An individual right

I didn’t realize it but while I was making fun of Say Uncle he was doing battle against the forces of evil (well… the collectivists anyway which are evil in my book) that took issue to some things I said here. He and I were both called on for dismissing the possibility the 2nd Amendment refers to a collective right. Although I’m sure he is right to say I have covered it in adequate detail it hasn’t been done as the primary focus of a blog posting with all the attention that would entail. I remedy that now in an attempt at forgiveness for not jumping to his side earlier in his battle against the collectivists.

One of the arguments made was that “better minds” had concluded the 2nd Amendment referred to a collective right. Argument by authority is not entirely trustworthy yet it certainly can provide a good starting point. To that end I quote some authorities on constitutional law:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of safety hazard don’t see the danger of the big picture.  They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.

Alan Dershowitz
Quoted in Dan Gifford
The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason
62 TENN. L. REV. 759 (1995)

And from perhaps an even greater authority:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one:  Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state.  But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit.  Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias.  That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by the Fourteenth Amendment against state or local government action.

Laurence Tribe
American Constitutional Law 902 n. 221 (2000)

[Update July 2008:]

From the highest authority–the Supreme Court of the United States in D.C. v. Heller:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

All nine justices agreed that it is an individual right. It is not a “collective right”.

[End update.]

A lesser authority:

…we conclude 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. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.

U.S. Department of Justice

Keep in mind when reading the following that states and other government bodies are created and given powers by their constitutions. Hence if the object of the 2nd Amendment right were the states then the following makes no sense to say it does not depend on the Constitution for it’s existence.

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Chief Justice Morrison Waite
U.S. Supreme Court
U S v Cruikshank
92 U.S. 542 (1875)

But as I said argument by authority is not entirely to be trusted so lets apply some other tests.

  • Does it make sense for the 2nd Amendment to refer to a collective/states right when nearly all of the states that have a right to keep and bear arms clause make it clear they refer to it as in individual right? See for example the Washington State Constitution: “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”
  • Does it make sense for the 1st Amendment to refer to a collective/state right when it refers to “the people” in, “…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”? If not then why should it in reference to the 2nd Amendment?
  • Does it make sense for the 4th Amendment to refer to a collective/state right when it refers to “the people” in, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”? If not then why should it in reference to the 2nd Amendment?
  • Does it make sense for the 10th Amendment to refer to a collective/state right when it refers to “the people” in, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”? If not then why should it in reference to the 2nd Amendment?

The writers and debaters of the Bill of Rights did not chose their words carelessly. Not only did they know it was a very important document it was reviewed, scrutinized, rewritten, and argued over in very fine detail. When they meant “the States” they said “the States”. One would be very hard pressed to make the case they meant “the States” in the 2nd Amendment when it’s obvious they meant for “the people” to mean individuals in all other cases.

So how did this “collective right” hypothesis come about? Joyce Malcolm has what I believe to be the best view on that. The short version is as follows:

Early in the twentieth century when American whites, fearful of blacks in the South and the millions of foreign immigrants in the North, wanted to restrict access to firearms, alternative readings of the amendment gained credence. In the absence of serious scholarship, constructions that reduced or eliminated the individual right to be armed seemed plausible, especially in light of the awkward construction of the Second Amendment and the sparse congressional debates during its drafting, both of which relied upon common understandings of the value of a society of armed individuals that had faded over time. These new interpretations emphasized the dependent clause referring to the militia, to the neglect of the main clause’s guarantee to the people. The theory developed that the Second Amendment was merely intended to enhance state control over state militia; that it embodied a “collective right” for members of a “well-regulated” militia–today’s National Guard–to be armed, not a personal right for members of a militia of the whole people, let alone for any individual. Even when an individual right was conceded, the amendment was proclaimed a useless anachronism.

The case upon which all other cases that have found the 2nd Amendment does not protect an individual right is United States v. Miller 59 S.Ct. 816(1939). But this ruling is misunderstood. Here is the critical portion:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

This was interpreted by other courts to mean that unless the individual had some reasonable relationship to “a well regulated militia” that the individual was not protected by the 2nd Amendment. But that’s not what the above passage says. It says the 2nd Amendment cannot be said to guarantee the right to keep and bear the instrument, the shotgun, or weapon. And this is because the 2nd Amendment only protects weapons that are part of ordinary military equipment or that could contribute to the common defense. Hence the military M-16 and AK-47s are protected by the 2nd Amendment but the 30-30 hunting rifle is not.

The above interpretation is not just my personal, non-lawyer, view. See also U.S. versus Emerson where the appeals courts said:

We conclude that Miller does not support the government’s collective rights or sophisticated collective rights approach to the Second Amendment.  Indeed, to the extent that Miller sheds light on the matter it cuts against the government’s position.

Hence I conclude that the 2nd Amendment is an individual right, not a collective right.

But I tend to avoid getting into all this because most people don’t care about the details of the law, the history, etc. They are concerned about safety and security. A piece of paper written by a bunch of dead white guys, many of whom owned slaves, doesn’t get any traction with them. For those people I have Just One Question.

[Update: June 2014]
Some courts are now regarding the First Amendment an analogue of the Second:

What this may mean is that if it is repugnant to the courts to treat the exercise of the First Amendment in some way then doing a similar thing to the exercise of the Second Amendment will also be regarded as unconstitutional.
[End update.]


3 thoughts on “An individual right

  1. Quickly read–two typos noted,

    Your second “4th Amendment” should be 10th.

    Last sentence, “many of [whom] owned owned slaves”

  2. It was 1:00 in the morning when I finished that. I’m not surprised there were some minor errors. I noticed another one too.

    I tried to edit the post and the blog software gives me an error and won’t let me do it. I edited the underlying .XML but it appears to have cached it and won’t pick up the changes until the application restarts. That might be minutes or weeks.

    Thanks for the corrections.

  3. Thanks for this post, good work.

    Others have also noted that militia in those days meant all able bodied men. The Founders were clear that one of the purposes of the Second Amendment was to guarantee that the people had the ability to oppose tyranny of their own government,and also assure that a standing army could not usurp the will of the people.

Comments are closed.