The NRA is often accused of inventing the concept of individual gun rights. When did the collective rights theory begin? Anyone have a good understanding of the legislative and historical history? Brandon Ross
May 29, 2020
Sure. But its exactly the reverse.
Everythingliterally everythingin the early history of the right to bear arms supports an individual rights interpretation. Essentially, that the right to own all common arms that the military may possess is guaranteed to each person. Just as every other part of the Bill of Rights protects the individual.
That doesnt mean the right was unlimitedthere absolutely was some gun control in the early states and colonies. Originally, states could create all the gun control they wanted. The Second Amendment was specifically created to stop the federal government from infringing on the right to bear arms.
Individual rights is a terrible misnomer, as it adopts the phrasing of its opponents.
Its just rights.
The concept of a non-individual right to bear arms did not readily exist in the public mind under the late-1980s. It was popularized by progressive law professors and gun control advocates as a means to enable federal gun control legislation at the federal level.
The very thing the Second Amendment was created to protect against.
Problem is, there were very few cases about the Second Amendment. Because, at the time, no one was very confused about what it meant, and no one was very loudly promoting broad gun control. In the absence of conflict, there are no public disputes, and hence no well known cases.
So, they had to look for some legal authority to support their radical reinterpretation.
The advocates looked to the case of United States v. Miller, 307 U.S. 174 (1939). Its a very peculiar case involving one of the first gun control acts (the National Firearms Act) and an indictment for transporting a shotgun from Arkansas to Oklahoma. The U.S. District Court dismissed the criminal indictment summarily concluding that the Second Amendment protected the right to the possess a shotgun.
On appeal, the Supreme Court said that because there was no evidence submitted to the court that the weapon at issue was used in the militia or military, there was no factual basis for claiming that the Second Amendment protected the plaintiff. So, the case had to go back to the lower court to get that evidence. Which the order of the court in Miller very specifically does.
In fact, the type of shotgun possessed by Miller was actually used in the U.S. military at the time. And that evidence would not be difficult to introduce. However, Miller died a short while after the Supreme Court heard the case. The case died with him, and so no final decision was ever given.
After the 1970s, the progressive movement began looking for new ways to restrict the common citizens right to bear arms.
They clinched on the first clause of the Second Amendment: A well regulated Militia, being necessary to the security of a free State. . . . And tried to find argumentsignoring the whole militia partthat the right to bear arms was protected only unless you were called into the actual military service of the federal government. (Which defeats the whole point
)
And so, they took Miller, and said, Look! This case revives a criminal prosecution where the Second Amendment was claimed. And the Supreme Court says that only weapons used in the military are protected by the Second Amendment. That must mean that only people in the military have a right to bear arms!
It makes no sense. They confused the kind for the who. Miller describes the kinds of arms protected by the Second Amendment. Gun control advocates confused Miller to mean only certain people can possess arms. Which it does not say at all.
Much later, you will find legal commentators blindly regurgitating that Miller established a collective rights theory. But that is plainly wrong to anyone who reads the case. If you ask Google, When was the collective rights theory created? you will find that nearly everyone points to 1939the Miller case.
But thats wrong. The case was decided in 1939. But the collective rights theory was not created until much, much later. There are a few reported cases here and there roughly relying on Miller for various, inconsistent points, which the U.S. Supreme Court declined to review for various reasons.
I could expound further on how one particular U.S. Circuit Court helped advance the collective rights theory, based upon a poor reading of Miller. But thats a story for a different day.
In short:
The individual rights theory was the original conception of the right to bear arms.
The collective rights theory was created about 200 years later as a pretense to pursue federal-level gun control.
Poster Comment:
The police have been militarized. Now things are getting so bad that we are afraid to go out armed.
When I lived in Illinois, this one guy named Fred who I worked concerts with, said of his Dad one time when he was going out in the car, "He's heavily armed."