Guns a collective or individual right?

[leadcounsel]

IMO it only makes sense for guns to be an individual right. The nation gained its freedom not from the armory of a military, but from the rifles and weaponry of average citizens banning together. Our drafters recognized that a strong nation with a gun in every home would be impossible to defeat because of the lack of centralization of any armory. Also, our forefathers recognized that a government would be kept in check by gun ownership of the masses and individuals, not some centralized armory that could be neutralized by a tyrant governement/army.

However, according to the Brady Center for Preventing Gun Violence, they see it differently with regards to Roberts nomination.

Washington DC – Supreme Court nominee John Roberts, in response to questioning from Senator Russ Feingold (D-Wis.) about the Second Amendment, gave a completely distorted picture of the state of Second Amendment law.

On the issue of whether the Second Amendment guarantees only a collective right of the people to be armed as part of a state militia, or an individual right to be armed for private purposes, Roberts said this was an “open issue” left undecided by the Supreme Court. While acknowledging the Supreme Court’s opinion on the Amendment in United States v. Miller, 307 U.S. 174 (1939), Roberts said the Miller case had “sidestepped “ the issue. Actually, in Miller, the Supreme Court wrote that the “obvious purpose” of the right to keep and bear arms in the Second Amendment was “to assure the continuation and render possible the effectiveness” of state militias and that the guarantee of that right “must be interpreted and applied with that end in view.” What could be a clearer rejection of the individual rights view? Even Senator Feingold, who indicated his own personal agreement with the individual rights view, conceded in questioning Judge Roberts, that the Supreme Court in Miller “indicated that it saw the right to bear arms as a collective right."
In discussing the rulings of the federal appeals courts on the Second Amendment, Judge Roberts gave the following summary: “I know the Ninth Circuit thinks it’s only a collective right. I know the 5th Circuit thinks it’s an individual right.” This is a conspicuously incomplete account of the case law, creating the false impression that only two federal circuit courts (the 5th and the 9th) had decided the meaning of the Second Amendment and that the two were in conflict on the individual vs. collective rights issue. Actually, virtually every federal appeals court has decided this issue and only one, the Fifth Circuit in United States v. Emerson, has endorsed the individual rights view. Since the Emerson opinion in 2001 (which was joined by only two circuit court judges and actually upheld the gun law at issue), the individual rights view has been rejected by the Fourth, Sixth, Seventh, Ninth and Tenth Circuits. The First, Second, Third and Eighth Circuits also have issued definitive rulings rejecting the individual rights view. Judge Roberts managed to avoid mentioning this remarkable degree of judicial consensus on the meaning of the Second Amendment.
“This is very disturbing testimony from Judge Roberts,” commented Dennis Henigan, Director of the Brady Center’s Legal Action Project. “His answers on the Second Amendment issue faithfully echo the ‘spin’ on the case law typically given by the NRA and others who seek to use the Constitution as a weapon against reasonable gun laws. Those who believe that Congress, and the states, should have broad power to protect our Nation from the epidemic of gun violence now have reason to be worried about Judge Roberts.”

A list of federal circuit decisions rejecting the individual rights view of the Second Amendment follows.

