An 1830 Source Casually Assuming the Individual Rights View of the Second Amendment:

For an analysis similar to what I quoted below -- down to the analogy between the limits on the right to bear arms and the limits on the freedom of the press, see the argument of Ichabod Bartlett (a leading New Hampshire lawyer, Congressman, and speaker of the New Hampshire House of Representative) in Upham v. Hill (1830):

What is liberty of person? — liberty of speech? Are we not free? But have we a right to knock down and trample upon all whom we may dislike? ... We have too the right of bearing arms. And if we are not permitted to throw a brand into our neighbor's dwelling — or discharge our rifle upon the passers by in the street — we could as well complain of being enslaved — as to say the press is shackled, because it may not, by falsehood, assault the character of any and every citizen, when and where its conductors may choose.

This clearly assumes the right to bear arms as an individual right to possess or carry a gun (it's not clear which). This is weaker evidence than the views of Judge Martin, because it's only a lawyer's argument to a jury. But a skilled lawyer such as Bartlett would make such an argument (especially given the easy availability of other analogies) only if he thought the right to bear arms would be uncontroversially seen as an individual right by the jurors.

Note also that this had to be a reference to the Second Amendment or to some national consensus about the right to bear arms, and not to a state constitutional provision: New Hampshire had no right to bear arms provision in its state constitution until 1982.

I'm showing my age, but I grew up watching Westerns -- and in those films nearly everyone, male anyway, was packing. I don't think it's insignificant that hundreds of these films were made, and nobody to my knowledge ever thought that folks going around armed was not something like the "natural order" for those times.
7.8.2008 5:22pm

But a skilled lawyer such as Bartlett would make such an argument (especially given the easy availability of other analogies) only if he thought the right to bear arms would be uncontroversially seen as an individual right by the jurors.

Based on my recollection of being an appellate clerk, "skilled" lawyers are capable of saying all sorts of crazy things to panels of judges, and it would be really strange if, 180 years from now, academics tried to discern the state of the law based on what one of these people thought would fly with a particular panel of judges.

Also, is that from the brief or is it a quote from oral argument?

This is a data point of some use, but not much, in my view.
7.8.2008 5:34pm
Eugene Volokh (www):
Krs: It's a quote from oral argument to a jury. And I agree that the data point is not very valuable; I just saw it and thought I'd pass it along for what it's worth.
7.8.2008 5:50pm
Tucker (mail):
Professor Volokh, this may be obvious, but have you looked at the language of the Militia Act of 1792?

The language of that act clearly presupposes that the duty is an individual one to procure and maintain the arms required to participate in the militia. This is in contrast to the Swiss militia of today, where the arms are provided by the state to the militia member.

I've always considered the language of this act to be the most simple refutation of the collective right argument, for if this act legislates that individuals must procure and maintain their own arms, clearly they must have had the right to do so...

"every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
7.8.2008 5:58pm
alkali (mail):
It's not completely clear to me -- at least from what's quoted here -- that he's referring to an individual right as opposed to a collective right to maintain a militia of which he anticipated the jurors would be members maintaining arms in their households in that capacity. (A Google search, which is as good as actually determining the facts, indicates that Bartlett himself was a member of the state militia.)
7.8.2008 6:05pm
Clayton E. Cramer (mail) (www):
"The language of that act clearly presupposes that the duty is an individual one to procure and maintain the arms required to participate in the militia."

It's a duty, not a right. There is a difference.

I do agree that the language of the Militia Act shows that the government wasn't scared witless of the general population being armed with military grade weapons (unlike today, in some states).
7.8.2008 6:47pm
EIDE_Interface (mail):
Why are we even debating this? Oh the Constitution is not a suicide pact. Thus let's scrap it now.
7.8.2008 6:51pm
Tucker (mail):
The Act presupposes an armed populace, with the right to keep &bear.

