December 17, 2004
Today the United States Department of Justice today released the most thorough analysis of the Second Amendment ever conducted by the Executive Branch of the United States government. The title of the 93 page report, with 437 footnotes, is "Whether the Second Amendment Guarantees an Individual Right." As the report's subtitle states, "The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias."
The report cites the Second Amendment historical research of David B. Kopel seven times. (See notes 33, 90, 290, 342, 403, 428, 437 and accompanying text.)
"It isn't about Duck Hunting: The British Origins of the Right to Arms" (book review of Joyce Malcolm's To Keep and Bear Arms), 96 Michigan Law Review 1333 (1995).
"The Second Amendment in the Nineteenth Century," 1998 BYU Law Review 1359.
"Tench Coxe and the Right to Keep and Bear Arms in the Early Republic," 7 William and Mary Bill of Rights Journal 347 (1999). With Stephen Halbrook.
Although Attorneys General in the Nixon and Clinton administrations had adopted the position that the Second Amendment does protect individual rights, Kopel's research has shown that Attorneys General from the administrations of Andrew Jackson, Abraham Lincoln, Andrew Johnson, Benjamin Harrison, Franklin Roosevelt, and Ronald Reagan recognized an individual Second Amendment right. Thus, the current Bush administration position is very much within the mainstream of historical policy. However, the new DOJ memo is much more thorough and persuasive than anything the Department of Justice has ever produced on the subject.
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