The Second Amendment: Individual or Collective Rights?

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In his new book, Six Amendments: How and Why We Should Change the Constitution, former U.S. Supreme Court Justice John Paul Stevens proves that retiring from the bench does not mean retiring from controversy. Apparently determined to venture into the foray of contentious political and legal debate one more time, the 93 year-old Justice set his sights on the perennial flashpoint that is the Second Amendment. In doing so, he touched upon an important schism in constitutional jurisprudence, one that informs today’s assault weapons bans and gun registries (or lack thereof). The issue is: does the Second Amendment guarantee that an individual can carry a gun solely for private purposes like self-defense, or is it a right that primarily extends to collective needs, such as maintaining a militia?

Anyone familiar with his increasingly liberal viewpoints would probably not be surprised to learn that Stevens strongly advocates for the latter. In fact, to make his support for a collectivist reading perfectly clear, he goes as far as to propose a rewording of the Second Amendment. The Constitution currently states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Stevens would iron out all the wrangling over this clause by inserting the deceptively small five-word phrase, “when serving in the militia.” This caveat would dramatically reverse the current trend, which has been to bolster the individual’s right to carry a wide range of weapons for self-defense.

Rather than a drastic departure from the historical right to bear arms, Stevens’ proposed revision would actually be a return to the viewpoint of past Judges. Until the Roberts Court reexamined the issue of collective vs. individual gun rights in 2008, the most recent ruling on the matter was the 1939 case, United States v. Miller. Over seventy years ago, the Court unanimously ruled that if a particular type of weapon – in this case, a sawed-off shotgun – does not clearly have “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” This ruling was widely accepted as an affirmation of the collectivist, militia-based interpretation, even by typically staunch liberty advocates like the ACLU. Over the next several decades, gun laws significantly constrained firearm purchases made by non-militia individuals for non-militia purposes.

Miller reigned for the rest of the century, but the consensus around its meaning was challenged in the landmark 2008 case, District of Columbia v. Heller. Justice Antonin Scalia, author of the majority opinion, branded Miller a “virtually unreasoned case” in oral arguments. Yet his criticism also extended to the general interpretation of the case by the legal community; in Scalia’s view, Miller really came down to “the type of weapon [that] was not eligible for Second Amendment protection[,]” [emphasis original] meaning that “the opinion provided no explanation of the content of the right.” In layman’s terms this implies that a weapon should be allowed if it has reasonable paramilitary potential, instead of needing to actually be part of organized, armed activity. As Justice Scalia pointed out in the written opinion, “[h]ad the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” Armed with a more narrow view of 1939’s ruling, along with textual analysis of the Second Amendment and a defense of the constitutional right to self-defense, the Roberts Court declared that the right to bear arms is substantially independent from a “well-regulated militia.”

Justice Stevens’ strongly worded dissent from the decision, seconded by three of his colleagues, is the basis for his newly proposed amendment. He contended that the individual’s right to have a weapon was originally codified for the sake of maintaining provincial and local militias. Nowhere does constitutional history justify the wholesale protection of personal firearm usage. Therefore, regarding the right to self-defense in the District of Columbia v. Heller, Stevens’ wrote that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

Two years later, the Court reaffirmed its big 2008 ruling in McDonald v. Chicago. Yet the matter is far from settled; like Heller, McDonald v. Chicago was decided along an ideologically polarized 5-4 split. Without more consensus on the nation’s highest court, the constitutionally endowed right to self-defense continues to have a shaky mandate. By proposing to the drastic and politically unlikely step of amending the Constitution, Justice Stevens has shown that the issue of aggregate vs. individual gun rights continues to divide the legal community. Numerous law professors and scholars, while in general agreement about the Second Amendment’s individualistic aspects, do not have a clear standard for whether these prerogatives are based on private or public interest. This tension is extremely important: it means that the fate of gun laws will not be determined by NRA membership or another Newtown-like massacre, but by whether we can agree on the conceptual origin of gun rights. If we can fully answer why an individual can buy a gun, then we can define when he may do so and what he can purchase.

