Explore The NRA Universe Of Websites

APPEARS IN Second Amendment

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
Biden Reiterates Call to Ban 9mm Handguns

News  

Monday, July 26, 2021

Biden Reiterates Call to Ban 9mm Handguns

During a July 21 CNN “presidential town hall,” Joe Biden expressed his support for a ban on commonly-owned handguns. Responding to a question about the recent increase in violent crime, the career politician stated,

Great Expectations, Empty Promises: Gun Control in Washington State

News  

Monday, July 26, 2021

Great Expectations, Empty Promises: Gun Control in Washington State

For years, voters in the Evergreen State have been assured that if only they approve certain gun control ballot initiatives, they would “save lives” and reduce crime. The Washington Alliance for Gun Responsibility (WAGR), the organization pushing ...

How Anti-Gun Research Works

News  

Monday, July 26, 2021

How Anti-Gun Research Works

The objective world mistrusts most gun policy research because it’s clear the objective is to produce an anti-gun outcome rather than honest analysis. Politicians and professional activists claim the mantle of evidence but will ignore ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

News  

Monday, July 26, 2021

St. Louis Prosecutor Kim Gardner Ignores Violent Crime While Playing Politics with Gun Owners

Similar to many other urban areas of the country, St. Louis saw a dramatic increase in homicide in 2020. The Gateway to the West’s homicide rate per 100 thousand residents exploded from 64.5 in 2019 to 87.2 in 2020. The homicide ...

Louisiana: Betrayal at the Capitol

Wednesday, July 21, 2021

Louisiana: Betrayal at the Capitol

Yesterday, SB 118, Constitutional Carry, was defeated due to several Senators reversing their initial vote of support on the bill.  Two of the Senators who flip-flopped were Senators Patrick Connick (SD-8) and Louie Bernard (SD-31). 

Students “School” Antigun Education Officials on Civil Rights, Receive Large Settlements in Court Cases

News  

Monday, July 19, 2021

Students “School” Antigun Education Officials on Civil Rights, Receive Large Settlements in Court Cases

Last September we reported on the saga of Ka'Mauri Harrison, a Louisiana elementary school student who was suspended for having a BB gun that happened to come into view while the fourth grader was participating in online ...

NRA-ILA Applauds Rep. Claudia Tenney and U.S. House of Representatives’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Tuesday, July 20, 2021

NRA-ILA Applauds Rep. Claudia Tenney and U.S. House of Representatives’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Earlier this year, the Supreme Court decided to hear the NRA-ILA backed case challenging New York’s restrictive concealed-carry-licensing regime. NRA-ILA’s opening brief is located here.

Forty-Three Amicus Briefs Filed In Support OF NRA-ILA Backed Second Amendment Case Before Supreme Court

Wednesday, July 21, 2021

Forty-Three Amicus Briefs Filed In Support OF NRA-ILA Backed Second Amendment Case Before Supreme Court

Earlier this year, the Supreme Court decided to hear the NRA-ILA backed case challenging New York’s restrictive concealed-carry-licensing regime. And just last week, NRA-ILA filed the opening brief in this crucial case, which is located here.

NRA-ILA Applauds Sen. Ted Cruz and U.S. Senators’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Wednesday, July 21, 2021

NRA-ILA Applauds Sen. Ted Cruz and U.S. Senators’ Amicus Brief Supporting Second Amendment Case Before Supreme Court

Earlier this year, the Supreme Court decided to hear the NRA-ILA backed case challenging New York’s restrictive concealed-carry-licensing regime. NRA-ILA’s opening brief is located here.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

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.