The Collective Right: The 2A 'Theory' Too Dumb to Die

Image by LovableNinja from Pixabay

The Heller decision made one thing perfectly clear: The Second Amendment protects an individual right to keep and bear arms.

Prior to the decision, a whole lot of people were arguing that it really just protected states' ability to have an armed militia, so it didn't really apply to ordinary Americans such as you or me.

After Heller...well, most of those people don't accept the ruling.

You see, the idea that it's a collective right seems to be an idea that's just too dumb to die. I was reminded of that fact when I came across this little tidbit by a community member at Daily Kos:

Prior to Heller, the Supreme Court had previously ruled on the 2nd Amendment in U.S. v Miller in 1939 where it found there was “no personal right to a firearm”:

An Arkansas federal district court charged Jack Miller and Frank Layton with violating the National Firearms Act  of 1934 ("NFA") when they transported a sawed-off double-barrel 12-gauge shotgun in interstate commerce. Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms. The district court agreed and dismissed the case.

The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

This was the interpretation of the 2nd Amendment that held for the first 219 years of our nation, before Heller. There was no precedent to Heller, and frankly, it makes no sense in this context. If someone doesn’t have a personal right to a saw-off shotgun, how does someone have the right to refuse a trigger lock for a handgun?

The only way that works is if you pretend that the “well-regulated militia” clause doesn’t exist, or that it doesn’t mean anything - which is what Heller did.  A personal right to gun ownership doesn’t exist outside the context of a well-regulated militia.

Well, this would be a compelling argument if the underlying premise wasn't so terribly, terribly wrong.

OK, it really wouldn't, but the author might actually have a leg to stand on if the underlying premise had some degree of accuracy.

See, he says that for 219 years, it was held that the Second Amendment wasn't an individual right, that Miller was simply restating what people understood to be true.

Attorney Kostas Moros has a threat on X, formerly Twitter, that debunks that claim quite well.

That first excerpt is from a book published in 1825, a mere 34 years after the ratification of the Second Amendment. The thread includes numerous other examples of legal minds arguing that the right to keep and bear arms is an individual right.

In fact, you're going to be hard-pressed to find any actual statements that the right is a collective right. Yes, the Federalist Papers make reference to it being in regard to the militia, but we need to understand exactly what the militia was at the time--a body of free men who took up arms to defend their nation. The so-called militia clause of the Second Amendment simply notes that in order to have a militia, you need an armed citizenry.

Then we have the fact that the Second Amendment reads as [with emphasis added]: "...the people's right to keep and bear arms shall not be infringed."

The people's right.

In the Constitution as a whole and the Bill of Rights in particular, the phrase "the people" comes up quite a bit. What people like this want us to do is to ignore literally every other case where the phrase is used and generally taken to mean an individual right, just so we'll interpret this one as a collective right.

It makes no sense.

Like I said, this idea of the Second Amendment being a collective right is stupid, but it's a comforting stupid that allows anti-gunners to justify their unconstitutional preferences as somehow being constitutional. It's too stupid--and too convenient--to give up.