Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

A (Really) Brief History of the "Collective" Right to Keep and Bear Arms

Friday, February 22, 2008

Brief enough to fit on the head of a pin because not a single one of these 19th-century Supreme Court cases supports a “collective” right. In spite of that fact, media and gun-ban groups continue to insist that the U.S. Supreme Court once found for a “collective” right--but, alas, history tells a very different story.

By David B. Kopel

As the Supreme Court prepares to hear the case of District of Columbia v. Heller, involving the District’s bans on handguns and on self-defense with any firearm, gun prohibition advocates claim that the Second Amendment has no modern relevance because it protects only the “collective right” of state governments to control their own militias, or that it protects only the “narrow individual right” of National Guardsmen who are actively engaged in Guard duty.

In reality, however, the Supreme Court’s Second Amendment cases from the 19th century entirely refute the prohibitionists’ claims about legal history.

Houston v. Moore The first case in which the Supreme Court mentioned the Second Amendment was Houston v. Moore, in 1821. During the War of 1812, Mr. Houston refused to appear for federal militia duty. He thereby violated a federal statute, as well as a Pennsylvania statute that was a direct copy of the federal statute. When Houston was prosecuted and convicted in a Pennsylvania court martial for violating the Pennsylvania statute, his attorney argued that only the federal government, not Pennsylvania, had the authority to bring a prosecution; the Pennsylvania statute was alleged to be a state infringement of the federal powers over the militia.

When the case reached the Supreme Court, both sides offered extensive arguments over Article I, section 8, clauses 15 and 16 of the Constitution, which grant Congress extensive powers over the militia. Responding to Houston’s argument that congressional power over the national militia is absolute (and therefore Pennsylvania had no authority to punish someone for failing to perform federal militia service), the state’s lawyers retorted that congressional power over the militia was shared with the state power. They pointed to the Tenth Amendment, which reserves to the states all powers not granted to the federal government.

If the purpose of the Second Amendment were to guard state government control over the militia, then the Second Amendment ought to have been the heart of Pennsylvania’s argument. Instead, Pennsylvania resorted to the Tenth Amendment to make the “state’s right” point. Quite plainly, the Pennsylvania government lawyers relied on the Tenth Amendment, rather than the Second, because the Tenth guarantees states’ rights, and the Second guarantees an individual right.

Justice Bushrod Washington delivered the opinion of the court, holding that the Pennsylvania law was constitutional because Congress had not forbidden the states to enact such laws enforcing the federal militia statute.

Justice Joseph Story, a consistent supporter of federal government authority, dissented. He argued that the congressional legislation punishing militia resisters was exclusive, and left the states no room to act.

Deep in the lengthy dissent, Justice Story raised a hypothetical: What if Congress had not used its militia powers? If Congress ignored the militia, could the states act? “Yes,” he answered:

“If, therefore, the present case turned upon the question, whether a state might organize, arm and discipline its own militia, in the absence of, or subordinate to, the regulations of congress, I am certainly not prepared to deny the legitimacy of such an exercise of authority. It does not seem repugnant in its nature to the grant of a like paramount authority to Congress; and if not, then it is retained by the states. The Fifth [sic] Amendment to the constitution, declaring that ‘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,’ may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns, the reasoning already suggested.”

After acknowledging that the Second Amendment (mislabeled the “Fifth Amendment” in a typo) was probably irrelevant, Justice Story suggested that to the extent the Second Amendment did matter, it supported his position.

Justice Story’s dissent is inconsistent with the collective rights theory that the Second Amendment reduces Congress’s militia powers. Immediately after the Second Amendment hypothetical, Justice Story stated that if Congress actually did use its Article I powers over the militia, then congressional power was exclusive. There could be no state control, “however small.” If federal militia powers, when exercised, are absolute, then the collective rights theory that the Second Amendment limits federal militia powers is incorrect.

Scott v. Sandford In the 1857 Dred Scott case, the Supreme Court ruled that a free black man could not be an American citizen. Writing for the majority, Chief Justice Roger Taney listed the unacceptable (to him) consequences of black citizenship: Black citizens would have the right to enter any state, to stay there as long as they pleased, and to go where they wanted within that state at any hour of the day or night. Further, black citizens would have “the right to . . . full liberty of speech in public and private upon all subjects which [a state’s] own citizens might meet; to hold public meetings upon political affairs and to keep and carry arms wherever they went.”