Ian Tarr Ian Tarr (12 Posts)


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10 Comments

  1. When the first Congress met, the writing and adoption of a Bill of Rights was a high priority. Because the pen not high tech nor fast, The Senate did not record every word spoken. But they did record motions and votes. In what became the Second Amendment, a motion was made to add the words,”for the common defense” and then it was promptly voted down.
    It seems obvious that the Senate wanted to establish a legislative intent, that this was aright being guaranteed for the individual.
    The 1939 Miller Court did not rule that short barreled shotguns were not protected because the was no transcript to review. That explains the phrase “not within judicial notice” but the Court did say that when and if called to service, the militia was expected to form with their privately owned military weapons of the sort then in service with the regular Army.
    That would be what is so actively being banned in a dozen States and by the attempts of members of Congress and the President calls an “assault weapon”is exactly what the 1939 Miller Court said was protected.
    Retired Justice John Paul Stevens is simply wrong in his history and law. The HELLER and McDonald opinions are very complete as far as they went. Since the Court only heard evidence in the case of D.C.s’ ban on handguns and storage requirements. The did not take any evidence concerning most laws in the fifty States. They said that certain laws may be constitutional which was immediately reported by the mainstream media as the Court had upheld all the other laws.

  2. Constitution Boi says:

    there is NO ambiguity now.

  3. Constitution Boi says:

    “The issue is: does the Second Amendment guarantee that an individual can carry a gun solely for private purposes like self-defense, or is it a right that primarily extends to collective needs, such as maintaining a militia?”

    No such issue exists since Heller. It’s been decided. What he is calling for is a change in a well understood amendment to the Constitution, which is his right. But there is ambiguity now.

    • Ian Tarr Ian Tarr says:

      Constitution Boi,

      I’m not advocating for one constitutional interpretation or the other in this article. Instead, I’m simply highlighting the divide that persists in the legal community. It’s a fallacy to say that “the Court has decided, therefore it’s not an issue.” Conceptual disagreements about constitutionality are not necessarily eradicated by Court rulings, especially ones that are as recent and contentious (5-4) as Heller. This is true because Court rulings can be overturned (Heller, after all, was overturning a past ruling). Even if they don’t end up being overturned, SCOTUS’ job is to provide the final word on whether or not something’s constitutional, but it does not actually make that thing Constitutional. This is true because finality of judgment is a function of popularity, not adequacy. For example, if five people agree and four people disagree, that does not tell you anything about which group is right. Replace “people” with “justices,” and the idea behind my article becomes pretty clear. Just because one interpretation has recently surged in popularity doesn’t mean that viewpoint is correct.

  4. Glenn Billings says:

    When the Framers of the Constitution in the Federal Convention created the Constitution, they it no Bill of Rights and hence no 2nd Amendment. But when it came around the 13 States during the Ratification debates, those typically for the Constitution argued that they did not need a Bill of Rights because it was understood BY ALL that the Constitution, the document that created and framed the Federal Government did not grant any more powers than were explicitly stated in the Constitution. Those rights in the Bill of Rights were Pre-existing, Pre-Constitutional. So to clear up one thing, the Constitution DID NOT GRANT anybody any rights. The Bill of Rights DID NOT GRANT anybody any rights. Those were pre-existing rights. The Bill of Rights are SOME or our Pre-Existing, Inalienable, natural rights. So it’s not a question of whether the 2nd Amendment is supposed to protect an individual or collective right to keep and bear arms. The real question is “was the Federal Government granted the power to legislate, ban or control the right to keep and bear arms by either the individual or the collective? The answer. NO WHERE IN THE CONSTITUTION was the Federal Government granted any powers to take away an individual’s right to Free Speech, Freedom to express a Religion, Right to Keep and Bear Arms, Freedom from Unlawful Searches and Seizures, etc. Was the Federal Government granted the blanket power to take away these rights? ABSOLUTELY NOT!

  5. Ticked says:

    Why is it still being asked?? Because progressives will not take NO for an answer. Therefore, We The People will need to KEEP it repeating for them!

  6. William Baker says:

    Well, if rights are collective and not individual: A) Then people as a whole would have gun rights, but not individuals, which is like saying that as long as most people are free, it’s ok to have a few living in slavery….

  7. Jeremiah says:

    “The issue is: does the Second Amendment guarantee that an individual can carry a gun solely for private purposes like self-defense, or is it a right that primarily extends to collective needs, such as maintaining a militia?”
    It is both: 10 U.S. Code § 311 (a) The militia of the United States consists of all able-bodied males at least 17 years of age…

  8. BHirsh says:

    This question is now settled law.

    So, why is it still being asked?

    • Joel says:

      Simple, liberals didn’t like the results so they just keep asking in hopes that the answer will change. Just like my kids do when they get told no.

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