# 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:** 4
**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 26, 2005, 12:06am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/61 "2005-02-26T00:06:54Z")
Also note that while the Supreme Court in _Miller_ did not answer the question of whether the Second Amendment confers a collective or individual right, it most assuredly did determine that the introductory “militia” clause has substantive effect on the scope of the right confereed, to wit, that a firearm is not covered by the amendment unless it is suitable for militia use. ---
**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 26, 2005, 12:17am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/62 "2005-02-26T00:17:07Z")
> [@minty green](#): > > 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. I’m not saying it _is_ law. I’m just saying it ain’t “put to bed” yet. FTR, I think the intent of the Amendment probably _was_ to provide the right to individuals. My comments about the militia clause were a response to **Treis’** statement that it takes “convoluted logic” to read it any other way or that the militia argument is automatically ridicuous. My position with regard to the OP is that the AG’s policy does not have any binding finality and is not a formal Constitutional ruling. ---
**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 26, 2005, 12:27am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/63 "2005-02-26T00:27:55Z")
> [@minty green](#): > > Also note that while the Supreme Court in _Miller_ did not answer the question of whether the Second Amendment confers a collective or individual right, it most assuredly did determine that the introductory “militia” clause has substantive effect on the scope of the right confereed, to wit, that a firearm is not covered by the amendment unless it is suitable for militia use. Interesting. Maybe I’m wrong about the intent. The 2nd Amendment is something I’ve never been able to get a sure handle on. On the one hand I think the militia clause must have been put in there for a reason, on the other hand it doesn’t seem obvious that the right was not intended for individuals. ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [February 26, 2005, 12:43am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/64 "2005-02-26T00:43:56Z")
> [@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. Fine with me. If I had been on one of the planes with my piece things might have turned out very differently. As it is they couldn’t have been worse. But that’s not particularly relevant to what we’re talking about. So, nobody wants to address the arguments in the memo. If there are holes in it, show me where they are. If this is politically motivated, show me where the politics comes into it. What I see is the correct interpretation, thoroughly reinforced with cite after cite. Anybody want to try to take on the opposing view, or are we just going to spin our wheels like we always do? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2005, 1:03am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/65 "2005-02-26T01:03:34Z")
> [@Diogenes the Cynic](#): > > Interesting. Maybe I’m wrong about the intent. > > The 2nd Amendment is something I’ve never been able to get a sure handle on. On the one hand I think the militia clause must have been put in there for a reason, on the other hand it doesn’t seem obvious that the right was not intended for individuals. My opinion about the _original intent_ of the Second Amendment (which admittedly is worth 37 cents less than the cost of a first class stamp at the post office) is that standing armies were a necessary evil, to be kept as small as possible, and the defense of the country if attacked would rest on an armed citizenry that could be called up as a militia in time of danger. Therefore, to ensure that that armed citizenry would remain available for being called up (a collective guarantee of being able to retain our freedom), their (individual) right to own and bear arms was protected. How that applies in days when “the militia” has come to mean the Army’s state reserves and auxiliary forces, and weapons in the hands of disgruntled city dwellers become a danger to the public peace, is a different question. However, I don’t think that blunts the constitutional guarantee, or licenses anyone to work around it. If it needs changing, make changes that meet the needs of the **whole** country; don’t just interpret it into oblivion. And remember that there are people who live in rural forested areas who **do** need to go armed. The problems of inner-city Baltimore or Miami are not grounds for ignoring their needs. And, to forestall objections, what I did above was to express an original-intent view, not to suggest that that need be what it’s construed as contrary to _Miller_. ---
**Author:** ![Random](https://avatars.discourse-cdn.com/v4/letter/r/57b2e6/32.png) [@Random](https://boards.straightdope.com/u/Random)\ **Post date:** [February 26, 2005, 1:14am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/66 "2005-02-26T01:14:20Z")
Although IAAL, I have not made a particular study of Second Amendment law. However, I’ve always found it interesting that, in my state at least, pretty much everyone between 18 and 45 is a member of the militia: > [@](#): > > (20 ILCS 1805/1) (from Ch. 129, par. 220.01) > Sec. 1. All able‑bodied citizens of this State and all other able‑bodied residents in this State who have declared their intention to become citizens of the United States, between the ages of 18 and 45, except such as are expressly exempted by the laws of the United States and the State of Illinois, shall be subject to military duty and designated as the Illinois State Militia. > (Source: Laws 1957, p. 2141.) Does this mean I have to surrender my large collection of assault rifles when I turn 45? ---
**Author:** ![Reeder](https://avatars.discourse-cdn.com/v4/letter/r/c6cbf5/32.png) [@Reeder](https://boards.straightdope.com/u/Reeder)\ **Post date:** [February 26, 2005, 1:36am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/67 "2005-02-26T01:36:49Z")
Aren’t these the sasme people who put out memos saying torture was ok? ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [February 26, 2005, 1:42am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/68 "2005-02-26T01:42:07Z")
I don’t know. Are they the exact same people? How about you find out and report back to us. ---
**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 26, 2005, 2:18am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/69 "2005-02-26T02:18:16Z")
> [@Airman Doors](#): > > I don’t know. Are they the exact same people? How about you find out and report back to us. In case you’re actually unaware of this, Attorney General Alberto Gonzales is GWB’s former White House Counsel and is indeed the same dude who authored the infamous [Torture Memo](http://www.dailykos.com/story/2005/1/5/1468/92518). As for the rest of your above questions, I don’t know what “holes” you think we should be looking for. A political appointee is promoting the policies of those who appointed him. There is no debate here. This is not a judicial decision, it’s a political policy decision. BFD. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 26, 2005, 2:28am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/70 "2005-02-26T02:28:48Z")
> [@Diogenes the Cynic](#): > > In case you’re actually unaware of this, Attorney General Alberto Gonzales is GWB’s former White House Counsel and is indeed the same dude who authored the infamous [Torture Memo](http://www.dailykos.com/story/2005/1/5/1468/92518). Authored? ---
**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 26, 2005, 3:00am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/71 "2005-02-26T03:00:17Z")
> [@John Mace](#): > > Authored? Yes, authored. [The January, 2005 memorandum](http://msnbc.msn.com/id/4999148/site/newsweek/) (warning: pdf) which stated that al Qaeda and Taliban prisoners should be exempt from the Geneva Convention was personally authored by Gonzales. He was responsible for overseeing and requesting [other](http://www.msnbc.msn.com/id/6733213/site/newsweek) memos and justifications for torture as well. > [@](#): > > So in July of 2002 the president’s chief counsel, Alberto Gonzales, convened his colleagues in his cozy, wood-paneled White House office. One by one, the lawyers went over five or six pressure techniques proposed by the CIA. One such technique, a participant recalls, was “waterboarding” (making a suspect think he might drown). Another, mock burial, was nixed as too harsh. A third, the open-handed slapping of suspects, drew much discussion. The idea was “just to shock someone with the physical impact,” one lawyer explained, with “little chance of bone damage or tissue damage.” Gonzales and the lawyers also discussed in great detail how to legally justify such methods. > [@](#): > > And partly out of the discussions in Gonzales’s office came the most notorious legal document to emerge from last spring’s Abu Ghraib interrogation scandal. This was an Aug. 1, 2002, memo—drafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzales—which provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was “specifically intended” constituted torture. Mere “cruel, inhuman or degrading” treatment did not qualify. Gonzales, who is a longtime friend of GWB and was his lawyer in Texas, was the pointman for the White House’s attempts to contrive legal justifications for torture and evasions of the GC. **Reeder** was absolutely correct in stating that Gonzales “put out a memo saying torture was ok.” You can read it yourself in my first link. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 26, 2005, 5:21am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/72 "2005-02-26T05:21:45Z")
> [@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”. But if we look around the world, we see a lot of “free countries” where the people do **not** have any constitutionally guaranteed right to keep or bear arms. (And in some of those countries, the government evinces significantly more respect for personal rights and liberties than the U.S. government does; and in practically all of them, the homicide rate is drastically lower.) It would appear that the authors of the Second Amendment were fundamentally mistaken on that point. ---
**Author:** ![Reeder](https://avatars.discourse-cdn.com/v4/letter/r/c6cbf5/32.png) [@Reeder](https://boards.straightdope.com/u/Reeder)\ **Post date:** [February 26, 2005, 5:25am UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/73 "2005-02-26T05:25:11Z")
> [@Airman Doors](#): > > I don’t know. Are they the exact same people? How about you find out and report back to us. ’ Exact same people? Same people that let the memos out. Or do you think the executive branch doesn’t control the Justice dept.? ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [February 26, 2005, 12:27pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/74 "2005-02-26T12:27:43Z")
> [@Diogenes the Cynic](#): > > In case you’re actually unaware of this, Attorney General Alberto Gonzales is GWB’s former White House Counsel and is indeed the same dude who authored the infamous [Torture Memo](http://www.dailykos.com/story/2005/1/5/1468/92518). In case you’re unaware of this, he wasn’t the Attorney General in 2004 when this was authored. Alberto Gonzalez has bupkis to do with this. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [February 26, 2005, 1:14pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/75 "2005-02-26T13:14:09Z")
Like I said before, AD, I think you overcommitted on this one. While I agree with the policy and its interpretation of the 2nd Amendment I don’t believe that the AG’s office issuing an opinion truly governs the constitutional issues involved. Instead, as others have said, it’s merely stating the rules under which this particular administration will function. It has no ability to control how subsequent administrations will function. Ergo, it’s not settling, in any way, the constitutional issues. And, as I said before, what’s their motivation for issuing said opinion? It’s not like people didn’t know the Bush administration was going to take that tactic. That’s like expecting we’d be surprised if they issued a memorandum saying ‘Tax cuts = Good’. It’s a non-story. And because it’s a non-story I believe that’s evidence that this issuance has a political motivation, however small. It gives a little shore-up to that part of the party that views gun rights as it’s primary interest in voting behavior. That ‘on target’ enough for you? ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [February 26, 2005, 1:27pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/76 "2005-02-26T13:27:19Z")
