JohnRich 4 #1 December 17, 2004 Newly published from the Dept. of Justice: 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 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. 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. DOJ Source Quote Share this post Link to post Share on other sites
PhillyKev 0 #2 December 17, 2004 Yep, the one thing that Ashcroft did right (btw, 8/24 isn't exactly newly published). Unfortunately, federal judges have shown that they don't agree. Quote Share this post Link to post Share on other sites
JohnRich 4 #3 December 17, 2004 Quote(btw, 8/24 isn't exactly newly published) In government time, four months is the speed of light. Quote Share this post Link to post Share on other sites
PhillyKev 0 #4 December 17, 2004 got me there Quote Share this post Link to post Share on other sites
quade 3 #5 December 17, 2004 Lemme see . . . The Legislative branch makes the law. The Executive branch is supposed to enforce the law. Isn't it the Judicial branch that is supposed to interpret the law? Don't let the name Department of Justice fool ya -- it's the Executive branch and doesn't have "final" say over matters such as this. They can voice opinion, which is all this is, but the Supreme Court has the final say.quade - The World's Most Boring Skydiver Quote Share this post Link to post Share on other sites
lawrocket 3 #6 December 17, 2004 QuoteLemme see . . . The Legislative branch makes the law. The Executive branch is supposed to enforce the law. Isn't it the Judicial branch that is supposed to interpret the law? Don't let the name Department of Justice fool ya -- it's the Executive branch and doesn't have "final" say over matters such as this. They can voice opinion, which is all this is, but the Supreme Court has the final say. true dat. However, opinions of the attorney general are citable as persuasive opinion. This means that I can cite to it to attempt to persuade the court's reasoning, though it need not rely on that. Of course, I can cite to law reviews and laws in other states, but the courts may disregard them. More importantly, it can give you an idea about whether you can expect to be prosecuted by the attorney general for complying with the opinion. My wife is hotter than your wife. Quote Share this post Link to post Share on other sites
Kennedy 0 #7 December 18, 2004 Nobody has the final say on this one. Any judge down the road can decide he doesn't like what he should do, so he'll do what he wants to do and then rationalize it as best he can. Even supreme court decisions aren't "final." They never cover everything, and are always subject to review under future cases. ps - there is extensive case law, including supreme court rulings, that states very clearly that the second amendment recognizes an individual right.witty subliminal message Guard your honor, let your reputation fall where it will, and outlast the bastards. 1* Quote Share this post Link to post Share on other sites
EBSB52 0 #8 December 18, 2004 QuoteNobody has the final say on this one. Any judge down the road can decide he doesn't like what he should do, so he'll do what he wants to do and then rationalize it as best he can. Even supreme court decisions aren't "final." They never cover everything, and are always subject to review under future cases. ps - there is extensive case law, including supreme court rulings, that states very clearly that the second amendment recognizes an individual right. True, and dissent from US Sup Ct decisions often end up as opinion in later cases. However, I do not see the direct language of the 2nd translating to mean I can stuff a gun under my pillow. I would argue and fight for the right to do so, but I don't see any direct language supporting that right. Therefore, the right is carried wholly with the appellate courts. Quote Share this post Link to post Share on other sites
Lizard 0 #9 December 18, 2004 It does'nt matter anymore. The second amendment is supposed to be a right, but yet we, as individuals have to ask permission to purchase, or carry a firearm. That means it is not considered to be a right, but instead a privilege. As with any privilege, it can be taken away. This "right" is no longer a right. Hell, the Feds have basically flushed the whole "Bill Of Rights" down the drain. Quote Share this post Link to post Share on other sites
Kennedy 0 #10 December 18, 2004 I wasn't goig to answer your post, but I don't want anyone thinking that meant I agreed with you. I don't. Quote However, I do not see the direct language of the 2nd translating to mean I can stuff a gun under my pillow. I don't see language in the first amendment that says you can go to church on Sunday, or that you can use this website. Does that mean the first amendment doesn't protect those activities? If you don't see the direct link, then what does "the right to keep and bear arms" mean to you? What is included?witty subliminal message Guard your honor, let your reputation fall where it will, and outlast the bastards. 1* Quote Share this post Link to post Share on other sites
kallend 1,651 #11 December 18, 2004 QuoteIt does'nt matter anymore. The second amendment is supposed to be a right, but yet we, as individuals have to ask permission to purchase, or carry a firearm. That means it is not considered to be a right, but instead a privilege. As with any privilege, it can be taken away. This "right" is no longer a right. Hell, the Feds have basically flushed the whole "Bill Of Rights" down the drain. That applies across the board, as you state. The IXth and Xth Amendments are basically meaningless. Not only do we appear to have no rights unless explictly granted to us (contrary to the language of the Declaration of Independence), even the explicity stated rights are now considered to be privileges - like you need a permit to carry a protest sign.... The only sure way to survive a canopy collision is not to have one. Quote Share this post Link to post Share on other sites
