; but it is also consistent with the understanding of the relationship between an individual right to keep and bear arms and the “Militia” that prevailed at the time of the Founding, an understanding confirmed by early authorities' discussions of the Second Amendment's preface.((See below, Parts II.C (discussing Second Amendment's preface), III.B-C (discussing Founders' recognition that the individual right to arms furthered the citizen militia), IV.A (discussing early commentators), IV.B.2 (discussing early cases