Collective right new???

This decision was from 1942, which would put it well before 1970 and says that the Second Amendment: was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.

That sounds pretty "collective" to me. Not only that it's in pretty clear language that it was not adopted with individual rights in mind.

From U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942)

The Second Amendment to the Constitution of the United States provides: "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."

The appellant's contention is that if the statute under which this prosecution was brought is to be applied to a weapon of the type he had in his possession, then the statute violates the Second Amendment.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country, where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated militia protected by the Second Amendment.

Collective Right Anathema to freedom?

I would argue that the entire concept of a “collective” right is an anathema to freedom. Some please tell me what ‘collective right’ they have, and how they can assert it.

Well, Those who insisted the Second Amendment was included in the Bill of Rights had a well founded fear of standing armies. They knew how often standing armies, established in the name of defending against external enemies, had instead used the power with which they had been entrusted to enslave the very peoples they had pledged to protect. Those men of wisdom also recognized how the power of tyrants almost always required control over a standing army capable of imposing the tyrant's will on an unwilling populace. The Continental Congress had no intention of allowing the liberty they sought for Americans to be easily usurped - and they were also determined not to create the means for a tyrant to seize the reins of power from the people.

A large part-time people's army reduces the likelihood of war as members derive the great bulk of their income from civilian employment thus are less than enthusiastic about interrupting their civilian lives and careers by marching off to an unnecessary war, while many citizens are far less likely to support a war of aggression if it is likely a family member will have to fight it, factors which help explain Swiss neutrality and the fact that it has not fought a war in almost 500 years (not counting a very brief civil war in 1847 that did away with the last vestiges of feudalism). Being a member of a military organization promotes discipline, comradeship and self-reliance, which fosters social cohesion and an egalitarian, democratic mindset thanks to the mixing of people from different social classes and cultural groups who would otherwise have little if any close contact with each other.

You would find that the founders also would be in complete disagreement:

"Standing armies [are] inconsistent with [a people's] freedom and subversive of their quiet." --Thomas Jefferson: Reply to Lord North's Proposition, 1775. Papers 1:231

"It astonishes me to find... [that so many] of our countrymen... should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. This is a degeneracy in the principles of liberty... which I [would not have expected for at least] four centuries." --Thomas Jefferson to William Stephens Smith, 1788. (*) FE 5:3

"The spirit of this country is totally adverse to a large military force." --Thomas Jefferson to Chandler Price, 1807. ME 11:160

"The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so." --Thomas Jefferson to Thomas Cooper, 1814. ME 14:184

"When a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army." -- Luther Martin, Maryland delegate to the Constitutional Convention

Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures ith respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown. The Congressional Register, 17 August 1789

"A distinction between the civil and military [is one] which it would be for the good of the whole to obliterate as soon as possible." --Thomas Jefferson: Answers to de Meusnier Questions, 1786. ME 17:90

It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens, to be used at individual discretion, except in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws. Adams, John, A Defence of the Constitutions of Government of the United States of America,1787-88, p. 474-5

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

Mr. Madison has introduced his long expected amendments. They are the fruit of much labor and research. He has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small talk of their debates. It contains a bill of rights, the right of enjoying property, of changing the government at pleasure, freedom of the press, of conscience, of juries, exemption from general warrants, gradual increase of representatives, till the whole number, at the rate of one to every thirty thousand, shall amount to ____, and allowing two to every State, at least. This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms.

Risum teneatic amici? [Hold your laughter, friends.]

Upon the whole, it may do some good towards quieting men, who attend to sounds only, and may get the mover [Madison] some popularity, which he wishes. Fischer Ames, letter to Thomas Dwight, June 11, 1789

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. Joseph Story, Commentaries on the Constitution 3:§ 1890

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).

So, your right to be free from a large military establishment was of the highest importance!

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms "collective" and "individual" right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms--it's scope). Saying that the right is collective and belongs to the States isn't really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn't come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can't comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn't really define what exactly was being protected. The State's right to have militias? A personal right to own firearms outside of militia service?

That's why the question that the Supreme Court allegedly was considering in Heller was:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Justice Stevens pointed out that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. Justice Stevens's Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I paraphrase the dicta to make it comprehensible to modern minds as:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings."

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was "no" for a multitude of reasons. The Heller court had other dilatory tactics if it couldn't give the proper answer, but I digress...

The Founders came from the common law tradition and didn't totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State's legislative power, it was subject to the full scope of the state's police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no "gun rights" in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan's collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading "blackpowder" guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK's Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don't even bother to mention gun control. Maybe if someone wipes out an entire city...

