Collective Rights bleg:

Thanks to District of Columbia v. Heller, we now have unanimous agreement that the "collective rights" theory of the Second Amendment is incorrect. All nine Justices agreed that the Second Amendment guarantees an individual right; the Justices simply disagreed about the scope of the individual right. Nothing in the dissent claims that there is now, or even has been, a scintilla of evidence from the Founding Era, or from Supreme Court precedent, in support of the "collective right."

Justice Stevens' dissent complained that the majority in Heller was upsetting the reliance interest of hundreds of judges, as well as legislators and members of the public regarding what Stevens claimed to be the settled interpretation of the Second Amendment. However, many of the lower court judges and other persons who rejected the Standard Model of the Second Amendment did so by adopting the "collective right" theory. Because the Heller majority and dissent agreed that there was no reasonable basis for the "collective right" theory, I suggest that the reliance interests of "collective rights" believers deserved no consideration by the Supreme Court. In contrast, if one believes Justice Stevens' claim that the Supreme Court had always (until Heller) used the "narrow" individual right theory (the right is only individuals in state militias), then Justice Stevens would have at least raised a plausible issue regarding the reliance interests of "narrow" individual rights believers.

I would like to create a consolidated list of all judicial decisions which adopted the "collective rights" theory. It would be nice to supplement the list with statements from legislators, journalists, academics, etc., claiming that "collective rights" is the only valid meaning of the Second Amendment. So I encourage commenters to supply as many citations as they would like. It would be ideal if the citations followed conventional Bluebook format, and included a brief parenthetical quote from the source.

Hm... "reliance interest." That's where a mistake is improved by repetition, right?
7.9.2008 2:13pm
Kurt M. (mail):
There is a law review article that answers the question you posed. It's Steven H. Gunn, Second Amendment Symposium: A Lawyer's Guide to the Second Amendment 1998 B.Y.U.L. REV. 39 n. 13 (1998) . Quoting footnote 13:

Several lower court decisions adopt the collective right view, either in holdings or dicta. See, e.g., United States v. Wright, 117 F.3d 1265, 1273 (11th Cir.), cert. denied, 118 S. Ct. 584 (1997); United States v. Ryber, 103 F.3d 273, 286 (3d Cir. 1996), cert. denied, 118 S. Ct. 466 (1997); Hickman v. Block, 81 F.3d 98, 102 (9th Cir.), cert. denied, 117 S. Ct. 276 (1996); Love v. Pepersack, 47 F.3d 120, 123-24 (4th Cir. 1995); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); United States v. Graves, 554 F.2d 65, 66 n.2 (3d Cir. 1977); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Day, 476 F.2d 562, 568 (6th Cir. 1973); Cody v. United States, 460 F.2d 34, 36-37 (8th Cir. 1972); United States v. McCutcheon, 446 F.2d 133, 135-36 (7th Cir. 1971); United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971); Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943); Thompson v. Dereta, 549 F.Supp. 297, 299 (D. Utah 1982); Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F.Supp. 198, 210 (S.D. Tex. 1982); Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987); Brown v. City of Chicago, 250 N.E.2d 129, 131 (Ill. 1969); Commonwealth v. Davis, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 248 A.2d 521, 525-26 (N.J. 1968), appeal dismissed, 394 U.S. 812 (1969); State v. Fennell, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); City of East Cleveland v. Scales, 460 N.E.2d 1126, 1130 (Ohio Ct. App. 1983); Masters v. State, 653 S.W.2d 944, 945 (Tex. Ct. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); Carfield v. State, 649 P.2d 865, 871 (Wyo. 1982); cf. United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992) (noting that individual/collective right distinction is irrelevant when possession of arms is not related to the preservation or efficiency of a militia); United States v. Toner, 728 F.2d 115, 128 (2nd Cir. 1984) ("[T]he right to possess a gun is clearly not a fundamental right.")."

I hope this provides a good start.
7.9.2008 2:17pm
Kurt M. (mail):
Also, the Emmerson decision has a good list of both academic and court decisions holding that the second amendment is a collective right.

See footnotes 9 , 10 , &11 .

Hope this helps.
7.9.2008 2:33pm
A.W. (mail):
Sheesh what a crazy notion. Reliance interest on state power.

So Lawrence would be wrong under this view, right?

So would Roe v. Wade. And to pick less dubious decisions, Brown v. Bd. of Ed, Loving v. Virginia, and so on.

Just about every "advance" in civil rights and liberties, has upset the government's reliance on previous decisions declaring they had the power.

And then in Kennedy v. LA, the states' reliance on the dicta in the previous death penalty for rape case is ignored. they pretend the states spontaneously refused to pass such laws, as though the SC had nothing to do with it.

That is simply stunning in his hypocricy. Has he ever cared about the reliance of state power before?

Yeah, i didn't think so.
7.9.2008 2:35pm
DNL (mail):

Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view.

