The "Collective Rights" Myth: Born November 11, 1905. Killed June 26, 2008

Dean Weingarten in front of Supreme Court

The myth of the Second Amendment as a "collective right" and not an individual right, was born in an obscure Kansas Supreme Court case. It was in 1905, as progressive ideology was becoming ascendant in the United States.

Dave Hardy notes, the myth of the Second Amendment as a "collective right" was born with the case of City of Salina v. Blaksley, on November 11, 1905.

What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of "collective rights" theory.

The "collective rights" theory did not gain traction for decades. In 1931, the Michigan Supreme Court rejected it in People v Brown:

 When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens...is practically extinct and has been superseded by the National Guard and reserve organizations... The historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the state.

Then in 1939 the Miller case was set up by  Heartsill Ragon. Ragon was a an anti-Second Amendment ideologue and a President Franklin Delano Roosevelt (FDR) ally, appointed from Congress to the federal judgeship. The case went to the Supreme Court without opposing counsel or briefs. The Supreme Court refused to rule on whether a sawed off shotgun (having not been presented with any evidence to the contrary) was an arm protected by the Second Amendment.  The Supreme Court decision stated all men capable of carrying arms were protected by the Second Amendment. No opposing views were presented to the court. From Miller:

 The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

The Miller decision was muddy, but the context was clear. Individuals were protected by the Second Amendment. Progressive judges started to ignore and misrepresent the Miller decision as showing the Second Amendment only applied to state militias. In 1942, during the height of World War II, two circuit court decisions added to the flimsy foundation of the "collective right" myth.

In United States v Tot, the Third Circuit held the Second Amendment did not apply to criminals, a finding which can be consistent with an individual rights interpretation. The judge, in a one paragraph dicta, pushed the myth the Second Amendment was a "collective right", incorrectly citing Miller, and a short historical discussion of the English revolution from 1688-1689, found in Aymette (an anomalous Tennessee case from 1840), and a collection of modern writers. The historical analysis was very weak.

In the First Circuit, in Cases v United States, the three progressive judges went so far as to claim Miller did not apply to military weapons, because it was what they wanted to find. From Cases:

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

In 1965, Progressive AG, Nicholas Katzenbach, in the Progressive Johnson administration, claimed the "collective right" myth was correct, without evidence. In 1968, President Johnson pushed through the infamous Gun Control Act of the same year.  After 1968, a flurry of circuit court decisions adopted the "collective right" myth, citing Tot, or Cases, or a cursory reference to Miller. The "collective right" myth was now fully formed.

The full fledged "collective right" myth was fully formed in the courts after 1968.

It was not adopted at the Supreme Court, but was pushed hard in the Media.

In the 1970's the "collective right" myth started being exposed by academics. The myth was so thoroughly debunked in the literature, the fact the Second Amendment protected individual rights was referred to as the Standard Model.

In 2004, the Department of justice rejected the "collective rights" myth and confirmed the Second Amendment protected individuals rights.

In the Heller decision published on June 26, 2008, the Supreme Court clearly and precisely points out the "collective rights" myth is false, and shows the reality. The Progressive judges on the Supreme Court generally admitted the rights protected were individual rights, but argued they should be limited by the prefactory clause. From billofrights.com:

Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”

Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction.

This was the death of the myth of the "collective right". It never was reasonable to believe a pre-existing  "right of the people" would refer only to a right of the states to form militias.

The Heller decision killed any logical claim about the "collective rights" myth. It had been created out of very thin, stone soup.

But liberal fascists, also known as Progressives, have always hated limitations on government power, especially the Second Amendment.  They have always depended on lies and their ability to control information flow. They continue to promote two false myths about the Second Amendment. The leftist myths are illustrated by this article in the Huffington Post, in 2013. Here is the first:

Following the Sandy Hook massacre, gun rights, gun laws and the Second Amendment have been the subject of a national dialogue. Any discussion of these topics is severely tainted by calculated messaging by the NRA to deceive and mislead our citizens to believe that the Second Amendment grants far reaching gun rights which have not and do not exist.

Note the false assumption in the above paragraph. The Second Amendment does not grant any rights. It protects existing rights to keep and bear arms. The text of the Second Amendment verifies that fact. The false assumption is repeated in the next paragraph, now compounded by the myth that the Second Amendment does not protect individuals rights.

The Second Amendment became part of our constitution in 1791. For well over two centuries the Supreme Court never decided that the Amendment granted a constitutional right to individuals to bear arms. The widely held notion that such a right existed was a myth fabricated by the NRA for its own self interest and for the corporate profits of gun manufacturers.

The author goes on to cite a number of prominent progressive judges and lawyers who all spout the "collective right" mythology. All cite the same talking points, based on the same false narratives.

The myth the Second Amendment does not protect individual rights, only "collective rights", was first created in Kansas in a muddy decision in 1905. It was built on by dubious wording in a couple of circuit court cases, then elevated to legendary status by the courts after 1968, by judges using Progressive ideology.

Opinion:

The "collective right" myth was killed in 2008. It was never really alive. Like a zombie in the movies, it keeps rearing its ugly head in ill-informed arguments about the Second Amendment.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch