I haven't seen anyone else cite it; it's from the Journal of the Virginia House of Burgesses, June 2, 1757, reporting on a "Petition of sundry Freeholders, Inhabitants of the County of Middlesex," which set forth (emphasis added):
That a Sum, not exceeding £1000, was expressly limitted by Law, for constructing a Fort at Winchester, and they are informed £10,000 hath been expended. — That a well regulated Militia is the true and natural Defence of every free State, and praying that the Expence of building the Fort, and the Conduct of the Forces in the Pay of this Colony may be enquired to: And that if it is necessary to lay any more Taxes the same may be laid on the nett Produce of the Planter's labor, and raised within the Year ....
Further evidence, it seems to me, that "free state" in the Second Amendment means "free country", and not "state of the union independent of undue federal power." In 1757, no-one was thinking of Virginia as a "State," or talking about its independence to the colonial legislature. But, as Blackstone made clear in 1765, people were reasoning — whether or not correctly, or in a way applicable to modern conditions — that a free (in the sense of nontyrannical) country was best defended by the militia. And if the Colony of Virginia was seen as part of the free State called Great Britain, then it's quite reasonable that D.C. would be part of the free State called the U.S.
Does this Sound Familiar?
It's from Queen Anne's Bill of Rights from about a century previous to the US one.
The essence of the Complaint : The Remedy: Well, the US Founding Fathers believed in Freedom of Religion. None of this anti-Papist BS, though I note that a former Exalted Cyclops of the KKK is still in Congress!
But they too were agin' a standing army (unless with the consent of Congress), and for the rights of individuals to have arms for their defence. And not just personal defence, but defence against any tyrant or enemy, foreign or domestic. "Militia" in this context should be seen in the same context as the "spontaneous rising out" of the local populace to repel an invader, as permitted within the LOAC and Geneva protocols.
I do recall that Lee took command of the Army of Northern Virginia because he felt he had to defend his country, that is, the state of Virginia. Perhaps one can understand the Civil War as being, partly, about the meanings of the words 'state' and 'country'. I remember Ken Burns saying in the PBS series The Civil War that prior to the conflict people said "The United States are..." -- after the war, they began to say "The United States is..."
If so, then the arms which are constitutionally protected are at a minimum those which are 'defensive' in nature. In that context, it's worth noting that police manuals universally emphasize the defensive nature of all the weapons police have available.
Well, yes, but expecting collective rights' scholarship to make sense misunderstands the nature of the genre. It's not an objective effort to understand the amendment, it exists solely to provide jurists who don't like the 2nd amendment with a fig leaf when they rule that it can be violated. As such it doesn't have to make sense, it just needs a certain superficial plausibility.
If the state of Montana created a well regulated citizen militia consisting of all citizens, and armed those citizens with fully automatic M16s and required them to bear those arms at all times, would they have the right to keep and bear those arms in the collective? Or would some other clever legal opinion render the collective right meaningless? A collective right is legal nonsense, mumbo jumbo intended to destroy a part of the Constitution through the personal opinion of judges.
Ah, you missed the 20th century. Easy: you can collectively own the right to all property, the state will keep it in trust for you. You can collectively possess free speech, the state will be your organ. You can collectively have liberties that do not violate these collective rights, such as the economic liberty of a basic income given you by the collective and so forth. Look up "Soviet Union" for more about this.
The construct of a "collective right" shouldn't be that hard to fathom.
Ponder, if you will, the "the right of the people peaceably to assemble" from the First Amendment. That's obviously a "collective right" and not an "individual right", since a single person cannot "assemble".
from Rousseau's Social Contract, 1762, chapter six,
Granted, this was translated, no doubt, from French.
"This public person, so formed by the union of all other persons formerly took the name of city, and now takes that of Republic or body politic; it is called by its members State when passive. Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one for another: it is enough to know how to distinguish them when they are being used with precision."
Ponder, if you will, the "the right of the people peaceably to assemble" from the First Amendment. That's obviously a "collective right" and not an "individual right", since a single person cannot "assemble".
But indivduals do possess the right that is enshrined here. It is simply also collectively held. The question posed was how can you have a collective right without an individual right. Only if you think the right to assemble does not contain an individual right can you use that an as example. That would mean that things that you do when you peacefully assemble such as discuss politics (free speech), hand out literature (freedom of the press), chain yourself to the doors in protest, march the streets shouting slogans, etc to the extent they are protected by the "right to assemble" are only held collectively and if you do them alone you are subject to different laws. However, in the USA this is not the case.
