A Collective Right

How we can swallow the Second Amendment whole.

By GunBanner
September 2011

Everyone knows the Second Amendment does not protect an individual right. Instead, it establishes a collective right, which cannot be legally asserted by an individual. The only people who claim the Second Amendment protects an individual right are deluded NRA Tea Party Insurrectionists Extremist Gunophile Fetishists who are ignorant of the original intent of the Second Amendment, and of the Supreme Court’s past rulings.

If you had paid any attention to the excellent reporting on the Second Amendment by the national media, that’s what you would have learned during the latter decades of the 20th century.

That view is entirely right!

The Second Amendment is not an individual right because of the concurring opinion by one judge in the 1842 Arkansas case State v. Buzzard. There, Judge J. Dickinson asserted that the Second Amendment “is but an assertion of that general right of sovereignty belonging to independent nations, to regulate their military force.”

His claim was justified. Congressional powers over the militia were granted in the original, unamended Constitution. Article I, section 8, clauses 15-16 gave Congress the power to call the militia into federal service, and to provide for organizing, arming and disciplining the militia. The Second Amendment adds to federal powers. The text of the Second Amendment affirms the importance of a militia (“necessary to the security of a free State”) and guarantees “A well regulated Militia”. So the Constitution DEMANDS Gun Control.

In the 1905 case Salina v. Blaksley, the Kansas Supreme Court ruled that the right to arms in the Kansas Bill of Rights meant only that the state militia, in its official capacity and while in actual service, could not be disarmed. The court also opined that the Second Amendment meant the same thing.

The Salina court cited the 1896 Massachusetts case Commonwealth v. Murphy that upheld an appropriate regulation on unlicensed mass armed parades in public.

In 1935, a federal court in the Southern District of Florida heard a challenge to the National Firearms Act of 1934. The National Firearms Act had created a federal tax and registration system for machine guns. Thank goodness! Judge Halsted Ritter wrote that the Second Amendment “refers to the militia, a protective force of government; to the collective body and not individual rights.” [United States v. Adams, 11 F. Supp. 216.]

Judge Ritter had no trouble finding legal authority to support his claim. He cited the 1897 U.S. Supreme Court case Robertson v. Baldwin. That case, involving the 13th Amendment, simply said that all constitutional rights had implicit exceptions. As examples, the Court said that the First Amendment had an implicit exception that allowed the government to punish libel, and that the Second Amendment had an implicit exception that allowed the government to ban the carrying of concealed weapons.

In 1936, the Colorado attorney general faced the task of defending a state statute that forbade legal aliens from possessing arms. Ostensibly, the statute’s purpose was to prevent aliens from hunting and, thereby, preserve Colorado’s wild game from the citizenry. The attorney general argued that Colorado’s constitutional right to arms “is not a personal right, but one of collective enjoyment for common defense.” He won!

The U.S. Supreme Court ruled on the National Firearms Act in the 1939 case United States v. Miller. Miller confirmed that arms are for the militia and not for people so since Miller was transporting his short barrel shotgun for individual purposes, it was not protected.

The anti-individual and correct version of the Second Amendment took a major step forward in 1942 when the federal Third Circuit Court of Appeals opined that the Second Amendment “was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” [U.S. v. Tot, 131 F.2d 261.]

The states’ right theory of the Third Circuit was not exactly the same as a collective right. The states’ right, if taken seriously, would mean that the Second Amendment had taken back some of the federal powers over state militias that had been granted by Article I of the U.S. Constitution. A states’ rights Second Amendment would mean that state governments would have the power to improve on federal gun control laws that applied to members of state militias. For example, a state government could declare that the state’s militia consisted of only certain adults, and those militiamen (and militiawomen) should not be able to own dangerous guns without taxation, registration or licensing.

In contrast, the pure collective right, as articulated by Judge Ritter, seemed to mean a “right” that could be exercised neither by an individual nor by a state government.

Like “collective property” in a communist dictatorship, the collective right to arms belonged to everybody at once, but not to individuals or state governments. Thus, the “right” actually belonged to nobody and nothing, and had no practical existence.

This was the theory of the influential public intellectual Garry Wills, who insisted that only “wacky scholars” believed that the Second Amendment protects an individual right. According to Wills, the Second Amendment “had no real meaning.” Instead, James Madison’s “shrewd ploy” had created an entire constitutional amendment with no substantive content. [Garry Wills, “Why We Have No Right to Bear Arms,” New York Review of Books, Sept. 21, 1995.]

