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Cooking Up A Collective Right

How a mythical monster nearly swallowed the Second Amendment whole.

By Dave Kopel

America's 1st Freedom

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 “gun nuts” who are ignorant of the original intent of the Second Amendment, and of the Supreme Court’s past rulings.

If all you knew about the Second Amendment was what you learned from the national media, that’s what you would have believed during the latter decades of the 20th century.

Yet that view was entirely wrong, according to the unanimous Supreme Court in District of Columbia v. Heller(2008). How did such a foolish and obviously incorrect view of a constitutional right become so popular among America’s opinion elite?

Let’s start with some basic legal facts. In Heller, the five-justice majority led by Justice Antonin Scalia followed what is called the “standard model” of the Second Amendment—namely that the Second Amendment protects the right of all law-abiding persons to own, use and carry firearms for all legitimate purposes, especially for self-defense.

The four dissenting justices in Heller, led by Justice John Paul Stevens, instead preferred what is called the “narrow individual right.” Under this theory, individuals have Second Amendment rights, but only in connection with service in a well-regulated militia.

The Heller dissenters did not elucidate the scope of the right, except that it did not include owning a handgun for personal self-defense.

According to Justice Stevens, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.”

Justice Stephen Breyer wrote an additional dissent, which was joined by the same four justices who participated in the Stevens dissent. Justice Breyer wrote, “I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes: (1) The Amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.”

So all nine justices agreed that the Second Amendment protects some sort of individual right. In contrast, the “collective right” theory asserts that there is no individual right. Where did such a strange theory come from, and why did it become so popular in the media, academia and the lower federal courts?

Throughout the 19th century, courts heard cases involving state constitutional right-to-arms guarantees and, less frequently, the Second Amendment itself. All of these court decisions treated the Second Amendment and its state analogues as protecting individual rights. Some courts applied the militia language in a state constitution to narrow the scope of the individual right—such as by holding that everyone had a right to militia-type arms (e.g., rifles, muskets, horseman’s pistols, sabers) but not to arms that were considered unsuitable for militia use (e.g., Bowie knives). All of the courts and nearly all legal scholars agreed that the Second Amendment, as well as state constitutional right-to-arms guarantees, protected an individual right.

The one and only exception was a concurring opinion by one judge in the 1842 Arkansas case State v. Buzzard. There, Judge J. Dickinson asserted—without citing any evidence or authority—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 ridiculous. 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. Nothing in the Second Amendment adds to federal powers. Instead, the text of the Second Amendment affirms the importance of a militia (“necessary to the security of a free State”) and guarantees “the right of the people to keep and bear Arms.”

Judge Dickinson’s concurrence was ignored by later Arkansas courts. Even Dickinson’s unusual theory that the Second Amendment was a recognition of federal power said nothing about “collective rights.” The collective rights interpretation of the Second Amendment would not be fabricated until the 20th century.

In the 1905 case Salinav. 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 could not accurately cite any legal authority for its conclusion. The only precedents or scholars that Salina did cite in support actually contradicted Salina’s theory. For example, Salina cited the 1896 Massachusetts case Commonwealth v. Murphy, yet that case recognized the Massachusetts constitutional right to arms as an individual right, while also upholding, as an appropriate regulation of that right, a ban on unlicensed mass armed parades in public.

Nor could the Salina court explain why the framers of the Kansas Constitution, in the middle of an article titled “Bill of Rights,” suddenly inserted a provision that had nothing to do with rights but that instead tautologically expressed a power of the state government—in essence, “the state government’s militia is under the complete power of the state government.”

No court followed the Salina approach until 1935, when 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. 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.]

(Ritter was not exactly a judicial luminary. The next year, he would be impeached by the U.S. House of Representatives and removed from office following conviction by the U.S. Senate.)

Judge Ritter had trouble finding legal authority to support his claim. He cited the 1897 U.S. Supreme Court case Robertson v. Baldwin. But 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 difficult 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 for the citizenry. Perhaps taking a leaf from Adams and Salina, the attorney general argued that Colorado’s constitutional right to arms “is not a personal right, but one of collective enjoyment for common defense.”

The Colorado Supreme Court unanimously rejected the collective enjoyment theory, and ruled the statute unconstitutional by a 5-2 vote. [People v. Nakamura, 62 P.2d 246 (Colo. 1936).]

