COLUMN: The Second Amendment protects rights

Don Norvell

I love the Second Amendment, but I hate how it is written: “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.”

There is no doubt that semantics impedes the average person from understanding the amendment. Many misconstrue the Amendment to only protect the National Guard.

The Aug. 24, 2004, Memorandum Opinion for the Attorney General completely destroys such misconceptions (

Textual analysis in the Memorandum begins with the phrase “right of the people.” The Memorandum astutely observes that the word “right” is always understood to be an individual right when used in the First, Fourth, Sixth, Seventh and Ninth Amendments. The state and federal governments have “power” and “authority” but never “rights” within the Constitution.

To reconcile the words “people” and “militia,” one must note that the several states had militia laws prior to the Amendment, which establish that all able-bodied, white men between certain ages were members of the militia simply by living in the state. As understood by the first Congress, the words “militia” and “people” were interchangeable. The subsequent removal of race and sex discrimination makes this true even by modern standards.

But why is the militia clause even there?

This “justification clause” is a stylistic quirk the framers inherited from the British. The Memorandum cites UCLA law professor Eugene Volokh who demonstrates that such clauses are legally inoperative in The Commonplace Second Amendment (

Volokh cites examples from 10 of the original 13 state constitutions (and some of the first new states) that justify debates in the state legislature, religious freedom, presumption of innocence, protection against search and seizure, etc.

No one would ever claim that religious freedom has expired because the justification seems obsolete. Not even British courts afforded such power to justification clauses according to the Memorandum.

If you are not fully convinced that the Second Amendment protects individuals, please, read the full text of my sources.

If that is not enough, here is the kiss of death.

While the above analyses are supported by impeccable scholarship, they suffer the fatal flaw that liberals believe the Constitution is a “living document” that magically rewrites itself whenever some activist judge says so. No historical knowledge is required.

That is why I was most pleased while rereading the Ohio Constitution last week to find that Article 9 section 1 reads: “All citizens, residents of this state, being 17 years of age, and under 67 years, shall be subject to enrollment in the militia and the performance of military duty-“

Regardless of how long it has been since the militia was last called, all Ohioans from 17 to 67 are still members and do have the right to bear arms.

Even by liberal standards.

Don Norvell is a member of the National Rifle Association, a physics graduate assistant and a columnist for the Daily Kent Stater. Contact him at [email protected].