# The Department of Justice: 2nd Amendment upholds individual, not collective rights **URL:** \ **Category:** Great Debates\ **Created:** [February 25, 2005, 2:22pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868 "2005-02-25T14:22:57Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [February 25, 2005, 8:28pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/41 "2005-02-25T20:28:25Z")
> [@BF](#): > > You are correct. But congress would not have passed or Clinton signed into law the AW ban without the tacit approval of the AG and Clinton’s backing. The relevance of the OP, IMO, is that with the new JD’s memo, there will not be an active pursuit to curtail the individual right opinion, either through the courts or through congressional action. Well of course the presidents and AG’s opinions informally make a difference. But the OP said: > [@Airman](#): > > When the guys responsible for enforcing the laws agree that the Amendment applies individually and not collectively, I think that pretty much puts the whole “militia” argument to bed. which seems to imply that it was legally important somehow. If all he meant was that it means a Repub administration isn’t going to go out of its way to enforce gun laws, well, I’m certainly not going to argue, but it hardly seems worth starting a thread over. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2005, 8:28pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/42 "2005-02-25T20:28:29Z")
> [@BF](#): > > You are correct. But congress would not have passed or Clinton signed into law the AW ban without the tacit approval of the AG and Clinton’s backing. The relevance of the OP, IMO, is that with the new JD’s memo, there will not be an active pursuit to curtail the individual right opinion, either through the courts or through congressional action. True but this is only relevant until the next Presidential Administration. There is no _finality_ in the policy. **AD** seemed to be investing more significance in the policy than was warranted. The Attorney General is always a water carrier for the President. There is nothing surprising or important in the current AG’s policy on who to prosecute… ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 25, 2005, 8:28pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/43 "2005-02-25T20:28:32Z")
I was speaking pragmatically, about the effect this study above will have. There are many laws, not all of which have been or will ever be challenged by a court, and even then, not all cases make it to the Supreme Court. In this matter, the DoJ has issued a statement about something the Supremes have not covered, and seem unlikely to cover. They have decided what this amendment means, and will decide to proscecute, not to prosecute, and what tactics the prosecutions will take, with this statement. They are deciding the 2nd Amendment means _this_. This will, for the purposes of law enforcement, be true, until either A: they change their minds, or B: the Supreme Court takes a stand. A can happen many times. B: will generally happen once on an issue. How, in a practical manner, is this different from deciding the constitutionality of the interpretation of the 2nd Amendment, as Dio says? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2005, 8:34pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/44 "2005-02-25T20:34:23Z")
> [@E-Sabbath](#): > > I was speaking pragmatically, about the effect this study above will have. There are many laws, not all of which have been or will ever be challenged by a court, and even then, not all cases make it to the Supreme Court. > > In this matter, the DoJ has issued a statement about something the Supremes have not covered, and seem unlikely to cover. They have decided what this amendment means, and will decide to proscecute, not to prosecute, and what tactics the prosecutions will take, with this statement. They are deciding the 2nd Amendment means _this_. This will, for the purposes of law enforcement, be true, until either A: they change their minds, or B: the Supreme Court takes a stand. A can happen many times. B: will generally happen once on an issue. > > How, in a practical manner, is this different from deciding the constitutionality of the interpretation of the 2nd Amendment, as Dio says? My objection was in **Airman’s** statement that the militia interpretation had been “put to bed,” implying that there was some sort of authoritative finality in the AG’s policy rather than the ordinary implementation of White House policies and preferences, which all AG’s do. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 25, 2005, 8:36pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/45 "2005-02-25T20:36:25Z")
> [@blowero](#): > > Am I missing something here? Doesn’t the Attorney General _enforce_ the law? And don’t the courts _rule_ on the law? My understanding is that an attorney is an _advocate_ of a particular position. He is not the _arbiter_. A _judge_ is the arbiter. As an analogy, if I am accused of murder, the District Attorney decides whether to prosecute me. If he does prosecute, he advocates the position that I am guilty, while my defense attorney advocates the position that I am innocent. But neither decides _whether murder is a crime_. I realize my point above was badly made. But what you say here may make it easier to restate it in terms that will make sense. An Attorney General and his staff are **lawyers**. Their job it is to study the law and prosecute cases which are brought to their attention as requiring prosecuting. In a free country, there will be wide divergence of opinion regarding constitutional rights and the effect of laws. It is the job of the senior prosecuting official, whether he be the D.A. of a county of 1,000 people or the Attorney General of the United States, to decide which alleged crimes to prosecute, and under what circumstances. Consider the grouchy old man who has called the cops on his neighbors 50 times in the past year, and who alleges that the woman next door trespassed when she ran onto the edge of his yard in pursuit of her toddler. There is a clearcut instance of trespass there, but no D.A. in the country will expend any resources in prosecuting it. In any larger prosecutorial agency, there will be statements of