I Expect Much Frothing and Gnashing of Teeth

As most of my readers are probably aware, the Justice Department has just released a memorandum that states in no uncertain terms that the Second Amendment protects an individual right to arms. The report is dated August, 2004, but it was released apparently yesterday. It was authored by Steven G. Bradbury, Principal Deputy Assistant Attorney General; Howard C. Nielson, Jr., Deputy Assistant Attorney General; and C. Kevin Marshall; Acting Deputy Assistant Attorney General.

The report concludes:

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.

Now all we have to do is get the Federal Appeals courts to overturn stare decisis and start making decisions based on that interpretation.

For example, in the Ninth Circuit's recent denial to re-hear its Silveira decision en-banc, the Court once again upheld its precedent from Hickman v. Block that concluded that the right to arms was collective, not individual. However, several judges on the circuit wrote dissents, some scathing. My favorite was Judge Kozinski's. In the Ninth Circuit's denial to re-hear Nordyke v. King en-banc, this vocal dissent was repeated, with judge Jay Gould stating:

I believe Hickman was wrongly decided. An “individual rights” interpretation, as was recently adopted by the Fifth Circuit in United States v. Emerson is most consistent with the text, structure, purposes and history of the Second Amendment, as well as colonial experience and pre-adoption history. It also reflects what I consider to be the scholarly consensus that has recently developed on the question of how to best interpret the Second Amendment. We should recognize that individual citizens have a constitutional right to keep and bear arms, subject - in the same manner as all other core constitutional rights - to certain limits. Thereafter, the chips will fall where they may, and decisions in due course will clarify what is and is not constitutionally permissible regulation, and the further standards for addressing it.

We're still building momentum. Perhaps the courts may still save us. The gun ban control crowd must be seething.