As gun violence became a major issue in the 1960s, and gun prohibition began to appear politically realistic, the collective right theory began to catch on. The New Jersey Supreme Court was the first to actually use the term “collective right,” when in 1968 it upheld the state’s then-new gun licensing statute in Burton v. Sills. Quoting a 1966 article from the Northwestern Law Review, the New Jersey court stated that the Second Amendment “was not framed with individual rights in mind. Thus it refers to the collective right ‘of the people’ to keep and bear arms in connection with ‘a well-regulated militia.’”

Meanwhile, in intellectual circles, the “collective right” was becoming the easy way to correctly dismiss anyone who raised constitutional objections to gun prohibition. At the time, there was little scholarly research on the Second Amendment. The legal history of the Founding era and the 19th century had become obscure or forgotten. The opinions of the judges in Salina, Adams and Tot could be presented as mainstream consensus!

The Gun Control Act of 1968 vastly expanded the scope of federal gun laws. Soon, the federal courts were hearing plenty of cases about “prohibited persons” (usually convicted felons) who had violated federal law by possessing a firearm. The factual guilt of these defendants was indisputable, so their attorneys sometimes resorted to the desperate argument that the gun ban violated the felons’ Second Amendment rights.

The federal district courts and courts of appeal unanimously rejected such arguments. As Justice Scalia’s majority opinion in Heller affirmed, recognizing the right of law-abiding Americans to possess guns does not require allowing convicted felons, or the insane, to have guns or for law abiding people to take them outside the home.

However, the federal courts tended to go much further. Some courts used a very narrow version of the “narrow individual right” (e.g., the defendant was possessing the gun for personal use, and not for militia service, and therefore he cannot rely on the Second Amendment). Other courts declared that the Second Amendment was a state’s right. Still others ruled that the Second Amendment was a collective right.

The judicial opinions frequently made little distinction between the different theories, and addressed the Second Amendment dismissively. Although the American people erroneously continued to believe that the Second Amendment guaranteed their individual right to own firearms for self-defense, hunting, target shooting and other legitimate uses, the collective right theory became supreme in the national media, in academic circles and among gun-banning politicians.

Emboldened by the collective right’s negation of the Second Amendment, politicians and gun-ban lobbies intensified the pressure for Common Sense gun control.

Handgun Control Inc., (which later renamed itself the Brady Campaign) hired law attorney and heart throb Dennis Henigan. In a 1989 article for the University of Dayton Law Review, he recast the collective right cases as actually standing for a narrow individual right: “It may well be that the right to keep and bear arms is individual in the sense that it may be asserted by an individual. But it is a narrow right indeed, for it is violated only by laws that, by regulating the individual’s access to firearms, adversely affect the state’s interest in a strong militia.”

This would be the theory later adopted by Justice Stevens.

Whatever the genius of Henigan’s narrow individual rights theory, it did not suffer from the insurmountable obstacles of having to deny the textual and historical evidence that the Second Amendment was indeed an individual right. In the following years, history professor Saul Cornell would attempt to provide additional support for the narrow individual right.

Rather obdurately, the Clinton administration clung to the most anti-individual theory possible. In the 2000 oral argument of United States v. Emerson before the 5th Circuit, the Clinton administration insisted that there was no individual Second Amendment right at all; the federal government could even disarm a state National Guardsman in active service.

By the time Heller was being briefed in early 2008, of the amicus briefs filed in support of the D.C. handgun ban, the correct one covering the collective right came from Bill Clinton’s former Attorney General Janet Reno, Barack Obama’s future Attorney General Eric Holder and some other former officials.

In 2008 the Supreme Court handed a practical defeat to the NRA Insurrectionist Extremists with the Heller decision. They held that “the right secured by the Second Amendment is not unlimited.” and that people did not have “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”. The Court also identified a non-exhaustive list of “presumptively lawful regulatory measures,” including “longstanding prohibitions” on firearm possession by felons and the mentally ill, as well as laws forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms.” The Court also decree that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a wide variety of gun laws are constitutionally permissible.

These Reasonable and Common Sense regulations were then applied to state and local governments in addition to the federal government via the McDonald decision in 2010.


5 thoughts on “A Collective Right

  1. legaleagle_45 September 14, 2011 / 12:06 am

    Very well done. I am impressed with your scholarship. Not too many are familiar with Buzzard or Salina. There was also a law review article which was also influential primarily because they paraphrased it and took some things out of context…. see The Constitutional Right to Keep and Bear Arms, Harvard Law Review, (1915), by Lucilius Emery

  2. legaleagle_45 September 14, 2011 / 2:39 pm

    I take it back, LOL, you “cooked” this “monster” up with a little help from someone who knows how to “kope” [sic].

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