FEDERAL APPELLATE COURT DECISIONS REJECTING INDIVIDUAL RIGHTS INTERPRETATION OF THE SECOND AMENDMENT

U.S. v. Parker, 362 F.3d 1279 (10th Cir. 2004)
U.S. v. Lippman, 369 F.3d 1039 (8th Cir. 2004)
U.S. v. Price, 328 F.3d 958 (7th Cir. 2003)
U.S. v. Graham, 305 F.3d 1094 (10th Cir. 2002)
U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002)
U.S. v. Bayles, 310 F.3d 1302 (10th Cir. 2002)
Silveira v. Lockyer, 312 F.3d 1052, rehearing en banc denied, 328 F.3d 567 (9th Cir. 2003)
Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2002)
U.S. v. Twenty-Two Various Firearms, 38 Fed.Appx. 229 (6th Cir. 2002)
U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001)
U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001)
U.S. v. Lewis, 236 F.3d 948 (8th Cir. 2001)
U.S. v. Hemmings, 258 F. 3d 587 (7th Cir. 2001)
U.S. v. Hager, 22 Fed.Appx. 130 (4th Cir. 2001)
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000)
U.S. v. Napier, 233 F.3d 394 (6th Cir. 2000)
U.S. v. Baer, 235 F.3d 561 (10th Cir. 2000)
U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 522 U.S. 1007 (1997)
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996), cert. denied, 522 U.S. 807 (1997)
Hickman v. Block, 81 F.3d 98 (9th Cir.), cert. denied, 519 U.S. 912 (1996)
U.S v. Farrell, 69 F.3d 891 (8th Cir. 1995)
Love v. Pepersack, 47 F.3d 120 (4th Cir.), cert. denied, 516 U.S. 813 (1995)
U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993)
U.S. v. Friel, 1 F.3d 1231 (1st Cir. 1993)
U.S. v. Nelsen, 859 F.2d 1318 (8th Cir. 1988)
U.S. v. Toner, 728 F.2d 115 (2d Cir. 1984)
Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir. 1984)
Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983)
U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978)
U.S. v. Graves, 554 F.2d 65 (3rd Cir. 1977)
U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976)
U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976)
U.S. v. Johnson, 497 F.2d 548 (4th Cir. 1974)
Eckert v. City of Philadelphia, 477 F.2d 610 (3rd Cir.), cert. denied, 414 U.S. 839 (1973)
U.S. v. Day, 476 F.2d 562 (6th Cir. 1973)
Cody v. U.S., 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972)
U.S. v. Decker, 446 F.2d 164 (8th Cir. 1971)
U.S. v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972)
U.S. v. McCutcheon, 446 F.2d 133 (7th Cir. 1971)
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971)
U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943)
U.S. v. Cases, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom.,
Velazquez v. U.S., 319 U.S. 770 (1943)

[Wildcard]

Unless I am wrong, all the times in the Constitution were "the people" are mentioned, it means the individual.

[Wildalaska]

Actually, virtually every federal appeals court has decided this issue and only one, the Fifth Circuit in United States v. Emerson, has endorsed the individual rights view. Since the Emerson opinion in 2001 (which was joined by only two circuit court judges and actually upheld the gun law at issue), the individual rights view has been rejected by the Fourth, Sixth, Seventh, Ninth and Tenth Circuits. The First, Second, Third and Eighth Circuits also have issued definitive rulings rejecting the individual rights view.

For what its worth, polemics aside, they are correct, although simplistic in their view.

Keep in mind that many of the circuit courts that have ruled on this issue have done so on the basis of Stare decisis

WildnowbacktofunAlaska

[johnbt]

Let's not confuse case law with what the Founding Father's actually wrote.



We shall see how it eventually plays out in the courts.

John

[shield20]

An individual right. One just has to read other comments made by the writers of the constitution and see what was on their minds, also their meaning of "the people", "militia" and "State". They did not write it in a vacuum - the proof is in the history, no matter what those anti-gun anti-constitution scum think.

[GeorgeF]

Individual right. I find it very funny that all the liberals see every other right in Bill of Rights as individual yet somehow the 2nd becomes a collective one. I wish to heck they had not put that militia term in there. PA has it right in their constitution - plain and simple:

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

Thats pretty hard to confuse - simple and straight-forward.

As an aside - it always galls me that the liberals LOVE to modernize all the other rights. First ammendment? Well of course they didnt have TV and radio back then, but the intent is there. Its all covered.

2nd ammendment? Oh, that only meant muskets and a militia. It has no bearing today.

Jerks.

[Wildalaska]

Let's not confuse case law with what the Founding Father's actually wrote.