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by "gun rights" advocates to buttress their position:

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”"The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of "defense of themselves" and "killing game" is mentioned. The problem is that the public can be disarmed for "unless for crimes committed, or real danger of public injury from individuals". This raises a few questions in my mind such as how strongly are the private purposes protected in light of "real danger of public injury from individuals". I believe that the fact that private purposes are mentioned in this passage, but aren't in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).

Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? "How will your militia be armed?"
Key words to clue you in: "subject to militia duty", "Common defence", security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is "no", then this is a private use.
Key words to clue you in: "defense of his home, person and property", family, hunting, recreational use, purpose of killing game, private use, etcetera.


Anyway, if one goes to the primary sources such as Patrick Henry's comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.

or Patrick Henry's "That every man be armed" speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects...May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the "growing indifference to any system of militia discipline"

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an "individual right" we find a distinct civic tone. Why would one need "some organization" if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware's from 1987, Nebraska's from 1988, and the change in language between Idaho's provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (right to keep and bear arms enacted 1988).


Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law." Art. I, § 11.

I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.

Joe Biden, DC v. Heller, and the Individual Right

When I thought I wasn't interested in the US Elections, the democrats give the ultimate fuck you to the RKBA crowd by putting Joe Biden in the Vice-presidential spot. You know, Joe Biden the bloke who told the dickless asshole with the assault rifle "if that is his baby, he needs help.I think he just made an admission against self-interest. I don't know that he is mentally qualified to own that gun. I'm being serious. Look, just like me, we go around talking about people who own guns."

Here it is for your viewing pleasure:




Now, DC v. Heller, S.Ct Docket # 07-290, 554 U.S. ___ (2008) has come up with the most fucked up interpretation of the Second Amendment. Well, fucked up for everybody except the gun grabbers. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." That means pretty much that as long as guns are available, they can be regulated.

What did DC do? They went back to the pre-1976 law, which was still the strictest gun laws on the books! It just allowed for the possession of .38 revolvers with 4 inch barrels! Well, Heller can have his gun for self-defence.

Hahahahahahahahahaha!

Not to mention dickhead Bob Levy has come out to say that the Second Amendment cannot infringe upon property rights. He supports those business owners who want to keep guns off their property. What was he thinking?

Bob, if you lived in Germany in the 20s you would have supported Hitler because he hated Communists. I mean all that anti-semitic stuff wasn't really pertinent was it?

The problem is that the self-defence interpretation from New Scholarship which has become precedent for the time being only came about in the last 20 or so years.

As I like to say: show me where in the Second Amendment the term "self-defence" is mentioned! They only time the word defence is used in the Constitution is in regard to the "Common defence".

So, after the courts get pissed off with the frivolous law suits from felons who want to own guns and trying to sort of which right takes precedence self-defence or property, there is only one proper interpretation of the Second Amendment: the collective/civic/public/militia right. That is the one that ties the Second Amendment guarantee to ensuring the efficacy of Article I, Section 8 militias.

Anyway, the upshot is that the Democrats will all say they can't ban guns, that's unconstitutional.

Thank you Antonin Scalia for a totally screwed up and unscholarly piece of shit decision. You can't base law upon a logical fallacy (argumentum ad populum).

US V Rybar on the Second Amendment

Editorial note: This is the Section of U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) that deals with Rybar's Second Amendment defence. It addresses the arguments found in the pro-Heller briefs and finds them without merit.


Second Amendment

As an independent basis for his argument that section 922(o)
is unconstitutional, Rybar relies on the Second Amendment of the
Constitution, which provides: "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." U.S.
Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court
decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939), where the Court upheld the
constitutionality of a firearms-registration requirement against
a Second Amendment challenge. Rybar draws on that holding,
relying on the Miller Court's observation that the sawed-off
shotgun in question had not been shown to bear "some reasonable
relationship to the preservation or efficiency of a well
regulated militia." Brief of Appellant at 24-25; Miller, 307
U.S. at 178, 59 S.Ct. at 818. Drawing from that language the
contrapositive implication, Rybar suggests that because the
military utility of the machine guns proscribed by section 922(o)
is clear, a result contrary to that reached in Miller is
required, and the statute is therefore invalid under the Second
Amendment.

Rybar's reliance on Miller is misplaced. The language Rybar
cites is taken from the following passage:

In the absence of any evidence tending to show that
possession or use of a "shotgun having a barrel of less than
eighteen inches in length" at this time has 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.
Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its
use could contribute to the common defense.

