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Cooking Up A Collective Right
How a mythical
monster nearly swallowed the Second Amendment whole.
By Dave Kopel
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 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 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,
Adams and
Tot could 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. 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, the collective right theory had all but vanished, at least among
experts. Of the amicus briefs 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.
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