Lets not confuse what WE THINK the founding fathers wrote with what the Courts, after a careful anaylis based on well settled priciples, say they wrote

WildforeveryplusthereisaminusAlaska

[Hugh Damright]

I see the Second Amendment as regarding a political or collective right, but in a free State the collective is the people. Who came up with the idea that, in a free State, the "collective" is the national guard or the military or something other than the people? That defies the whole idea of a "free State".

[Marko Kloos]

There's no such thing as a "collective right". Rights, by their nature, can only ever be individual. I'd give a relevant quote to buttress my position, but it's in my sigline already.

[Wildalaska]

Rights, by their nature, can only ever be individual.

The right of assembly comes to mind as a collective right...also there are collective rights under non western philosophies....

WildbutheyapplesandorangesAlaska

[Marko Kloos]

The right of assembly comes to mind as a collective right...

The right of assembly is an aggregate of separate individual rights. Individuals have the right to assemble in groups with other individuals, they don't magically gain that right whenever they are in a group.

[Eghad]

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.

I beleive when the founding fathers used the word people it did not mean any collective group nor government forces but the individual. The comma can be used for the setting off of introductory elements

The founding fathers realized that in the era of European professional armies a well trained milita was neccesary for the common defense. A milita wa usually composed of individuals in that time who were usually required to supply thier arms and a certain amount of ammuniton components.

I also beleive that when it came to the Bill of Rights that the founding fathers were pretty plain spoken.

The phrase right of the people apeears two other times in the Bill of Rights.

right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

then lets look at the last sentence

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

it makes it pretty clear to me that these were rights of the people/individual.

so my vote goes for individual right.

some folks just got confused.....and wandered off the path.

[newworldCurmudgeon]

So if the 2d ammendment is ruled not an individual right, can that ruling be applied to other rights like free speech.

[USP45usp]

It depends, what is the true wording of the 2nd? I've seen it two ways:

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.

Or

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.

With the original, you can't really see the comma's, so were comma's added or?

http://earlyamerica.com/earlyamerica...bill/bill2.jpg

(this was the original, original)

Then the extra comma's seem to appear. Yet all the same words were used, just comma placement was added.

Then you have to take into account, what the meaning really means; lets break it down with todays comma's:

A well regulated militia: The militia back then were 16 to 45 year olds. They were not regular army, they were the civilians of the time. Sure, the brady bunch and others say that the National Guard is the militia now, yet they didn't exist so therefore, our forefathers didn't mean the national guard, I doubt they even foresaw a national guard. And the guard doesn't take in anyone under the age of 18, so therefore, they did not mean this group of people.

being necessary to the security of a free state: The same holds as above. The National Guard are not "State Guard" or "State Militia". They are there for the state but are paid under federal checks. The state doesn't pay them, the federal government pays them. They are just inactive until activated federal employees.

the right of the people to keep and bear arms: Self explanitory(sp). The People, not the state, not the government, but the People. The People make up the population of the United States, it's not the right of the state, or the right of the federal government, but the right of the people. Right and People being the key words here.

shall not be infringed.: Now, here comes the play of both sides.. it says by this that the militia, and the People, rights should not be infringed. By this, even if you want to go liberal, means that both the militia and the People have this right, and it cannot be infringed. So, liberally, both the militia and the People have the same Right and that we, the People, can own and have any weapon that the militia owns or has, and that does include tanks, aircraft, and everything else that the national guard can have, and use.

And before you get into the 'nukes' crap and etc.. do you know of any national guard that carries around a nuke suitcase or has access to the nukes and the codes? I didn't think so.

Yet everything else, if you can afford, then it should be yours for the defense of the United States and for whatever State you reside in.

Wayne

[Hugh Damright]

There's no such thing as a "collective right". Rights, by their nature, can only ever be individual.

Perhaps you mean to say that only individuals have civil rights, but there is certainly such a thing as collective rights which include sovereignty rights and political rights.

