The Wall Street Journal
May 10, 2002

The Radical Amendment
By EUGENE VOLOKH

http://online.wsj.com/article/0,,SB1020986720801741120.djm,00.html

Those dangerous radicals John Ashcroft and Ted Olson are at it again. The
Second Amendment, the Justice Department has just asserted in two Supreme
Court briefs, protects an individual right. People like you and me do indeed
have the right to keep and bear arms.

This, a lawyer representing the antigun Violence Policy Center opined, is a
departure from what was "the government's position for more than 60
years" -- and an illegitimate one, because "people who happen to be in
office temporarily shouldn't use the office to promote their personal
views." Unnamed "scholars and gun-control advocates" called this (according
to the Los Angeles Times) a "'radical' shift in position" that "alarmed"
them.

Our radical Justice Department, though, turns out to be in good company.
Supreme Court Justice Joseph Story, probably the second most respected
19th-century justice -- after the great John Marshall -- and the author of
the leading early-1800s constitutional-law treatise, also took the view that
the right belongs to "the citizens," not the states.

Same for Michigan Supreme Court Justice Thomas Cooley, the leading
constitutional-law commentator of the late 1800s. William Blackstone, the
leading late-1700s British legal commentator, and a major influence on the
Framing generation, saw even the much narrower English right to have arms as
an individual right.

Framing-era documents confirm this understanding, as does the text itself.
"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
Second Amendment says. The right belongs to "the people," not the states or
the National Guard.

The reference to the "Militia" only reaffirms this. From the Militia Act of
1792 to the current Militia Act (enacted in 1956), the "militia" has meant
pretty much the adult able-bodied male citizenry age 17 to 45. Following the
Supreme Court's sex equality decisions of the 1970s, it almost certainly
includes women, too. The two clauses both stress the Framers' commitment to
keeping the citizenry -- not the states or small state-selected groups --
armed.

In fact, from the late 1700s to the early 1900s, the individual-rights view
of the Second Amendment was the nearly unquestioned interpretation.
Virtually no court or commentator of that era reasoned that the Second
Amendment protects the rights of states. Attorney General Ashcroft and
Solicitor General Olson are hardly promoting their personal views. They're
promoting the views of the Framers, and of the American legal system
throughout most of American history.

The individual-rights view is also in good modern company. In the 1986
Firearms Owners' Protection Act, Congress specifically reaffirmed "the right
of the citizens to keep and bear arms." In 1960, those noted conservatives
(or is it "radicals"?) John F. Kennedy and Hubert H. Humphrey both asserted
their support for the right of each citizen to keep and bear arms. Some
leading liberal constitutional scholars today likewise take this view.

Nor has the Supreme Court held the contrary. The 1939 U.S. v. Miller
decision did say that the right extends only to arms that are related to the
militia. But it also specifically stressed that "militia" meant "all males
physically capable of acting in concert for the common defense," and that
ordinarily "these men were expected to appear bearing arms supplied by
themselves."

So the Ashcroft Justice Department may be going against the views of past
Justice Departments, and of most federal courts of appeals, which have
indeed endorsed the states'-rights view of the Second Amendment. But it's
returning to a much broader consensus: the view, adopted throughout most of
the nation's history, that the "right of the people to keep and bear arms"
is as individual a right as "the right of the people to be secure . . .
against unreasonable searches and seizures" or "the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances."

The right wouldn't be absolute, just like other rights aren't absolute.
Forty-four of the 50 states have right-to-bear-arms provisions in their
bills of rights, and the overwhelming majority are clearly individual
rights. But state courts have nonetheless upheld many gun controls, such as
bans on felons possessing guns, or restrictions on certain types of guns
that are particularly likely to be used by criminals.

Nonetheless, the right would meaningfully protect private gun ownership. The
District of Columbia gun ban, for instance, which prohibits virtually all
handguns and requires even rifles and shotguns to be kept locked and
unloaded, may well be struck down. This law was upheld under a
states'-rights theory by the D.C. Court of Appeals in the late 1980s. But a
new challenge in federal court might lead to the law's invalidation.

And the right, if firmly accepted by the courts, may actually facilitate the
enactment of modest gun controls. Today, many proposals, such as gun
registration, are opposed largely because of a quite reasonable fear that
they'll lead to D.C.-like gun prohibition.

But if the courts can make clear that the Constitution takes such a
prohibition off the table, this slippery slope concern may become less
serious. And some people may thus become willing to support compromise
legislation, precisely because the core of the right will be protected --
just as the radical and alarming Bill of Rights commands.

Mr. Volokh is a professor of constitutional law at the University of
California, Los Angeles.

That radical and alarming bill of rights [:D]

The Bill of Rights is radical and alarming only if you're a despot.

If Antis were right in their commie Demoscumrat interpretation of the Second Amendment, right from the beginning only the government would have been allowed to posses firearms, thus making the need for a Second Amendment unnecessary in the first place. Am I correct?

The wording is kind of telling.  Weren't conservatives called "reactionaries" and liberals "radicals" once upon a time?  I guess now that they have become entrenched (or so they think) and are now the establishment, that anything differs from their views has become "radical"