The Supreme Court has now ruled otherwise. In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's 2008 decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia.

The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment. We do not, however, take a position on gun control itself. In our view, neither the possession of guns nor the regulation of guns raises a civil liberties issue.
7.9.2008 3:23pm
David Codrea (mail) (www):
Then-CA AG Bill Lockyer:

The "right to keep and bear arms" under the Second Amendment is not an individual right to possess firearms, but a collective right of the States to keep and maintain a "well-regulated militia." (United States v. Miller, 307 U.S. 174, 178 (1939); Hickman v. Block, 81 F.3d 98, 101?102 (9th Cir. 1995); Fresno Rifle Club v. Van de Kamp, 965 F.2d 723, 729?731 (9th Cir. 1992);…)
7.9.2008 3:59pm
kat-missouri (mail) (www):
Just one thought. Had the Supreme Court decided to make this a "collective right" based on the "state militia", I think it would behoove the states to pass laws that indicate that every able bodied adult over the age of 17 is automatically considered a member of the "state militia" and responsible for obtaining and maintaining their own arms as they see fit to perform those duties.

The state will compensate them at an equitable rate for any time they are called up to perform the duties of the state militia (this will, of course, likely reduce the number of times, if ever, such a militia would be called up).
7.9.2008 4:06pm
Repeal 16-17 (mail):
How about Silveira v. Lockyer (9th Cir., 2002). It gave a more thorough analysis than that circuit's Hickman decision.
7.9.2008 4:18pm
cboldt (mail):
Very creative way to approach the issue. And without re-reading Heller, "reliance" seems a fair characterization of the dissent.
I wonder how much of the reliance relates to the misconstruction of Miller, and the extent of the body of law that predates Miller that finds the 2nd amendment to be a collective or state (rather than an individual) right.
And beyond that, the fact that majority in Heller got Miller wrong on "type of arms," you may want to start another list of cases that follow the wrong path based on reliance on the Heller majority's misconstruction of Miller.
7.9.2008 5:27pm
kat-mo, control over the militias is vested in Congress [See Art I S8].
7.9.2008 5:28pm
Clayton E. Cramer (mail) (www):
At least some of the cases Kurt M. points to, such as Commonwealth v. Davis (Mass. 1976) were making decisions about state RKBA provisions, not the Second Amendment. When I completed research for my book For the Defense of Themselves and the State (Praeger Press, 1994), I found a total of six final decisions that denied an individual right to possess long guns, and only two of those denied that the Second Amendment was individual: Application of Grauling, 17 Misc.2d 215, 183 N.Y.S.2d 654 (1959); Burton v. Sills, 99 N.J.Super. 459, 240 A.2d 432 (1968). There are a few other decisions that refused to recognize that such a right extended to handguns, but didn't deny that there was an individual right.
7.9.2008 6:37pm

and the extent of the body of law that predates Miller that finds the 2nd amendment to be a collective or state (rather than an individual) right.

I don't think there is any such body of law before Miller. Am I wrong?
7.9.2008 10:33pm
Mike O'Shea (mail) (www):
Some of the decisions listed in the footnote cited by Kurt M. are best read as embracing what's been called (e.g., by the Fifth Circuit in Emerson) the "sophisticated collective rights view" of the Second Amendment, rather than the "pure collective rights view" that David has in mind when he writes that "collective rights" was rejected by the entire Court.

Under the sophisticated collective rights view, which David's post (like some scholarly articles) calls the narrow individual rights view, the Amendment is invocable by individuals (unlike the pure collective rights view), but the right does not protect weapons possession or use outside of organized militia duty. Justice Stevens's Heller dissent is most naturally read as embracing this position. See 2008 WL 2520816 at *33 (Stevens, J., dissenting) (claiming that Second Amendment does not protect any "right to possess and use guns for nonmilitary purposes," nor does it "limi[t] any legislature's authority to regulate private civilian uses of firearms"). Justice Stevens rejected the pure collective rights view in the first paragraph of his dissent by conceding that the right "can be enforced by individuals," id., although, on his view, its scope does not include much that individuals might actually seek to have protected.

It's notable that D.C. did not even try to argue the pure collective rights view to the Supreme Court. It took as its litigating position the sophisticated collective rights / narrow individual right view ultimately embraced by the Stevens dissent.

Now for David's request. For a stark expression of the pure collective rights view, I nominate U.S. v. Warin, 530 F.2d 103, 106 (6th Cir. 1976):

"It is clear that the Second Amendment guarantees a collective rather than an individual right. ... 'Since the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.' "

Id., quoting Stevens v. U.S., 440 F.2d 144, 149 (6th Cir. 1971).