I can see how someone might say that there are no collective rights in a monarchial State. But the people of a free State have collective rights such as:

the collective right to alter or to abolish government
the collective right to establish and to ordain a constitution
the collective right to defend their free government

But I think this individual/collective debate misses the point. I think there is another view of the Second Amendment, of the Bill of Rights, which seems to have more integrity. It is a view where "right" means "right according to a system of free government". For example, in a free government, to keep any one person or body of people from having too much power and becoming the master of the people, the government should consist of separate branches. This is not really an individual or a collective right, it is a political right: a principle of free government, something that is "necessary to the security of a free State".

I think the following examples from my Virginia Bill of Rights are evidence that, at least here in Virginia, it is preposterous to say that "there is no such thing as collective rights, and that rights, by their nature, can only ever be individual".

a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish [government], in such manner as shall be judged most conducive to the public weal.

That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

[Eghad]

Wayne,

I beleive that your picture is a 1796 reprint of the original Bill of Rights.

that is the original 12 amendments that were proposed

as we know 1 and 2 got the axe and 3-12 became the Bill of Rights.

If you look closely in the picture the right to keep and bear arms was numbered four....which threw me for a second...lol

[Eghad]

read for those of you with a minute.....

http://www.constitution.org/2ll/2ndschol/1amar.pdf

[Wildalaska]

The right of assembly is an aggregate of separate individual rights. Individuals have the right to assemble in groups with other individuals, they don't magically gain that right whenever they are in a group.

Then by its very nature its both individual AND collective...

WildgottodigoutmyblackstoneAlaska

[Eghad]

a collective is a group of individuals, without the individuals you would have no collective.

so it all starts with the individual.

do I have to be in a group to petiton the government for redress of a grievance?

I can join other like minded individuals and we can present one petition for the group or collective.

Do I have to be in a group to enjoy the fredom of speech?

Do I have to be in a group to exercise my right to keep and bear arms?

So I would again submit that these are individual rights first and foremost.

That they can be excercised in a group of like minded individuals also i.e the collective.

So which came first the individual or the collective?

[tyme]

Originally Posted by WildAlaska

Let's not confuse what WE THINK the founding fathers wrote with what the Courts, after a careful analysis based on well settled principles, say they wrote.

I agree. After all, what the founders wrote is so unclear that it was misinterpreted for over 100 years... only 20th century minds have been capable of "careful analysis based on well settled principles."

[Wildalaska]

After all, what the founders wrote is so unclear

In many cases, exactly

WildnosimpleanswersAlaska

[MicroBalrog]

Let's not confuse what WE THINK the founding fathers wrote with what the Courts, after a careful analysis based on well settled principles, say they wrote.

Because obviously the Court is always right.
Our minds are so confused we cannot read the plain text of the Constitution.

[Eghad]

The Bill of Rights had to be attached to the Constitution or the Constitution may never have been...........

where some of the ideas came from....

http://www.archives.gov/national-arc...of_rights.html

The Virginia Declaration of Rights

Virginia's Declaration of Rights was drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.
--------------------------------------------------------------------------------

A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Section 2. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

Section 3. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Section 4. That no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, nor being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

Section 6. That elections of members to serve as representatives of the people, in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assembled for the public good.

Section 7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.

Section 8. That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.

Section 9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Section 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Section 14. That the people have a right to uniform government; and, therefore, that no government separate from or independent of the government of Virginia ought to be erected or established within the limits thereof.

Section 15. That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.

[Wildalaska]

Because obviously the Court is always right.

Nope, but someone has to be the arbiter, and thats why there are three branches of goverment

Our minds are so confused we cannot read the plain text of the Constitution.

Change the word confused to biased to a particular socio/political weltanshauung and youve got the idea

WildwhyamievendebatingthisAlaska

[tyme]

Nope, but someone has to be the arbiter, and thats why there are three branches of goverment

You're forgetting branch #4.

"The inherent right of the people to reform their government, I do not deny; and they have another right, and that is to resist unconstitutional laws without overturning the government." --Webster

If the people cannot be an arbiter of the constitution, where do they get the right to resist or overturn the government?