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Shotgun News, March 1, 2005, pp. 20-21
The Department of Justice Issues an Opinion
You may recall that back in May of 2001, U.S. Attorney General Ashcroft wrote a letter to NRA-ILA Executive Director James Jay Baker declaring that the Second Amendment protects an individual right.1 While this was a very nice letter, it does not carry any real weight--it is just a personal opinion of the Attorney General. That, plus 75 cents, would get you a cup of coffee.
What does carry a bit more weight, however, is a memorandum opinion recently published by the Department of Justice's Office of Legal Counsel. (The date on the opinion is August 24, 2004, but only recently did they put it up on their website.) It concludes, "that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views."2
Unlike Ashcroft's letter from several years ago, a formal opinion from the Office of Legal Counsel does carry some weight. It is analogous to what happens when a state attorney general issues a formal opinion on a point of law. The courts are not obligated to follow a state attorney general's opinion, or that of the OLC, but in practice, these documents tend to be pretty influential--or so says Professor Eugene Volokh, who teaches law at UCLA Law School.3
Those who have read much of the scholarly work on the history of the Second Amendment probably will not find a lot of surprises in the OLC's opinion, but it does a good job of summarizing not only the historical arguments, and the existing decisions of the courts, but also the most recent scholarly work on the subject. (I am pleased to see that my book For the Defense of Themselves and the State appears in footnote 33 as part of a list of published works: "the preponderance of modern scholarship appears to support the individual-right view.")
So what does this OLC opinion do for us? No court is obligated to follow it, and I expect that quite a number of judges will simply ignore it, because it would put some significant barriers in the way of restrictive gun control laws, at least with respect to federal laws, and perhaps even for state laws. I expect that some judges will be quite happy to cite the OLC opinion because they find gun control absurd, and will be quite happy to have a serious work of legal scholarship to use. There will even be a few judges who will actually follow the OLC opinion not because they oppose gun control, but because they take seriously their oath to uphold the Constitution. (Okay, I'm not expecting this to be a large number of judges, but they are out there.)
Let me emphasize that just because we have a bunch of scholarly work on our side does not mean that gun rights activists can relax! There is a cute saying that describes the four boxes with which we protect our rights: soap; ballot; jury; and cartridge, and in that order. We first attempt to persuade our fellow Americans to respect our rights. One upon a time, public orators of the left, not yet owners of newspapers and television networks, would use a soap box as a platform from which to harangue the masses. If persuading the public fails, we use the ballot box, and vote for candidates who are most likely to protect our rights. The government may still pass oppressive laws, out of ignorance, lust for power, or stupidity. In the jury box, we can protect those who are victims of bad laws by refusing to convict. If worst comes to worst, those suffering under an oppressive government do what John Locke described in the Second Treatise of Civil Government. Those "who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven."4 The "appeal to heaven" slogan often appeared on Revolutionary flags. It meant that you were rising in rebellion, and hoped that God was on your side.
Each of these steps is a bit more risky than the last. Persuading our fellow Americans to respect our rights is really not that expensive, if every gun owner makes a serious and honest attempt to spread the word. I suspect that most Americans who support gun control do so because no one has ever made a serious attempt to persuade them of the harm that it will cause. I was astonished when I lived in California at how many people I talked to had never met an open opponent of gun control.
Voting is a little more risky. I hope that this won't be a surprise to you--but politicians sometimes lie to us. They claim to be on our side, go hunting just before the election--and yet still support restrictive gun control laws. Even a politician who is genuinely on our side will sometimes cut a backroom deal that injures our right to keep and bear arms. Voting is better than not voting, but you can still find yourself very disappointed the morning after.
Fixing the problem through the courts is even more dangerous than fixing it through elections. One resolute member of a jury may sway the rest of the jury to bring in a not guilty verdict--but often as not, all that you will accomplish is a hung jury. This means that the prosecution can retry the defendant. The next jury that hears the case may decide that a ten-year prison sentence for possessing an unregistered handgun is perfectly reasonable, and convict an otherwise law-abiding person.
Let me emphasize a very important point. There is no question in my mind that members of a jury have a right to judge both the facts of the case, and the validity of the law. We had such a right at the founding of the Republic. However, judges take a pretty dim view of "jury nullification." If you tell a judge that you will not find a person guilty because you find the law in question abhorrent, you are not going to get on the jury. If you do not tell the judge that you feel this way--and you succeed in persuading the jury to come around to your side--you may well go to prison. I have read of a woman in Alaska who neglected to tell the judge about her moral opposition to taxes--and then persuaded the rest of the jury to find the defendant innocent. The government could not retry the defendant in that case because of double jeopardy--but the juror who swayed the rest of the jury was convicted of perjury for not telling the full truth to the judge. Do not lie if you are being considered for jury duty; do not shade the truth.
As bad as the situation is when you, as a juror, attempt to block enforcement of a tyrannical law, relying on judges is even more risky--especially with respect to gun control laws. For reasons that I do not completely understand, judges are even more sympathetic to gun control than the general population. Even judges who are generally conservative will often make an exception for gun control measures. Judges sometimes surprise and please gun owners by their willingness to obey the Constitution, but trusting judges to do this a regular basis is a very high risk maneuver, especially because there is only one box left to pull out if we lose in the court system: the cartridge box.
I've written before about how incredibly risky revolution is as a mechanism for righting wrongs. The American Revolution is rather remarkable in modern history. If you want a more typical example, look at the French Revolution. The guillotines were being used so regularly to deal with political dissidents that by the end of the day, it sometimes took several drops of the blade to take off someone's head. (They sharpened the blades every night.) Throughout Latin America, revolutions were more likely to replace one set of thugs with another. We were really lucky--and we should consider how much more immoral our population is today, compared to 1776. If the point is reached where we have to make what Locke called, "the appeal to heaven," we need to be very sure that we have done everything we can with the soap, ballot, and jury boxes.
1National Rifle Association Institute for Legislative Action, "AG Ashcroft Confirms Second Amendment Protects Individual Right ," 8:21 [May 21, 2001], http://www.nrawinningteam.com/0105/ashcroft.html, last accessed January 18, 2005.
2U.S. Department of Justice, Office of Legal Counsel, "Whether the Second Amendment Secures an Individual Right," August 24, 2004, , last accessed January 18, 2005.
3Eugene Volokh, "The Justice Department's Office of Legal Counsel," Volokh Conspiracy, December 17, 2004, http://volokh.com/archives/archive_2004_12_14.shtml, last accessed January 18, 2005.