Posted by Eugene Volokh:
The Justice Department's Office of Legal Counsel
has taken the view that "[t]he Second Amendment secures a right of
individuals generally, not a right of States or a right restricted to
persons serving in militias." The document is dated Aug. 24, 2004, but
it has apparently just been put on the Web site very recently. [1]The
opinion is long and detailed, and I suspect will be quite influential
-- OLC opinions tend to be. I also hope it gets some media attention:
Certainly this sort of reasoned opinion by the Justice Department
office charged with opining on such questions ought to be pretty
newsworthy.
Here's the closing paragraph:
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.
References
1. http://www.usdoj.gov/olc/secondamendment2.htm
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