Challenging the constitutionality of a federal firearms law on the basis that it violated the individual right to keep and bear arms
would drag the Department of Justice into a battle that it is unwilling to substantively wage, despite its musings to the contrary.
The Second Amendment denies the power to the federal government to infringe upon the right to keep and bear arms
. Note that the right speaks only of keeping and bearing-- it is not a right to murder, to threaten or injure others, to hunt or to have government-funded shooting ranges.
The second category of cases, however, seem to dominate the records of the courts--and unfortunately, when the courts hear arguments for the right to keep and bear arms
from lawyers for bad guys, it seldom ends well for either the defendant, or the right to keep and bear arms
I asked Joyce Lee Malcolm, author of To Keep and Bear Arms
: The Origins of an Anglo-American Right, whether she was aware of such a prohibition during the 17th and 18th centuries.
Joyce Lee Malcolm (email@example.com), a professor of history at Bentley College and a senior fellow in the MIT Security Studies Program, is the author of To Keep and Bear Arms
: The Origins of an Anglo-American Right (Harvard).
In analyzing the section of the Second Amendment that states, "A well regulated Militia, being necessary to the security of a free State," the OLC shows that this wording was never intended to mean that only people in an organized military group have the right to keep and bear arms
. In making its case, the OLC made several points: the term "militia" at the time of the Founding was "the entire population of able-bodied male citizens"; a preface to an amendment, of which this wording is an example, cannot logically be interpreted to take away the right that is protected by the Amendment; and the Second Amendment was meant to secure people in their right to possess guns for individual self-defense.
In the law journals if not yet in media of mass circulation, the Second Amendment has captured the attention of scholars, including some of the most eminent and respectable in the field, who find, somewhat to their own surprise as they reflect upon the matter for the first time, that the private right to keep and bear arms
is very much in character with the Bill of Rights as a whole and with the thinking of the Framers of the Constitution.
"For too long," Levinson writes, "most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members." He urges his fellow academics to take seriously the idea of a right to keep and bear arms
as a check against tyranny.
That view was plain to Supreme Court Justice Joseph Story, who personally knew several of America's Founding Fathers: "The right of the citizens to keep and bear arms
had justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
Simply put, the administration's position supporting an individual's right to keep and bear arms
is conditional, subject to whatever "restrictions" the government may establish.
Those layers include federalism, local police forces, and the right to keep and bear arms
Although big journalism's misleading coverage of this issue can be partly explained by a combination of ignorance and arrogance, it seems clear that hostility toward the right to keep and bear arms
has played an important role.