The Justice Department has interpreted the Second Amendment as granting an individual right to bear arms. It’s about time.
For years, Justice Department policy has been to interpret the Second Amendment as granting a collective right to bear arms, an interpretation supposedly in line with the United States Supreme Court’s decision in United States v. Miller.
However, Attorney General John Ashcroft and Solicitor General Theodore Olsen recently reversed policy and found that the Second Amendment promotes an individual right to bear arms. This decision is a proper return to originalist constitutional principles with beneficial public policy effects.
The decision received a great deal of criticism from observers who argued that the Justice Department was not justified in reversing policy that stemmed from the Supreme Court’s Miller decision, which is viewed by many to reject an individual right to bear arms, favoring only a collective right.
However, this view is likely mistaken. In Miller, the Supreme Court merely states that "[I]n the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
The Court’s discussion clearly centered on whether a particular shotgun with specific dimensions (a sawed-off shotgun) had a relationship to the preservation of a well-regulated militia, with the answer being no. This is an exceedingly narrow ruling, and did not constitute a declaration by the Court that the Second Amendment did not convey upon the citizenry an individual right to bear arms.
Critics of the Justice Department's new policy are misrepresenting Miller. Miller merely addressed whether the Second Amendment guaranteed the possession of a specific shotgun. It did not address whether the Second Amendment grants an individual or a collective right to bear arms.
A search for more conclusive language regarding the Second Amendment’s extension of an individual right to bear arms requires only a look at the Fifth Circuit Court of Appeals’ recent decision in United States v. Emerson. Agreeing that Miller did not resolve the issue of whether the Second Amendment grants an individual or a collective right, the Emerson court took up the matter itself. It found that the Second Amendment "protects the rights 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."
While the Emerson court hastened to add that the right is not absolute, the fact is that no right guaranteed anywhere in the Constitution is absolute.
Moreover, as Professor Glenn Reynolds points out, the individual rights theory of the Second Amendment does nothing to strike down reasonable gun control laws — such as preventing people with violent histories from owning guns, or forbidding reasonable waiting periods.
Reynolds also argues that a firm recognition of an individual rights interpretation of the Second Amendment will enable the public to have less heated, and more dispassionate, debates about gun control. Second Amendment advocates will no longer have to fear that gun control is a Trojan horse designed to eventually erode the fundamental right to bear arms.
Other critics of the Justice Department’s reversal argue that the specific language of the Second Amendment militates against an individual right to bear arms. The Second Amendment reads as follows: "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."
Opponents of individual rights focus on the prefatory language, "a well regulated Militia being necessary to the security of a free State," and argue that the Second Amendment was only meant to arm militias. The Framers, this argument goes, limited the scope of the Second Amendment by use of the prefatory language, which they did not do elsewhere in the Bill of Rights.
However, Second Amendment scholar Professor Eugene Volokh has pointed out that this argument has little merit. Prefatory language is much more common in the construction of constitutional text than individual rights critics like to claim.
For example, the state constitutions for both Rhode Island and New Hampshire use prefatory language in reference to free press and criminal trials, respectively. Rhode Island’s constitution reads, "[t]he liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for an abuse of that liberty."
Would the same Second Amendment critics want their prefatory language argument used to restrict speech or impair the right to a fair trial?
In addition to the legal arguments, the policy reasons behind the Justice Department’s new decision are compelling. Yale statistician John Lott persuasively shows in his book More Guns, Less Crime that "right-to-carry" laws lead to a dramatic reduction in crimes against the person, due to the deterrent effect of those laws.
The logic is simple: A criminal will be less likely to attack a person if the potential victim may be armed. Recognizing that the Second Amendment grants an individual right to bear arms directly supports the implementation and the legality of right-to-carry legislation. Thus, the Justice Department’s position is not only consistent with the original intent of the Second Amendment, it makes eminent policy sense in the effort to keep people safe from the threat of violent crime.
Despite the controversy, the Justice Department’s decision to recognize an individual right to bear arms under the Second Amendment was appropriate and justified. The Justice Department properly interpreted legal precedent and the traditions of constitutional construction.
Moreover, the department’s decision will have a tangible policy benefit in deterring violent crime against individuals. The collective rights interpretation of the Second Amendment should have been changed long ago. Now that the change is finally being made, it should be welcomed, not condemned.
Pejman Yousefzadeh is an attorney living in southern California. He edits the weblog PejmanPundit.