As appeared in The Atlanta Journal & Constitution, May 13, 2002

by Phil Kent

As amazed as many gun control advocates and liberal legal scholars seem to be, the fact remains that the recent legal brief footnote from U.S. Solicitor General Ted Olson recognizing that the Second Amendment protects the right of individuals to own firearms is less a radical departure from constitutional analysis than a return to the original intent of the Founding Fathers.

In fact, the entire point of the Bill of Rights is to prevent the government from infringing on individual rights -- speech, voting, press, religion, fair trial, private property and, yes, gun ownership.

The Second Amendment, ground zero for millions of Americans on both sides of the gun control issue, is one of the simplest amendments. "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 so-called "corporate" right of the militia is, in fact, no right at all but rather a recognition that the state militias and military would play a role in national security.

The right to bear arms, on the other hand, is an individual right that was essential to the wary early Americans. British soldiers, who garrisoned themselves in private colonial homes, sought to disarm the general populace. The citizen army of the American colonies, made up of able-bodied men, relied on individual gun ownership to wage the revolution. According to constitutional historians, it is beyond comprehension that the U.S. Constitution would have been ratified without the Bill of Rights, which includes the Second Amendment.

The Founders' mindset is unequivocal on the issue of individual gun ownership. Consider the well-documented statements: "A free people...ought to be armed"(George Washington); "No free man shall ever be debarred from the use of arms"(Thomas Jefferson); "To disarm the people is the best and most effective way to enslave them"(George Mason); and, "There is an advantage of being armed, which the Americans possess over the people of every other nation...notwithstanding the military establishments of the several kingdoms of Europe"(James Madison). A historically accurate read of the Second Amendment must include the intent of the framers to protect individual gun ownership.

The U.S. Supreme Court's view since the 1939 U.S. v. Miller decision that the Second Amendment protected only those rights that relate to a "well-regulated militia" has been unchallenged since the Roosevelt administration. U.S. Attorney General John Ashcroft's letter to federal prosecutors outlining a more recent decision by a federal appeals court in New Orleans, which was attached to Olson's brief, states that the "balance struck" in the appeals court's decision "generally reflects the correct understanding of the Second Amendment." That letter, and Olson's reference to it, have sparked an unnecessary controversy.

Ashcroft's "position" that individual gun ownership is protected under the Second Amendment is a qualified understanding of the right to keep and bear arms. In keeping with recent court decisions and historical analysis of the U.S. Constitution, Ashcroft makes clear that individual gun ownership is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

Owning a gun, like voting, voicing an opinion and practicing religion, is not without constitutional limits.

Despite the opinion of the U.S. Supreme Court, at no time since 1939 has the individual right to keep and bear arms been abridged by wholesale government policy. Ashcroft's accurate constitutional reading will help secure that right from those who would willingly abridge it.

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