policy, usually written up as formal “Opinions” of the C.E.O. of that agency. New York municipal law draws heavily on the Opinions of the State Comptroller and Attorney General as to how the sometimes-vague statutes regarding municipal affairs are to be construed – because the first is charged with oversight over municipal financial affairs, and the second over possible criminal offenses, their Opinions govern whether a given act inquired about is _intra_ or _ultra vires_ for a local official. Essentially, the Attorney General of the United States is saying that in alleged weapons offenses, the Second Amendment will be construed by his staff as guaranteeing an individual, not a corporate right. It sets policy as regards potential prosecutions – in much the same way as similar opinions might govern how alleged constitutional rights regarding free speech are to be construed in relation to putative prosecutions for laws governing, e.g., obscenity or sedition laws. It’s Congress’s job not to pass an apparently unconstitutional law. It’s the job of the President and his Administation not to enforce it. And it’s the job of the Courts to decide cases brought before them in accordance with the law of the land, including determining whether such laws that _were_ passed and enforced are indeed constitutional. ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [February 25, 2005, 8:44pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/46 "2005-02-25T20:44:52Z")
> [@E-Sabbath](#): > > In this matter, the DoJ has issued a statement about something the Supremes have not covered, and seem unlikely to cover. They have decided what this amendment means, and will decide to proscecute, not to prosecute, and what tactics the prosecutions will take, with this statement. They are deciding the 2nd Amendment means _this_. This will, for the purposes of law enforcement, be true, until either A: they change their minds, or B: the Supreme Court takes a stand. A can happen many times. B: will generally happen once on an issue. > > How, in a practical manner, is this different from deciding the constitutionality of the interpretation of the 2nd Amendment, as Dio says? I’m still not seeing it. The DoJ doesn’t really “enforce” the 2nd amendment (how would you?), so who cares how they interpret it. They still have to pursue gun-control violations (granted they don’t have to be as enthusiastic about it or make it a top priority) because their are laws on the books. > [@polycarp](#): > > It’s Congress’s job not to pass an apparently unconstitutional law. It’s the job of the President and his Administation not to enforce it. And it’s the job of the Courts to decide cases brought before them in accordance with the law of the land, including determining whether such laws that were passed and enforced are indeed constitutional. I don’t think that the president can (legally) just decide not to enforce a law he deems unconstitutional. If the AG decides tomorrow that all gun laws are unconstitutional because of the 2nd amendment, he still has to enforce them. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 25, 2005, 8:51pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/47 "2005-02-25T20:51:51Z")
> [@treis](#): > > Ignoring the gun issue and speaking in general I don’t think we should look to any specific administration for an interpetation of the constitution espicially not this particular one. However, when the government itself concedes that the correct interpretation is the one that limits government power, that’s a pretty definitive example of what the lawyers call “admission against interest”. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 25, 2005, 8:53pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/48 "2005-02-25T20:53:27Z")
> [@Diogenes the Cynic](#): > > it just requires that you read the entire Amendment Yep. The entire amendment says “because it’s necessary to maintain a free country, individuals have the right to keep and bear arms”. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 25, 2005, 8:54pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/49 "2005-02-25T20:54:40Z")
> [@BrainGlutton](#): > > This memo gives us one more reason to **repeal** the Second Amendment. I applaud you honesty, in conceding that if you oppose the right of individuals to keep and bear arms, then a Constitutional amendment is your one and only recourse. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [February 25, 2005, 8:56pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/50 "2005-02-25T20:56:33Z")
> [@blowero](#): > > I don’t understand your point. “Decide” and “settle” are synonyms. No they aren’t. For instance, I might “decide” that I’m not going to pay my bills, but that will not “settle” the matter. ---
**Author:** ![Kel\_Varnsen\_Latex\_Division](https://avatars.discourse-cdn.com/v4/letter/k/aeb1de/32.png) [@Kel\_Varnsen\_Latex\_Division](https://boards.straightdope.com/u/Kel_Varnsen_Latex_Division)\ **Post date:** [February 25, 2005, 8:58pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/51 "2005-02-25T20:58:42Z")
> [@](#): > > Just to be clear about something- > > The Justice Department is part of the Executive branch, is it not? It is not part of the Judicial branch of government. The AG is a cabinet position not a judicial one. The Executive branch does not get to make Constitutitional rulings. The AG can adopt a policy as to how to enforce existing law but it cannot make rulings on the constitutionality of those laws. So nothing has been decided in any meaningful or lasting sense. All that’s happening is that a presidential appointee is carrying oy the preferred policy of a particular White House not to go after private gun owners. Whoo dee doo. Sort of. I don’t know how the federal guns laws read but it they are silent or ambiguous in regard to authortity of interpreation being given to the agency that charged with administering the laws that agency will be given deference by the courts. If federal gun laws are administered by agencies in the Justice Department (FBI, ATF) the AG will be allowed any reasonable interpretation of the laws unless Congress specifically not delegated this authority. (See Chevron Doctrine). However, this interpration will have no effect on state laws or any federal laws that expressly deny interpretative authority to the agency. OF course the next AG can just changed this interpretation. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2005, 9:09pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/52 "2005-02-25T21:09:32Z")