Its explanatory value could imply restrictive value in the sense that arms which aren't appropriate to a militia (e.g., personal nukes) aren't covered, but not in the sense of denying the right outside a "free state" or outside a militia.
Well, much of this is semantical, but the "individual" right to assemble, to the extent it is "individual", is contingent upon the right of persons to assemble, i.e., the collective right.
As for the second amendment, I don't think the collective right argument is that there is no "individual right" to bear arms; they're simply arguing that the "individual" right is contingent and circumscribed by the existence of a well-regulated militia, just as the individual right to freely practice your religion requires the existence of this collective thing we call "religion".
In other words, from a collective right standpoint, talking about an individual right to bear arms as something independent of the collective right, is like Reg asserting his "right" to have a baby independent of the fact that he lacks a womb. We may technically "have" the individual right, but without the womb/militia, its meaningless.
I think you missed my point. Clearly you can't have an individual right to form a militia - it requires more than one person - just as you can't have an individual right to assemble for the same reason.
However, you do possess the rights that make up the right to assemble -- free speech, freedom of the press, etc. Similarly, you must possess the rights that make up the right to form a militia, i.e. the right of self defense and gun ownership.
A collective right not based on individual rights is void of meaning. This we learned in Soviet Russia.
- And your religion example misses the point to - there is a "thing we call guns".
While religion may be a collective practice, the individual right to religious freedom does not require you to be a member of a collective, whether recognized or otherwise.
Is the PrR "state" (i.e., colony) equivalent to the PoR "country" (i.e., the USA)? or to the PoR state?
Is the PrR colonial "militia" equivalent to the PoR state militia, National Guard or what have you? Or is it equivalent to the "state" (i.e. U.S.) armed forces? And if so, under the collective rights view, are firearms then, mutatis mutandis, the monopoly of the national armed forces?
Colonials in 1757 of course would not have conceived of the 13 colonies collectively as a "state." And when they spoke of the militia being a guardian against tyranny, they were thinking of the colonial militia as a bulwark against the English, who were bit by bit coming to be regarded as distant and even foreign. (Very different from Protestants speaking of the need to arm themselves against their fellow citizens in the aftermath of the 16-17th century national and civil religious wars) To be sure, the framers had English tyranny in mind when drafting the Bill of Rights, but did they conceive of the limited national government they had designed as a potential colonial overlord, requiring a home-grown army to defend against it?
I am interested in history (as opposed to guns). I'd be interested in knowing how the colonials actually thought about and experienced the issue. Any good nonpartisan, nontendentious books to recommend? My guess is that the same words came to mean very different things as modified by experience in the run-up to the Revolutionary War and in its aftermath. (To say nothing of what they mean to us today in, say, gun-crime-infested cities or rural hunting enclaves.)
I simply disagree with this. The right of the people to peaceably assemble stands on its own. While it's true (as you point out) that people often assemble to exercise some other right (prayer, speech, etc.), the text of the Assembly Clause is independent of the other clauses.
I can envisions gatherings of people that don't involve the exercise of some other individual right -- say, a group of space enthusiasts that meet regularly to look through a telescope.
But as to underlying argument that "a collective right not based on individual rights is void of meaning" -- do you really believe this? Let me put it to you this way. Let's forget what the Constitution says, and think about what it could have said. Suppose the Founders wanted to ensure the right to bear arms but only insofar as it related to a militia. In other words, they weren't trying to protect "the right to personal self-defense" or "the right to individual gun ownership", because (in my hypothetical) they didn't believe those were natural rights. Are you saying my scenario is impossible, meaningless and/or non-sensical?
Not Queen Anne's--she's a bit later. This is adopted by Parliament in 1689 as restraints on the authority of William &Mary, who Parliament invited to occupy a throne recently vacated by the disgusted James II.
On a more serious note, it's important to keep the 1757 debate in proper historical context. I don't know much about what was going on then, but I would be willing to bet that Virginia's elite were concerned that they have adequate resources to defend against/attack neighboring Indian nations, as well as suppress slave revolts. They would not have wanted to depend on the King's army for either purpose, not only because of concerns that London might have different views about which actions were justified (almost certainly true), but also because of the time lag involved in getting troops in place. Furthermore, powerful local militias would have carried with them military titles, such as "colonel" and "general," to an elite population somewhat starved for honorifics. While 1757 is too early for the later rebellious spirit that led to the Revolution, I think it is NOT too early for concerns about political patronage, and who was ultimately in charge of the colonies.
This is news to me, and I would have thought that Joyce Malcolm's two books on the subject would have mentioned t.
In that situation, the single person is protected by the Free Speech clause, not the Assembly Clause.
True, but the word "religion" itself implies a collective. That's why the word is "religion" and not "conscious".
And while courts (wisely, in my view) don't keep a laundry list of bonafide "religions", and don't require that a person necessarily be a member and ACTIVE in a religion, they do make the distinction between collectively-held beliefs (even if that "community" is very very small), and so-called "religious" beliefs held by a sole individual. This is why I can't kill someone and use a First Amendment defense that I was doing it based on my own personal "religion".
The meaning of militia throughout this period is consistent: it is the entire body of free white men, usually 18-45 years of age (but older in some colonies), with a few exceptions (depending on the colony, lawyers, millers, elected officials, clergy, and conscientious objectors were exempt). A standing army was regarded with considerable suspicion right into the early Republic period, because it was identified with the corruption and immorality of the British Army. Free men should be prepared to defend the nation themselves, was a common view, and more importantly, the people would not be a threat to the liberties of the people in the same way that the hired hands of a mercenary army might be.
Not in 1757, when most Americans still regarded themselves as loyal subjects of the Crown. It is astonishing how rapidly this attitude changed after the 1763 peace treaty ended the war.
The militia was regarded as a bulwark against foreign invasion and slave revolt in 1757. In English legal theory, the militia was also a barrier against mob rule--but in America, royal governors learned quickly enough that calling out the militia was potentially more dangerous than letting a mob get their way, because the militia and the mob were often one and the same.
Yes. See Antifederalist criticisms such as Patrick Henry's speech at the Virginia ratification convention about a President who wanted to be king, using a standing army to impose his will.
Hmmm. Let me suggest my new book Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007). You will find more information about attitudes towards militias and standing armies than you will ever want to know.
A fair question. Assuming your hypothetical case is true for a minute, let me answer your question with some of my own:
1) If the right is nullified, who has standing to sue in a court?
2) Since the States and Federal government have plenary power to organize militias and draft citizens into them, what could possibly prevent state militia members from keeping guns?
3) If the state of Montana created a well regulated citizen militia consisting of all citizens, and required those citizens to arm themselves with fully automatic M16s, would they have the right to keep and bear those arms in the collective? If the Federal government prosecuted those citizens for violating the National Firearms Act of 1934, would those citizens have standing to sue the Federal Government? Would they prevail under your hypothetical Second Amendment?
If you had a million fellow adherents, human sacrifice wouldn't be protected. There's a long argument about whether the free exercise clause should be based on actions or beliefs. For example, the federal polygamy statute, even though it largely affected Mormons, wasn't specific to the beliefs, but to the actions. Whether you had multiple wives because you were a Mormon, or a randy atheist, didn't matter: the action was prohibited, not the belief.
Do you not also possess the right to look through a telescope on your own? I think you do.
And yes, a collective right to something without the underlying individual right is not truly a right. It is not a right at all if it is granted to "the collective" as a whole, i.e. to all the people which is then represented by the state. This is best shown by the example of communism and the idea that the collective right of the people to property was protected, without an individual right to property.
However, a smaller group as a collective can have "rights" without an individual right to some extent - like if a corporation has rights that no individual has, or a religious group or a militia -- however we recognize those as privileges, not rights. A group cannot possess a right. And the right to belong to a group - the right to organize, to assemble, to join a militia is an individual right, even if it is dependent on a collective or group (though you can say that the "right to assemble" is collective in some sense because you can't assemble on your own, the right to join an assembly or organize an assembly must be individual).
And that individual right to belong to a group is only meaningful as a right (it will only truly protect the underlying right in question) if it is based on the rights that the "collective" right is founded on. So, the right to assemble is only meaningful if the right to free speech is protected at the individual level. You can imagine a country where the right to assemble is granted but not the individual right to free speech - say, the Soviet Union. Trade unions and party groups had the right to assembly and to collectively deliver political opinions, distribute pamphlets, vote etc. But the underlying individual right to free speech was not granted. What do I mean that this is meaningless? Well, whatever right you are trying to protect (freedom to organize against something, like the government) is voided because the collective is not you individually, and is easily manipulated by the thing you are trying to fight against, the government. Without the individual right, the right that the individual has as part of the collective dissipates.
How does this connect to a militia? Well, if the right to be part of a militia is also useful because you can fight against the state, you can imagine how the militia may also become state directed. Collectives must be defined, so any collective right is only a contingent right or privilege, because a collective unlike a person does not possess inherant rights nor is it perfectly definable and boundaried like a person, nor is it you. For your rights to be protected, they must be protected individually. For an example of the individual's right within the collective being dissipated if it is only protected at the level of the collective, we have J.N.Heath from above telling us:
the answer from every court since J. Marshall is no: Congress defines militia enrollment of the organized militia, and can abolish the state militia by drafting its members into the army.
The moment that your right is only protected at the collective level, it vanishes there too.
This is a poor example because you can't kill someone and use the First Amendment defense that you belong to the Catholic Church (over a billion members).
So if everyone else leaves, do the cops have the power to make the last individual go home, because he no longer has a right to "assemble"?
I'm not trying to punt, but that's all governed by laws regarding standing to sue. And that depends on the subject of a lawsuit. Presumably though, it would not be an individual gun owner, since HE (or she) suffers no individual harm to a right that he possesses (under my hypothetical).
Nothing, as far as I can tell, so long as the ownership and use relates to a "well-regulated militia"
3) If the state of Montana created a well regulated citizen militia consisting of all citizens, and required those citizens to arm themselves with fully automatic M16s, would they have the right to keep and bear those arms in the collective? If the Federal government prosecuted those citizens for violating the National Firearms Act of 1934, would those citizens have standing to sue the Federal Government? Would they prevail under your hypothetical Second Amendment?
Well, they certainly could be prosecuted. How successful the defense will be (or the success of a lawsuit to strike the 1934 act as unconsitutional) would probably turn on whether or not Montanta's state militia (consisting of all its citizens armed with fully automatic M16s, no less) could reasonably be viewed as "well-regulated". My inclination is that what you describe is NOT a well-regulated militia, but if you want to add facts to make it so, then obviously, my answer would change.
Actually, the style "United Kingdom of Great Britain" was used in the 1707 Act of Union, so I'm not at all sure that Prof. Volokh's original usage was incorrect.
I was frankly surprised that anyone seriously argued that "free state" in the 2nd Amendment was anything but a generic reference, regardless of whether you see "well-regulated militia" as a substantive restriction of the right to keep and bear arms.
Again... the 2d Amendment is only about Federal action. States can do what they please* (subject to their respective Constitutions). The 2d has not been incorporated. Just a refresher. I also think the 'free state' quote EV found was interesting (in a historical find sort of way) but ultimately beside the point.... interpretation of the 2d will always hinge on the meaning of 'militia'. I personally believe that the view articulated by Prof. Akhil Amar to be the most persuasive (militias as local, collective, town-centric organizations that slowly faded away, with an individual 2d right being considered in context of freed slaves during reconstruction), but that will be a minority view on this board.
* Your mileage may vary if you're in the 5th Circuit.
But we don't have to guess with the Second Amendment what it was trying to protect. It specifically TELLS us what is trying to be protected. And it wasn't trying to protect any individual right from the government.
It says the right is necessary for "the security of a free State". Not YOU, Not ME -- but the state. It's clear that the beneficiary of this protected right is the state's security from outside encroachment (which might include the federal government), rather than protection of YOUR right.
Therefore, your right (as an individual) to bear arms is necessarily bundled with the states' "right" (for lack of a better word) to be secure. And if the state foregoes a well-regulated militia (because, say, it chooses to place its security in the hands of a federal standing army), or deems to have a limited militia (say, the state national guard) -- well, then your right to bear arms is contingently limited.
I think it HAS to be state-directed. First of all, as I mentioned about, the raisin d'etre of the Second is for the security of the state. Secondly, the Second envisions a well-regulated militia. Regulation is the province of a governing body, i.e., a state.
But the folly here is assuming that you have a protectible individual right in the first place. And the collective rights argument says that you don't. You don't have the right to bear arms for your personal self-defense, but you DO have the right to bear arms as part of a well-regulated militia designed to protect the security of the state.
It seems like this could also be a good policy solution: the federal government gets out of the business of regulating guns, but allows the states to set their own rules. Montana allows you to own a M16, Massachusetts limits your paintball guns.
You'd be right if you were not so wrong. Contemporaneously with the ratification of the 2nd amendment Congress defined "the militia" as individuals capable of acting in the common defense. Thus it is abundently clear, as the DC Circuit pointed out, that because militia means individuals, whether or not they are well regulated, then "the peoples right to keep and bear arms" is not in tension with the first clause.
Congress and States knew then, and should know now, that you can't "well regulate" a militia until there is a militia, and there can't be a militia unless the people have ready access to arms. When the government controls access to all the weapons then there is no milita to "well regulate".
The arguement that the 2nd amendment doesn't apply to state or local jurisdictions doesn't really hold water either. Notice the first amendment only constrains Congress, as in "Congress shall make no law". The 2nd amendment has no such limiting language, so via the supremity clause was the law of the land from the moment it was ratified. The 1st amendment needed the 14th to be applicable to the states, the 2nd always was.
