States Whose Appellate Courts Take an Individual Rights View of the Second Amendment:

I had to come up with a list of them, and here it is: State v. Williams, 2006 WL 3438188, ¶ 20 (Wash. Nov. 30, 2006) (endorsing the individual rights view); Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Ky. Nov. 22, 2006) (same); Rohrbaugh v. State, 607 S.E.2d 404, 412 (W. Va. 2004); Stillwell v. Stillwell, 2001 WL 862620, *4 (Tenn. Ct. App. 2001); State v. Anderson, 2000 WL 122218, *7 n.3 (Tenn. Crim. App. 2000); State v. Nickerson, 247 P.2d 188, 192 (Mont. 1952) (same); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001) (treating the Second Amendment as on par with the Louisiana Constitution’s right to bear arms, which is clearly an individual right); Hilberg v. F.W. Wollworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988) (likewise as to the Colorado Constitution), overruled as to another issue, Casebolt v. Cowan, 829 P.2d 352, 360 (1992).

The substantial majority (by a lopsided vote, 7 or so to 1) view among federal circuits remains that the Second Amendment only secures a collective right; some state courts (for instance, the New Jersey Supreme Court) take the same view. My point here is simply that there's a pretty substantial split among the courts, with several courts accepting a collective rights view and several others (plus Congress and the Justice Department, notwithstanding this dissent from the FAA, which I assume doesn't represent a considered reversal of the Administration's view) taking the individual rights view.

juris_imprudent (mail):
I believe most of the circuits rely on pre-incorporation SC decisions (esp. Cruikshank) to arrive at the "collective" result. Which is faulty, but not nearly as spectacular a feat of juris-slapstick as the 9th in Hickman - misreading the undisputed facts (let alone the conclusion) of U.S. v. Miller.
1.3.2007 2:05pm
A tangential fed courts question regarding the Madisonian Compromise:

I take it that state courts are inferior only to the SCOTUS, and not lower federal courts; and therefore the latter is only persuasive, rather than binding, authority.

Q: Nonetheless, if a clear fed court majority exists on a question of a federal right, how "unpersuasive" must that position be in order for a state court to feel comfortable disagreeing with it? I would think that a 7-1 federal majority on a federal question would have to be quite clearly wrong (meaning, perhaps, that it has been subsequently questioned/undermined by a SCOTUS opinion) before a state court would feel comfortable disagreeing with it.

Are state courts and lower federal courts supposed to be of perfectly equal authority/competence in interpreting federal rights?
1.3.2007 3:42pm
Spartacus (www):

Are state courts and lower federal courts supposed to be of perfectly equal authority/competence in interpreting federal rights?"

I believe so, as long as the state court has jurisdiction.
1.3.2007 3:52pm
BruceM (mail):
I recall the 5th Circuit in Emerson endorsed an individual rights of the 2nd Amendment only to the extent that such a right does not help a criminal defendant.
1.4.2007 1:17am
Sevesteen (mail):
Can someone explain what a collective right is, what it protects and how it can even be infringed?
1.4.2007 1:53am
Mark Buehner (mail):
Collective rights are supposedly protections for an entire group or population (such as the right to self-determination). The counter-argument is that collective rights are sort of an 'emergent property' of individual rights... ie self-determination of a population is meaningless without voting rights for individuals. Collective rights have more than a passing tinge of Marxist thought built into them in this respect- ie if 'the people' have rights the individuals dont need them.

The biggest problems with the collective rights argument in a 2nd amendment context is that it is redundant. Do you really need the 2nd amendent in your bill of rights to protect the right of a government to have weapons? Its absurd on its face. Mankind somehow eeked along for thousands of years without codifying the right of governments to bear arms. Somehow Hamarabi got by without inking that one.

The second biggest (and perhaps more disturbing) problem is the context. No-one is arguing that the amendments either before or after the 2nd are collective rights. If there were a collective Freedom of Speech that would essentially mean that 'society' has a right to free speech, but no particular individual does.

The text of the 1st amendment, for instance, notes the right of 'the people' to peaceably assembly. Assumedly from a collectivist standpoint no one person necessarilly has the right. A devoted literalist could make an argument that the Bill of Rights specifies 'people' exactly, and therefore there is literally no protection for a person to assemble in a group of 1.

Needless to say in the context of the bill of rights none of this makes a lick of sense. The entire purpose of the first ten amendments was demonstrably to protect the rights of the people from overreaching by the governmnet. To argue that the 2nd amendment protects the rights of the government from being disarmed by the people is frankly assinine.
1.4.2007 10:04am
Sevesteen (mail):
OK, thanks. It doesn't make sense to me, either, but I thought it was my layman's misunderstanding of legal definitions.
1.4.2007 9:42pm
State v. Williams only had a "throwaway" line: "In the present case, we are similarly concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24."

This wasn't necessary for the decision. And Washington's Constitution clearly protects an individual right, so the "concession" doesn't really matter to the majority. I think this is a pretty thin reed to conclude that, on the basis of Williams, Washington's courts have held that the 2nd Amendment protects an individual right.
1.5.2007 8:01pm