The U.S. Supreme Court ruled on the National Firearms Act in the 1939 case United States v. Miller. Miller is a confusing and opaque opinion, partly because it was written by the notoriously indolent Justice James Clark McReynolds.

Nearly seven decades later, the justices in Heller argued vehemently about what Miller really meant. Justices Scalia and Stevens would each contend that Miller supported their own interpretation of the Second Amendment’s individual right. Notably, not one of the Heller justices suggested that Miller stood for the anti-individual collective right.

The anti-individual 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 somehow 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 negate 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 all adults, and those militiamen (and militiawomen) should be able to own machine gun (or even grenades, bazookas, etc.) without federal taxation, registration or licensing.

In contrast, the pure collective right, as articulated by not-yet-impeached 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 supposedly 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 control became a major issue in the 1960s, and gun prohibition began to appear politically realistic, the nihilist 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 sneeringly 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 eccentric opinions of the judges in Salina, Adamsand Totcould be presented as mainstream consensus, rather than as the ahistorical oddities they really were.

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.

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 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.

Yet the collective-right theory itself contained the seeds of its own destruction. Emboldened by the collective right’s negation of the Second Amendment, politicians and gun-ban lobbies intensified the pressure for draconian gun control, and so scholars began looking into the actual legal history of the Second Amendment. One such scholar was a University of Arizona Law School student named David Hardy. His 1974 article in the Chicago-Kent Law Review, “Of Arms and the Law,” marked the beginning of the historical rediscovery of the Second Amendment.

For a while, the legal academy tried to ignore the mounting historical evidence that the Second Amendment protects an individual right. But in 1989, left-leaning University of Texas professor Sanford Levinson penned “The Embarrassing Second Amendment” for the Yale Law Journal. Levinson suggested that law professors and the rest of the elite bar had avoided looking carefully at the Second Amendment because of “a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even ‘winning,’ interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.”

With Levinson having legitimated scholarly inquiry, what had once been a trickle of scholarship turned into a flood. The “collective right” became increasingly implausible.

To make things worse from the prohibitionist perspective, in 1988 the 9th Circuit Court of Appeals heard a case involving the search and seizure by American law enforcement agents of a Mexican drug lord in Mexico. Did the Fourth Amendment “right of the people” to be free from unreasonable searches and seizures apply to Rene Martin Verdugo-Urquidez? The 9th Circuit observed: “Besides the Fourth Amendment, the name of ‘the people’ is specifically invoked in the First, Second, Ninth, and 10th amendments. Presumably, ‘the people’ identified in each amendment is coextensive with ‘the people’ cited in the other amendments. No contrary indication appears in either the text or history of the Constitution.” [856 F.2d 1214, 1239.]

So if “the right of the people” protects a personal right to assemble (First Amendment) and a personal right to freedom from unreasonable search and seizure (Fourth Amendment), then “the right of the people” in the Second Amendment must also protect a personal right.

The U.S. Supreme Court took the Verdugo-Urquidez case and, specifically invoking the Second Amendment, said essentially the same thing as had the 9th Circuit, although the Supreme Court ruled against Verdugo-Urquidez himself.

While Verdugo-Urquidez was working its way through the appellate courts, Handgun Control Inc., (which later renamed itself the Brady Campaign) hired attorney Dennis Henigan. In a 1989 article for the University of Dayton Law Review, he recast the (untenable) 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 flaws with 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. Emersonbefore 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 Hellerwas being briefed in early 2008, the collective right theory had all but vanished, at least among experts. Of the amicusbriefs filed in support of the D.C. handgun ban, only one made an extended argument for the collective right. That brief came from Bill Clinton’s former Attorney General Janet Reno, Barack Obama’s future Attorney General Eric Holder and some other former officials.

After a heyday from 1968 to 1990, the collective right theory met its ignominious end in 2008, collectively rejected by a unanimous Supreme Court. It was a well-deserved demise of a theory that never should have gained traction, yet did so anyway because of dishonest judicial decisions and gun-ban proponents who repeated the lies until some actually came to believe they were true.

Editor’s Note: For further reading, many of the cases and articles discussed above are available at http://www.guncite.com/2ndlawlib.html. More by Kopel on the legal history of the Second Amendment is available here.

 
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