Allow me to offer some plain meaning versions of the Second Amendment that WOULD support the collective right model:
A well regulated militia being necessary to the security of a free state, the right of the states to keep and arm militias shall not be infringed.
The right of the states to keep and arm militias shall not be infringed
The right of a well regulated militia to keep and bear arms shall not be infringed
The right of the people in a well regulated militia to keep and bear arms shall not be infringed
So long as a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed
The Second Amendment is none of the above. The Second Amendment says that the right of the people to keep and bear arms shall not be infringed because a well regulated militia is necessary to the security of a free state. The right is being protected, not the militia (which is and always was under government control anyway).
The collective rights argument is a way to rip out a part of the Bill of Rights that some people don't like.
Except that it isn't.
My mechanical clock has a regulator - no state involved. The process of adjusting a multiple barrel weapon so that all barrels point to the same point of aim is called "regulation".
"Well-regulated" means "functioning properly".
The state is free to provide training, but that's as relevant to the 2nd as public education is to the 1st - it isn't a means by which the right can be doled out.
If I recall correctly, a couple of decades ago William F. Buckley wrote a column in which he set forth this argument. Then he examined the question of how the Second Amendment migh have been written more clearly to establish the "individual right" interpretation. His solution?
"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, and we really mean it."
If this logic applied, it seems that every clause in the BoR would have applied to the states from the beginning except the First Amendment. That strikes me as implausible, to say nothing of contrary to Barron v. Baltimore.
The same could be done on the opposite side. For example:
"The right of individuals to keep and bear arms shall not be infringed."
Alternative wording doesn't help much because any clause could be worded in such a way as to make a particular controversy moot. The folks in 1791 could have said almost anything; we're stuck with interpreting what they did say.
There were courts that took this view, such as the Georgia Supreme Court in Nunn v. State (Ga. 1846), but I think that was just judicial activism at work. There is an argument that the First Amendment was careful to use the word "Congress" because it left open the door for the judicial branch to continue enforcing common law rules about libel, slander, obscenity, and treasonous speech, and for the states to continue their practice establishing a state religion--and Massachusetts (one of the state establishment of religion states) didn't ratify the First Amendment until 1941. But I'm not sure that I completely believe that distinction.
But that's why you have to read the text to figure out what the Constitution means, rather than rely on the courts to interperet it. The Constitution generally makes sense, the courts are likely to say any silly thing and expect you to take their word for it.
i quote WA state.
Article I section 24
"The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. "
The clear language in the WA constitution has always been backed up by a clear commitment by the WA State Supreme court to enforce it. The second clause about not having a right to "employ an armed body of men", has not been as rigorously enforced.
Note that each substitution is appropriate, in context, in meaning and purpose.
Though Virginia extended from the Atlantic to the Mississippi in the 1700s; the settled portion was modern Virginia. In the east were English, CoE (‘the establishment’) owned enormous, slave-dependent plantations; in the west Scots-Irish and German dissenters on subsistence farms. At slavery’s height, even big western Virginia farms rarely had more slaves than family on them.
Winchester was the farthest west ‘establishment’ outpost; its militia was actively patrolling for and repelling Indian forays. Mary Ingles kidnapping in 1755 —2 years prior to Eugene’s cite— was just one of many Indian forays that kept the frontier in flux until long past Independence.
Slave revolts may have been a concern in eastern, 'establishment' areas; in the west the concern was defense of the frontier.
This approach makes sense to me. It seems to met that there is sound policy favoring a presumption that the First Congress used the same words in consistent ways and gave them a consistent meaning. The evidence brought here, such as that signers of a 1757 petition (when the Americas were colonies and the idea of calling them "states" hadn't been finalized) gave the word "state" a different meaning just doesn't seem particularly compelling.
If we abandoned the consistent-meaning approach to the meaning of "state", then of course the Court would also be free to abandon a consistent approach to the meaning of the term "the people". I see no reason for advocates of a strong 2nd Amendment to be in the business of providing ammunition for the idea that in the 2nd Amendment, Congress gave words a totally different meaning from the meaning it gave the same words elsewhere in the Bill of Rights.
A lone citizen is a member of "the people" and has a right to assemble and peacably petition the government of the United States. However, the holding of United States v. Umberto-Urquidez suggests that a lone non-resident alien is not a member of "the people", and doesn't have such a right. After all, it isn't "their" government.
I always see some outside the White House or Capitol anytime I pass by, so they seem to be doing alright (unless -- I guess -- you count several unaffiliated lone protesters as a group)