In pondering that "no serious claim to any express right" passage, bear in mind that the judges who joined the Warin and Stevens opinions were confronting a constitutional provision that, in fact, expressly speaks of a "right of the people to keep ... arms."
7.9.2008 10:54pm
tom gunn (mail):
I wonder if the reason there seems to be so little case law regards the 2nd is because there are no federal cases because further there were no fed laws to violate.

In 1934 the nfa was passed but not justified through any 2nd amendment collective or individual argument but as a tax law.

My thinking is that prior to 1939 even the fed believed what the people have known since ratification; the second protected an individual right to keep and bear arms.

It has been said that the fed controls the militia but that is true only of the organized militia which the fed accouters with the state reserving the right of appointment of officers.

The unorganized militia and any state or personal accoutered(yed virginia you may have a personal m16 or m4 an bring it to muster) organized militia remains under the control of the state. Perpich comes to mind.

Or, maybe this is just wishful thinking.
7.10.2008 2:38am
cboldt (mail):
@ShelbyC -- I don't think there is any such body of law before Miller. Am I wrong? --
I honestly don't know. It's a serious point of curiosity with me. I've never done independent research into 2A case law, other than to notice that Miller is chronically misconstrued.
I wonder if there is a case that doesn't misconstrue Miller!
7.10.2008 12:07pm
C. Norris (mail):
I applaud this effort to perform an autopsy on the history and dubious concept of the "collective rights" theory. It's contrary to the text and context of the wording of the Constitution. Nowhere in the document is the word "collective" to be found and certainly not in conjunction with "rights". "Rights" always stand alone as a proprietary property of "person" and "the people". "Powers" always stand alone as the conditional property of the "United States, or "the states". "Rights" and "powers" are never interchanged between people and government, respectively. The exception, proving the rule, being the 10th. Amendment that ultimately vests any residual "powers" to "the people". The 10th. is the peoples "boilerplate" (at least it should be).

In the spirit and letter of the Constitution "collective rights" is an oxymoron. If a right can be collected does it remain a right? Apparently not! Those who seek prior restraint and the denial of a right seem to comprehend collective rights without any such contradictions, just as those who considered that "separate but equal" had an equality all its own. It's time for collective rights to go the way of separate but equal. Sic 'em!
7.10.2008 2:45pm
JN Heath (mail):
"Collective right" discussion in gun cases is properly dicta, because once a judge says that a given constitutional amendment does not apply to the case before his court, any further discussion of where the amendment *does* apply is not holding, binds no other court, and is thus dicta. E.g. a state contesting a federal militia law (as in Perpich) cannot cite gun cases (like Tot or Silveira) as binding precedent that the Second Amendment protects state sovereignty.

To my knowledge the "collective right" appeared as actual holding in only one case in all of American law: Kneedler v. Lane, 45 Pa. 238 (1863). In Kneedler, the Pennsylvania high court enjoined federal conscription as an unconstitutional interference with the state militia. A concurring opinion cited and briefly discussed the Second Amendment, but the author was not perfectly clear as to whether he considered federal conscription to interfere with a state prerogative to enroll militia, or with the rights of militiamen as individuals, or collectively.

Kneedler was re-opened and reversed after nine weeks. It remained the leading case on conscription and was cited by The U.S. Supreme Court in Selective Draft Law Cases in 1918, when the Court specifically held that Congress may conscript from the militia until the state units are eliminated. To my mind, the Court's holding precludes the "collective right" model, if one stops to consider that model in light of the militia caselaw to which it supposedly applies. Unfortunately, almost every 2nd Am legal commentator has been so caught up in the gun debate that, astoundingly, practically none bothered to check the "collective right" model against militia caselaw, including most recently J. Scalia at 27 and J. Stevens at 19 n.20. I did the research and published in 2000, which Gura blatantly used as part of his brief, as did the SAF, neither of whom cited me, with the result that the Court was probably unaware of the depth of caselaw I uncovered in this area. This was a little galling, though the important thing was winning the case. Still, a cite would have made a difference to a diligent scholar who is now working as a circus rigger in Canada because he could not afford to finish law school in the U.S..

Scholarly claims that the Second Amendment applied only to militia law, premised on the assumption that the states could not be federally preempted, should have obliged both sides to walk across the quad to the library and check the militia law to see if the claim and underlying assumption were true. With apologies to many good, intelligent people involved, some of whom are my friends, the failure to check "collective model" claims against readily-accessed militia law was inexcusable laziness on the part of the legal profession all the way up to the high court and their clerks. A 37 year old undergrad with two toddlers in the house finally did their homework for them and published it, but went uncredited when it counted, and eight years after he published almost nobody else has vigorously questioned or challenged the miltia-law assumptions underlying the "collective right" model.

7.10.2008 8:39pm
Joe Huffman (mail) (www):
I'm lazy. I let others do my research for me.

The Brady Bunch has a list. If they pull the page I made a copy so just let me know and I'll mail to to anyone that wants it.
7.11.2008 12:41am