> [@Jonathan Chance](#): > > Like I said before, AD, I think you overcommitted on this one. Perhaps. > [@](#): > > While I agree with the policy and its interpretation of the 2nd Amendment I don’t believe that the AG’s office issuing an opinion truly governs the constitutional issues involved. Instead, as others have said, it’s merely stating the rules under which this particular administration will function. It has no ability to control how subsequent administrations will function. Ergo, it’s not settling, in any way, the constitutional issues. And as I said, barring a review by the Supreme Court this is the iunterpretation that will prevail. Since the SCOTUS has been unwilling to look at this for 60 years I’m fine with that. > [@](#): > > And, as I said before, what’s their motivation for issuing said opinion? It’s not like people didn’t know the Bush administration was going to take that tactic. That’s like expecting we’d be surprised if they issued a memorandum saying ‘Tax cuts = Good’. It’s a non-story. But it IS a story, because no matter who the President has been, this is (AFAIK) the first time this interpretation has been the policy of the government since at least 1934. > [@](#): > > That ‘on target’ enough for you? Closer than the rest, yes. But I’d still like to see someone try to argue the points in the memo, if they can. I didn’t see any holes in the research, so I’d like to see someone try to poke some holes rather than try to divert the issue to politics. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 26, 2005, 1:41pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/77 "2005-02-26T13:41:57Z")
> [@BrainGlutton](#): > > But if we look around the world, we see a lot of “free countries” where the people do **not** have any constitutionally guaranteed right to keep or bear arms. (And in some of those countries, the government evinces significantly more respect for personal rights and liberties than the U.S. government does; and in practically all of them, the homicide rate is drastically lower.) It would appear that the authors of the Second Amendment were fundamentally mistaken on that point. No, because they wrote a guarantee of a right and stated the underlying reason for it, which was arguably true for their time and place. It’s not a proposition in logic but an assertion of a right and the reason it’s guaranteed. They might equally have said, “An informed public being essential to the operation of democracy, the freedom of the press shall not be abridged.” Whether the absolute in the first phrase is valid, it provides the reason why they chose to make the guarantee in the independent clause. “Legislative intent” clauses are quite common in statutes; they guide the courts in understanding what the purposes of the legislature in passing a given law were, and hence can shape the courts’ construction of a disputed passage in the law. They’re virtually universal in Federal statutes, since Congress has only a limited set of powers within which to legislate, though it’s supreme in the field within that set. For a Congressional statute to be constitutional, it **must** have some nexus with the Constitutional grants of power. DOMA, for example, is alleged to draw its validity from Article IV’s grant to Congress of power to establish a standard means of proving full faith and credit claims. But against what can a legislative intent attached to a Constitutional provision be tested? Can a court say, “Well, the reason they gave isn’t valid, so we’re going to ignore that part of the Constitution”? The answer here, I think, is obvious. ---
**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 26, 2005, 2:48pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/78 "2005-02-26T14:48:26Z")
> [@Airman Doors](#): > > And as I said, barring a review by the Supreme Court this is the iunterpretation that will prevail. Since the SCOTUS has been unwilling to look at this for 60 years I’m fine with that… Incorrect. This is not a judicial decision. What part of that do you not understand? This is Executive political policy and nothing more. This policy will “prevail” only until the next president institututes his own policy. Do youy understand the difference between the Executive branch and the Judicial branch? Do you understand that that the Executive branch does not make constitutional rulings? Do you understand that every president sets his own policy and that there is nothing binding or permanent about it? Where do you get the idea that this is “the interpretation that will prevail?” Since when do Executive policies have the weight of judicial decision? ---
**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 26, 2005, 2:50pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/79 "2005-02-26T14:50:36Z")
> [@Airman Doors](#): > > In case you’re unaware of this, he wasn’t the Attorney General in 2004 when this was authored. Alberto Gonzalez has bupkis to do with this. So it was Ashcroft? And that’s supposed to make it _less_ of a joke? ---
**Author:** ![AZCowboy](https://avatars.discourse-cdn.com/v4/letter/a/97f17d/32.png) [@AZCowboy](https://boards.straightdope.com/u/AZCowboy)\ **Post date:** [February 26, 2005, 4:09pm UTC](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868/80 "2005-02-26T16:09:34Z")
> [@Airman Doors](#): > > 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. The whole “militia” argument? Don’t think so. As **Minty** notes, _US vs Miller_ considered the relevence of the militia phrase in a manner unrelated to whether the right was an individual or collective right. Further, the quoted portion of the OP clearly limits the scope of the arguments presented in the memo from having any practical relevence whatsoever. A memo arguing that some amorphous right is an “individual” right, but not addressing any particular limitations as to what that right confers, seems to be an exercise in mental masterbation - of no particular use or practical relevence. If you believe otherwise, why not put forward a specific case, actual or hypothetical, and we can debate how the position taken in the memo applies? [Previous page](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868.md?page=3) [Next page](https://boards.straightdope.com/t/the-department-of-justice-2nd-amendment-upholds-individual-not-collective-rights/291868.md?page=5)