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court's suggestion that
the firearm before it lacked the necessary military character, it
did not state that such character alone would be sufficient to
secure Second Amendment protection. In fact, the Miller Court
assigned no special importance to the character of the weapon
itself, but instead demanded a reasonable relationship between
its "possession or use" and militia-related activity. Id.; see
Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942)
(susceptibility of firearm to military application not
determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87
L.Ed. 1718 (1943). Rybar has not demonstrated that his
possession of the machine guns had any connection with
militia-related activity. Indeed, as noted above, Rybar was a
firearms dealer and the transactions in question appear to have
been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the
penumbra of membership in the "militia" specified by the Second
Amendment by quoting from 10 U.S.C. section 311(a):

The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in
section 313 of title 32, under 45 years of age who are ...
citizens of the United States....

Rybar's invocation of this statute does nothing to establish
that his firearm possession bears a reasonable relationship to
"the preservation or efficiency of a well regulated militia," as
required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can
claimed membership in a hypothetical or "sedentary" militia
suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th
Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
(10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106
(6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d
1185 (1976).

Rybar boldly asserts that "the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment." Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court's precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms. See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.

Are you reading this, Justice Alito?

This blog started as a joke after I realised that my dog has been in more courtrooms than Harriet Miers. No joke. Ask Arnie Silverstein and his partner; they will verify this. There is a District Justice in Montgomery County who also knows I come to court because she brings her dog as well. So, there are dogs out there who have been in Court more than some Judicial nominees, but that is not the point.

Neither is the point that I find this blog comes out top in the search results when I google certain subjects.

I do this for myself, but I wouldn't mind the recognition. Or money. Michael is truly a slacker given that friends he went to school with are in positions of power: Governors, Judges, Presidential advisors, or high government officials. No, Michael is the honest lawyer, which means he is BROKE .

The real point is that in conversations and my early blogs, I pointed out that Justice Alito was on the three judge panel that decided U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996). That was the case which earned him the nickname "machinegun Sammy". But, I have been pointing out as frequently as I can that this case addressed the personal right interpretation of the Second Amendment which was raised as a defence by Rybar. The Rybar court held that the Second Amendment was a collective right, which means that it is to ensure the efficacy of the Militia institution set up under Article I, Section 8.

Justice Alito did dissent, but he did so in a manner similar to Justice Kennedy did in US v Lopez, 514 U.S. 549 (1995) which was to say that he would have found the machinegun statute constitutional had Congress provided a finding that these items were in interstate commerce.

Now, I have raised the question whether this means that Justice Alito follows the collective right interpretation of the Second Amendment whenever I can. I am also curious if stare decisis precludes Justice Alito from taking the individual right interpretation, which most commentators are not sure. I would like to think that it does. Or, failing that, I would like to think that Justice Alito is what I consider a true conservative rather than the idiots who call themselves conservative these days. This means that Justice Alito knows the accepted judicial interpretation of the Second Amendment, which is that it is to ensure the efficacy of the militia set up under Article I, Section 8 and has nothing to do with self-defence, hunting, or shooting sports in general.

It is even sillier to say it has something to do with the ability to revolt against a "tyrannical government".

As I have before, none of those concepts are mentioned in the Second Amendment, and the right of revolt is totally ridiculous as it goes against everything in the Constitution.

I know people who know Justice Alito and they say he is a very intelligent and considered judge. I would like to think that he is not swayed by poor arguments such as the majority of people believe that the Second Amendment guarantees a personal right to things which are not within the scope of that Amendment (self-defence, hunting, shooting sports in general, or "revolt"). It is fallacious reasoning to be swayed by numbers especially when those numbers are wrong.

I read the briefs for Heller that argue the personal right and I see fallacious arguments, false history, misquotations,and so on. The fact is that the Second Amendment has been interpreted as being related to the preservation or efficiency of a well-regulated militia.


The court denied Rybar's motion to dismiss Counts I and III.
The court held that section 922(o) was "a valid exercise of the
authority granted to Congress under the Commerce Clause" and was
compatible with Second Amendment protections "because this
defendant's possession of a machine gun was not reasonably
related to the preservation or efficiency of a well-regulated
militia."

OK, that may not be the best excerpt from the Rybar decision, but it makes my point.

Please, Justice Alito, you have shown reason in interpretation of the Second Amendment in the past. I hope that you can persuade the other justices that the Personal right interpretation is fallacious and dangerous to society.

You are being "dogged" in this regard.

Note: I just googled "Justice Alito Rybar" and this came up toward the front of the results! I hope Justice Alito reads this!