Lizard 0 #12 December 18, 2004 It means the feds have no buisness knowing if you have a firearm or not. To me thats what it means. "I don't see language in the first amendment that says you can go to church on Sunday, or that you can use this website. Does that mean the first amendment doesn't protect those activities?" Ask the Branch Davidians about that one. Quote Share this post Link to post Share on other sites
jcd11235 0 #13 December 18, 2004 QuoteA 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. The founding fathers clearly said that arms should be regulated, even if the right of the citizens to possess them could not be infringed.Math tutoring available. Only $6! per hour! First lesson: Factorials! Quote Share this post Link to post Share on other sites
pajarito 0 #14 December 18, 2004 QuoteQuoteA 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. The founding fathers clearly said that arms should be regulated, even if the right of the citizens to possess them could not be infringed. No, they clearly said a well regulated militia. They also clearly said that the people should have the right to keep and bear arms. They did not mention that all arms should be regulated. People, however, try and insert that hidden meaning into it. There are two separate thoughts in that sentence both of which should not be infringed and are equally important. You can't keep one and take out the other. Quote Share this post Link to post Share on other sites
jcd11235 0 #15 December 18, 2004 QuoteThere are two separate thoughts in that sentence both of which should not be infringed and are equally important. You can't keep one and take out the other. The first thought qualifies the second thought. If the FF had wanted unregulated arms, they would not have qualified the right. The first half of the sentence cannot be disregarded.Math tutoring available. Only $6! per hour! First lesson: Factorials! Quote Share this post Link to post Share on other sites
EBSB52 0 #16 December 18, 2004 Quote Quote However, I do not see the direct language of the 2nd translating to mean I can stuff a gun under my pillow. I wasn't goig to answer your post, but I don't want anyone thinking that meant I agreed with you. I don't. Ok, is this neccessary? Is this issue about me or you or whether you aggre or not??? This illustrates your argumentative nature. I don't see language in the first amendment that says you can go to church on Sunday, or that you can use this website. Does that mean the first amendment doesn't protect those activities? Of course it isn't written prohibiting any of those actions, which further supports my point; the US Constitution IS what is established in appellate court decision. Show me 1 right that is spelled out in the Bill of rights that is verbatum a right that is tangibly spelled out . Unreasonable search and seizure; what is unreasonable? State-sponsored religion; what actions are considered state-sponsored? If the pledge utilizes the word, "God" and that pledge is read in a pulic school, is that state sponsoring religion? Right to counsel? If you get a dimestore lawyer, you have counsel, but is it what the forefathers meant? Is it what the justices interpret it to contemporarily mean? Is the death penalty cruel and unusual? If it is administered in probable error, is it cruel or unusual? See, I could go on forever, but unless you refer to amendments that deal with voting ages and term limits, these aren't tangible and clearcut, so interpretation is required. It sucks, but there was no way for the drafters to forsee all posibilities. If you don't see the direct link, then what does "the right to keep and bear arms" mean to you? What is included? It's fun to able to post partial snips when arguing, bot not honest. The entire passage reads: "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." Let me answer you question with a question: If you think the original writing of the 2nd allow you to own and keep firearms, then what does, "A well regulated Militia..." mean to you? If something is well regulated, then it is controlled as to the what and the where, right? So does that mean that at the very least we register all guns as to the owner and address to which they are kept? And at the other end we have them kept at state armories other than when the owners are hunting or target shooting? There is all kind of ambiguity in all of the Bill of Rights, and some of the subsequent amendments. Again, for the record, I am more pro-2nd than most members here. Quote Share this post Link to post Share on other sites
EBSB52 0 #17 December 18, 2004 QuoteQuoteA 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. The founding fathers clearly said that arms should be regulated, even if the right of the citizens to possess them could not be infringed. I replied b4 I read this, but it's true, the, "well regulated" is a timebomb waiting to explode. Quote Share this post Link to post Share on other sites
kallend 1,651 #18 December 18, 2004 Quote There are two separate thoughts in that sentence both of which should not be infringed and are equally important. You can't keep one and take out the other. Given that the founding fathers were very much more literate than the average American in 2004, that is rather a stretch. They would have known that it is very poor English to put two separate thoughts in the same sentence.... The only sure way to survive a canopy collision is not to have one. Quote Share this post Link to post Share on other sites
