Individual Right to Keep and Bear Arms

The US Department of Justice has made available a 93 page Memorandum Opinion for the Attorney General fully analyzing and confirming that the Second Amendment of the US Constitution secures an individual right, not a right of the state. It is entitled, 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. The internal opinion is addressed to the Attorney General and fully analyzes the private, individual right issue. This furthers the position of the Department first taken when Bush took office.

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." The memorandum opinion of the Assistant Attorney General explains, "[y]ou (the Attorney General) have asked for the opinion of this Office on one aspect of the right secured by this Second 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. This memorandum memorializes and expands upon advice that this Office provided to you on this question in 2001…. Most recently, in a 2001 memorandum to US Attorneys, you endorsed the view that the Second Amendment protects a "right 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…. As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a state or a quasi-collective right restricted to those persons who serve in organized militia units..."