Thus, Chief Justice Taney claimed that the “right to . . . keep and carry arms” (like the “right to . . . full liberty of speech,” the right to interstate travel, and the “right to . . . hold public meetings on political affairs”) was a right of American citizenship. The obvious source of these rights is the United States Constitution. While the right to travel is not textually stated in the Constitution, it has been found there by implication. The rest of the rights mentioned by the Taney majority are rephrasings of explicit rights contained in the Bill of Rights. Instead of “freedom of speech,” Justice Taney discussed “liberty of speech,” instead of the right “peaceably to assemble,” he discussed the right “to hold meetings,” and instead of the right to “keep and bear arms,” he discussed the right to “keep and carry arms.”

The Dred Scott case also held that Congress had no power to outlaw slavery in a territory, as Congress had done in the 1820 Missouri Compromise, for the future Territory of Nebraska. Chief Justice Taney’s discussion began with the universal assumption that the Bill of Rights limited congressional legislation in the territories:

“No one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the territory peaceably to assemble and to petition the government for redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witne

TRENDING NOW
UK Officials Continue to Push Knife/Gun/Cleaning Products Control

News  

Friday, April 13, 2018

UK Officials Continue to Push Knife/Gun/Cleaning Products Control

The UK’s descent into absurdity continued this week as officials announced new efforts to crack down on knives and other potentially dangerous objects. The renewed interest in banning sharp objects stems from a recent spate of killings in London. ...

Illinois: Committee Passes Bill to Allow Local Infringement of Second Amendment

Wednesday, April 18, 2018

Illinois: Committee Passes Bill to Allow Local Infringement of Second Amendment

The Illinois state Senate could vote on legislation to allow localities to infringe upon Second Amendment rights as early as today.  Senate Bill 2314 was moved to third reading after it had passed the Senate ...

Unfriendly Skies: Delta CEO Claims Bashing NRA Members is Good Business

News  

Friday, April 13, 2018

Unfriendly Skies: Delta CEO Claims Bashing NRA Members is Good Business

In the wake of the Parkland, Florida, murders, there has been an unusual amount of anti-gun and anti-NRA commentary by private corporations with plenty of problems of their own.   In February, Delta announced it was ending a ...

Pennsylvania: Semi-Auto Ban Legislation to be Introduced

Wednesday, February 28, 2018

Pennsylvania: Semi-Auto Ban Legislation to be Introduced

This week, Senator Wayne Fontana (D-Allegheny) started circulating a co-sponsorship memorandum soliciting members of the Pennsylvania state Senate to support a proposal to ban commonly owned semi-automatic firearms and standard capacity magazines in Pennsylvania.  Please ...

Illinois: Committees to Hear Gun Control

Tuesday, April 17, 2018

Illinois: Committees to Hear Gun Control

Today, the Illinois state House Judiciary-Criminal Committee will be considering a floor amendment that was added to House Bill 1470 to ration the exercise of Second Amendment rights. In addition, the state Senate Judiciary Committee will consider bills that would ...

The Opposite of Data-Driven Public Policy

News  

Friday, April 13, 2018

The Opposite of Data-Driven Public Policy

The Governor of Vermont, Phil Scott, signed gun control measures earlier this week – adding restrictive new laws including age restrictions on firearms purchases, bans on “high-capacity” (read: standard capacity) magazines, bans on bump stocks, and ...

Bailed-out Banks Launch Coordinated Attack on Law-abiding Gun Owners

News  

Friday, April 13, 2018

Bailed-out Banks Launch Coordinated Attack on Law-abiding Gun Owners

There is growing evidence that some of America’s financial elite want to create a world in which America’s public policy decisions emanate from corporate boardrooms in Manhattan rather than from citizens and their elected officials.  ...

Trial Judge Mocks the Late Justice Scalia While Upholding Expansive Gun Ban

Second Amendment  

News  

Friday, April 13, 2018

Trial Judge Mocks the Late Justice Scalia While Upholding Expansive Gun Ban

Gun owners have seen many outrageous instances of courts dismissing the importance, if not the very existence, of the individual right to keep and bear arms. But Judge William G. Young of the U.S. District ...

New Jersey: Senate Committee Approves Gun Control Bills

Wednesday, April 18, 2018

New Jersey: Senate Committee Approves Gun Control Bills

On Monday, the Senate Law & Public Safety Committee approved several gun control bills during a hearing that stretched over five hours. 

Washington: Seattle to Consider Legislation to Make Firearms Unavailable for Self-Defense

Tuesday, March 27, 2018

Washington: Seattle to Consider Legislation to Make Firearms Unavailable for Self-Defense

Seattle Mayor Jenny Durkan and Councilmember M. Lorena González have announced their intention to introduce legislation to impose a one-size-fits-all method of storing firearms as well as punishing victims of theft by requiring reporting of lost or ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.