EBSB52 0 #19 December 18, 2004 QuoteQuoteQuoteA 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. The founding fathers clearly said that arms should be regulated, even if the right of the citizens to possess them could not be infringed. No, they clearly said a well regulated militia. They also clearly said that the people should have the right to keep and bear arms. They did not mention that all arms should be regulated. People, however, try and insert that hidden meaning into it. There are two separate thoughts in that sentence both of which should not be infringed and are equally important. You can't keep one and take out the other. 1) Actually it's, "...shall not be infringed." Could, can, will, may, shall all have different connotations. It could easily be interpreted that the infringement not be violated by having to check in your weapons if it can interpreted that a telephonic warrant to forcibly draw blood on a DUI stop not be unreasonable. I'm not arguing with perspective; we're in agreement as to what we want the courts to do, but the language allows for the courts to emphasize the part about regulation and ignore the part about, "...the right of the people to keep and bear Arms..." If you don't think so, then research any stare decisis or one of many appellate court decisions. Quote Share this post Link to post Share on other sites
EBSB52 0 #20 December 18, 2004 QuoteQuoteThere are two separate thoughts in that sentence both of which should not be infringed and are equally important. You can't keep one and take out the other. The first thought qualifies the second thought. If the FF had wanted unregulated arms, they would not have qualified the right. The first half of the sentence cannot be disregarded. Ya, the statement self-contradicts, just as is found in other amendments. How about rights to privacy; please find me the word, "privacy" in the Const? But the 4th appellate decisions are full of statements about expectations of privacy. The original writing of the Const is as useful as an old pair of shoes; they feel real comfy, but they are futile in most applications. Quote Share this post Link to post Share on other sites
Jib 0 #21 December 18, 2004 QuoteGiven that the founding fathers were very much more literate than the average American in 2004, that is rather a stretch. They would have known that it is very poor English to put two separate thoughts in the same sentence. I'm not an English teacher, but it the provision itself an example of good English sentence? It seems like it should begin with because and use "is" instead of "being" -------------------------------------------------- the depth of his depravity sickens me. -- Jerry Falwell, People v. Larry Flynt Quote Share this post Link to post Share on other sites
EBSB52 0 #22 December 18, 2004 http://caselaw.lp.findlaw.com/data/constitution/amendment02/ This is interesting. It basically illustrates that the the 2nd has more to do with the state having authority than does it refer to the individual ownership. It essentially excludes the feds from the equation, and that's about it. The case law shown talks about the type of weapon used to ensure the security of a free state, and excludes from protection status some weapons. I hate the ambiguity in the language, but am not going to fool myself into thinking the original writing guarantees me that I will be able to stuff a gun under my pillow or carry one in my car. Does being able to have a gun in my house\for protection of my house ensure the, "...security of a free State...?" Quote Share this post Link to post Share on other sites
EBSB52 0 #23 December 18, 2004 QuoteQuoteGiven that the founding fathers were very much more literate than the average American in 2004, that is rather a stretch. They would have known that it is very poor English to put two separate thoughts in the same sentence. I'm not an English teacher, but it the provision itself an example of good English sentence? It seems like it should begin with because and use "is" instead of "being" Well, if you're referring to this, "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." Then they do start the sentence with, "A." But I agree..... they used to talk/write funny! OldEnglish is weird to me, but what do I know! Quote Share this post Link to post Share on other sites
killler 2 #24 December 18, 2004 One must look at the time the 2nd amendment was written to understand what they were saying.... At that time, People were aware that the only way to have a free state was to have people armed against the powers of a government gone amok... Thats why the separation of powers in the government.... To help stop the government from removing the freedoms they gave to us in the bill of rights.... A free and fair government does not fear a armed state... But a corrupt government should fear the people.... Killer..... Quote Share this post Link to post Share on other sites
lawrocket 3 #25 December 18, 2004 One other thing: Whether it's an individual right or not is not really the big issue. The issue is whther the 2nd Amendment will be "incorporated." That is, whether the 14th Amendment forces the individual states to adhere to the 2nd Amendment. It hasn't been done yet. Neither has the 3rd Amendment, the 7th Amendment, nor the Grand Jury indictment clause of the 5th Amendment. So, until a Court actually incoporates it, states can infringe. For the time being, the 2nd Amendment applies only to the Feds My wife is hotter than your wife. Quote Share this post Link to post Share on other sites
