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
Justice Department Terminates and Repudiates Operation Chokepoint

News  

Friday, August 18, 2017

Justice Department Terminates and Repudiates Operation Chokepoint

Current Justice Department leadership and Boyd should be commended for their forceful statement on this matter. This unequivocal repudiation of Operation Chokepoint should make a return to such political persecution unpalatable for all but the ...

Oregon: Governor Signs Anti-Gun Bill into Law

Thursday, August 17, 2017

Oregon: Governor Signs Anti-Gun Bill into Law

Yesterday, Governor Kate Brown signed Senate Bill 719A.  Based on a California law enacted in 2014, SB 719A will create a so-called “Extreme Risk Protection Order” (ERPO) that could be obtained by a law enforcement ...

Washington: Department of Labor & Industries Targeting Shooting Ranges

Thursday, August 17, 2017

Washington: Department of Labor & Industries Targeting Shooting Ranges

At the request of Public Health, Seattle & King County, the Washington Department of Labor and Industries has released a “first draft” of a new statewide regulatory scheme targeting lead and lead exposure in the workplace. ...

American Bar Association Continues to Attack Gun Owners, Due Process

News  

Second Amendment  

Friday, August 18, 2017

American Bar Association Continues to Attack Gun Owners, Due Process

The 2016 compilation of legislative policies of the ABA includes a raft of gun control proposals. In it, the ABA advocates for outmoded gun control measures, such as limits on the sale and possession of ...

Elizabeth Warren Urges Democrats to Champion Gun Control, Shut Down Debate

News  

Friday, August 18, 2017

Elizabeth Warren Urges Democrats to Champion Gun Control, Shut Down Debate

Just as many in the Democratic Party are seeking to moderate their message in order to once again compete as a national political party, some high-profile Democrats are urging the party to lurch further left ...

California: Ruling in NRA/CRPA Lawsuit Reigns in DOJ’s Misuse of DROS Fees

Friday, August 18, 2017

California: Ruling in NRA/CRPA Lawsuit Reigns in DOJ’s Misuse of DROS Fees

A California state court issued an important ruling in the NRA and CRPA supported case of Gentry v. Becerra, holding DOJ accountable for its historical mismanagement and misuse of DROS (dealer record of sale) account funds.

First, Carry No Gun: Police Chief Gets Inhospitable Reception at Texas Medical Clinic

News  

Friday, August 18, 2017

First, Carry No Gun: Police Chief Gets Inhospitable Reception at Texas Medical Clinic

We recently reported on claims that “gun safety advocates” in the Michigan Department of Health and Human Services have given a U.S. Marine Corps. veteran an untenable choice: custody of his grandson or his constitutional ...

Arizona Supreme Court Rebuffs Tucson’s Illegal Destruction of Firearms

News  

Thursday, August 17, 2017

Arizona Supreme Court Rebuffs Tucson’s Illegal Destruction of Firearms

On Thursday, the Arizona Supreme Court unanimously held that the state was within its authority to prohibit cities and counties from routinely destroying firearms obtained through forfeiture or as unclaimed property. State law holds that ...

Stossel Report Reinforces Urgent Need for Congressional Action

Second Amendment  

Gun Laws  

News  

Friday, August 11, 2017

Stossel Report Reinforces Urgent Need for Congressional Action

Award-winning journalist John Stossel published a report this week that provides a timely reminder that – nearly a decade after the Supreme Court’s landmark ruling in District of Columbia v. Heller – law abiding gun ...

California: 2017 Legislative Session Reconvenes on Monday

Thursday, August 17, 2017

California: 2017 Legislative Session Reconvenes on Monday

On Monday, August 21, the California Legislature will reconvene from Summer recess.  Below is the status on the firearm-related bills still moving through the legislative process.  Please send an email to your state legislators respectfully urging ...

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.