The Rise and Demise of the Collective Right Interpretation of the Second Amendment
2011
ABSTRACT
When first I wrote on the subject in 1974, Second Amendment scholarship was almost nonexistent, but the common belief was that the Amendment protected some manner of State right to control National Guard units, a belief universally accepted in case law at the federal level.
Thirty-five years later, the picture has radically changed. District of Columbia v. Heller, established the Second Amendment as an individual right, and McDonald v. Chicago, held it was a fundamental right incorporated under the 14th Amendment. There already are several appellate rulings on its scope, and approximately a dozen more test cases on the way.
This article explores the origins of the two competing theories of the Second Amendment – the “individual rights” approach which carried the majority in Heller and McDonald, and the variants of a “collective right” theory which was previously dominant in the lower courts, and one variant of which was endorsed by the Heller dissents. Careful analysis of states’ bills of rights of the Framing period suggests that two guarantees were desired, by different political factions. Framers closely adhering to the Classical Republican point of view favored protection for the militia as a system; those favoring the emerging Jeffersonian point of view favored guarantees of individual rights to arms. The Second Amendment has two clauses because it has two purposes.
This article also suggests that the prior Supreme Court ruling, United States v. Miller,3 was almost certainly a collusive case, and that its ambiguity is a product of very poor briefing and assignment to the exceptionally lazy Justice McReynolds, whom the Chief Justice understandably detested.
The “collective right” theory, while dominating case law circa 1990, had little standing throughout most of our history. It rose to prominence only in the lower federal courts beginning in the 1940s, and achieved its dominance only in the 1970s. Put in historical context, Heller and McDonald are not so much a dramatic change in constitutional interpretation so much as a rejection of a relatively recent trend in the lower courts, a trend that was subject to academic criticism even as it took form.
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.
As late as a decade ago, the federal courts’ interpretation of the Second Amendment was simple. Every circuit that had ruled upon it had held that it did not guarantee an individual right to arms for individual purposes. Rather, it reflected some form of “collective right,” either (1) a right of states to have militia systems, or (2) a right of individuals, but only to engage in state-organized militia activities.
Five years later this position had collapsed. In District of Columbia v. Heller, followed by McDonald v. City of Chicago, the Supreme Court accepted the individual right for individual purposes view. More astonishing, the first form of “collective rights,” which saw it as a right of States and had prevailed in three circuits, lost 9-0! The circuits quickly turned to determining the parameters of the right which they had previously thought nonexistent.
Such a change might be considered “revolutionary” in the modern usage of that word. But when the Second Amendment is placed in historical context, it becomes apparent that the change was revolutionary in the original use of the term – a change which returns things to the point of their beginning.
From the framing of the Bill of Rights onward, the individual right view (i.e., individual right for individual purposes such as self-defense) held sway in every venue – courts, commentators, Congress. The collective right view did not begin to gain acceptance in the federal courts until the 1940s, and did not become widespread until the 1970s. At the time of Heller, it was but a few decades old, and had been subject to serious scholarly challenge for most of that brief lifespan.
This article will examine the history of the two competing theories in terms of the Framing period, the developments in American law prior to the Civil War, and the understandings of courts, commentators, and Congress following that War. We will then review developments of the Twentieth Century, including the origins of collective right interpretation over that period.
The Rise and Demise of the Collective Right Interpretation of the