> [@Steve MB](#): > > Yep. The entire amendment says “because it’s necessary to maintain a free country, individuals have the right to keep and bear arms”. You must be reading the specially edited NRA version of the amendment. There’s a bit between the commas that you sort of left out. If the authors didn’t think that bit was significant, they wouldn’t have put it in there. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [February 25, 2005, 9:31pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/53 "2005-02-25T21:31:43Z")
I am not sure which your version says but mine says “the right of the people to keep and bear arms shall not be infringed.” Which I interpet as them saying [drum roll] the right of the people to keep and bear arms shall not be infringed. ---
**Author:** ![RaftPeople](https://avatars.discourse-cdn.com/v4/letter/r/6f9a4e/32.png) [@RaftPeople](https://boards.straightdope.com/u/RaftPeople)\ **Post date:** [February 25, 2005, 9:36pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/54 "2005-02-25T21:36:19Z")
Just to recap, it seems we have the following: Questions: 1. What did the writers of the ammendment intend (only partially interesting) 2. What is/will be some day the ruling of SCOTUS on the issue (very interesting to most) 3. What is the current interpretation and policy by the DOJ (interesting to some) Answers: 1. Who knows? Because it doesn’t appear we can know for sure, it’s only partially relevant. 2. Who knows? 3. This we appear to know. For this administration. Seems like 1 out of 3 does not put anything “to bed” ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [February 25, 2005, 9:37pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/55 "2005-02-25T21:37:18Z")
> [@treis](#): > > I am not sure which your version says but mine says “the right of the people to keep and bear arms shall not be infringed.” Which I interpet as them saying [drum roll] the right of the people to keep and bear arms shall not be infringed. Except that’s not all it says. Here is the entire text: _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._ The question, then, is about whether the right applies collectively to “well regulated militias,” or individually. This is not a question which has ever been decided by the Supreme Court. ---
**Author:** ![Voodoochile](https://avatars.discourse-cdn.com/v4/letter/v/898d66/32.png) [@Voodoochile](https://boards.straightdope.com/u/Voodoochile)\ **Post date:** [February 25, 2005, 9:38pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/56 "2005-02-25T21:38:12Z")
Well, the terminology is a bit inflammatory, considering there is no such thing as collective rights. Just another shot across the bow I assume in the apparent culture wars between secular religon and organized religon (the Left and the Right). There are two questions raised by the semi colon in the 2nd: 1. Do individuals have the right to keep and bear arms or is keeping and bearing arms a privelage due only to members of state run paramilitary organisations (which at the time of the constitutions writing was pretty much all adult males over what, 16? 18?). 2. If the answer to number 1 is the later (which I personally think absurd), the next question is since not all males over a certain age are automatially part of a state run paramilitary organisation anymore, is the ‘right’ (which, if only held by members of a group and not everyone, is really just a privelage) still applicable? ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [February 25, 2005, 9:46pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/57 "2005-02-25T21:46:48Z")
So…Airman, I should walk through an airport with my loaded GAK .56 automatic rifle with impunity, isn’t that right? If I get stopped, I claim 9/11: if someone was armed in the plane other than the jackers, there would be no hostage taking. ---
**Author:** ![BF](https://avatars.discourse-cdn.com/v4/letter/b/b5ac83/32.png) [@BF](https://boards.straightdope.com/u/BF)\ **Post date:** [February 25, 2005, 11:10pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/58 "2005-02-25T23:10:18Z")
> [@Diogenes the Cynic](#): > > True but this is only relevant until the next Presidential Administration. There is no _finality_ in the policy. **AD** seemed to be investing more significance in the policy than was warranted. The Attorney General is always a water carrier for the President. There is nothing surprising or important in the current AG’s policy on who to prosecute… I agree, as I previously stated in Post #24 of this thread. ---
**Author:** ![BF](https://avatars.discourse-cdn.com/v4/letter/b/b5ac83/32.png) [@BF](https://boards.straightdope.com/u/BF)\ **Post date:** [February 25, 2005, 11:24pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/59 "2005-02-25T23:24:52Z")
> [@capacitor](#): > > So…Airman, I should walk through an airport with my loaded GAK .56 automatic rifle with impunity, isn’t that right? If I get stopped, I claim 9/11: if someone was armed in the plane other than the jackers, there would be no hostage taking. I googled your firearm of choice and came up [with this](http://www.guitarampkeyboard.com/prodoptions.php?id=8880). Sure you could carry this through the airport, but as far as a tango deterrent, I don’t see the relevance. 😛 ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [February 25, 2005, 11:45pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/60 "2005-02-25T23:45:18Z")
> [@Diogenes the Cynic](#): > > The question, then, is about whether the right applies collectively to “well regulated militias,” or individually. This is not a question which has ever been decided by the Supreme Court. Eight (IIRC) of the eleven circuit courts of appeals have answered that question, however. Don’t make the mistake of thinking that something ain’t the law until the Supreme Court has spoken. [Previous page](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868.md?page=2) [Next page](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868.md?page=4)