There's no language about training in the use of arms, or how to procure arms. That's left up to the individual. Obviously an infrastructure of armed individuals able to purchase arms existed, and was so unremarkable that no provision is made for it in the Act.

If the collective rights argument was correct, there would have to be language about providing the arms to the militia, but there is not.

Imagine if this was enacted in a country w/out an individual right to keep &bear. The militia would have to provide each militiaman with a rifle, since he would have no ability to provide it himself.

The right's not laid out here, but the act makes no sense without it.
7.8.2008 7:13pm
We need more lawyers and judges with names like "Ichabod". You can just tell that such people would have little time for current legalistic mumbo-jumbo.

"Ichabod Volokh, Chief Justice of the Supreme Court" has a ring to it.
7.8.2008 8:56pm
Frog Leg (mail):
It's a shame SCOTUS was not aware of this. After all, the opinions surely are not long enough.
7.8.2008 9:59pm
Melancton Smith:
I think the word 'right' has lost its context and meaning. Don't I have a right to swing my fist? If in exercising that right I strike someone I must suffer the consequences.

However, I do have an absolute right to swing my fist. Get it?

Rights are absolute else they are not rights. However, exercising a right does not render one immune to the consequences if doing so harms another.

Therefore, we punish those that libel, slander, cause a riot, etc. This is not a limit on our right to free speech. We don't (usually) gag people to prevent them libeling or slandering, etc.

Likewise, discharging a firearm can have consequences. Brandishing (and I mean in a threatening manner, not simply, as some sheep thing, wearing one in a holster) a firearm to threaten can have consequences. These are not limits on the right, but consequences of harming others while exercising the right.

Telling me I can't own a certain firearm or any firearm or carry such firearm on my person is akin to gagging me to prevent me from yelling 'FIRE' in a crowded theater.

Such infringements on the right presupposes the act of harming another. They are patently illegal.

There is actually a time when you can, and should, yell 'FIRE' in a crowded theater---when there actually is a fire. Likewise, one may brandish or discharge a firearm at another person when doing so is in self-defense or the defense of others or the common good (i.e. war, insurrection, etc).
7.9.2008 10:58am
Tucker: The right's not laid out here, but the act makes no sense without it.

I don't think that's necessarily true. Congress clearly had the authority to provide for arming the militia under Article I Section 8. The fact that they chose to rely on privately-provided arms rather than provide arms at federal expense doesn't say much either way about a collective versus individual view of the right to bear arms, except that (as Clayton pointed out) the feds obviously weren't concerned about the idea of the masses owning and possessing ordinary infantry weapons. I think the Second Amendment that we have clearly protects an individual right, but I think it's possible to imagine an identical Militia Act being passed in the absence of the Bill of rights.
7.9.2008 2:11pm
W/R/T the NH constitution, it is worth noting that the 1982 amendment to create article 2-A was a reaction to the national trend to render firearms possession illegal. Article 2 already stated that "enjoying and defending life and liberty" was a "natural, essential, and inherent" right of "[a]ll men."

The firearms part was seen as a necessary redundancy in light of political and legal developments.
7.9.2008 3:10pm
teqjack (mail):
In re Article 1, I found this a few days ago -

I am not a lawyer, but
if the Second Amendment was meant to provide for creating a state army/organized militia (the “collective rights” view,) wouldn’t that be at odds with U.S. Const. art. I, § 10, cl. 3 “No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace…?”

Probably addressed in one of the Heller briefs I wasn’t able to read, but this is what you get reading the Constitution at midnight.

7.9.2008 8:31pm
Presumably "keep troops" was taken to refer to standing army (full-time professional soldiers), so that prohibition would not apply to an organized militia, even though many Antifederalists argued that a "select militia" was just as dangerous as a standing army.
7.10.2008 10:29am
Alan K. Henderson (mail) (www):
One has to go through some serious grammatical gymnastics to establish that "the people" means one thing in the Second Amendment and something else entirely in all other instances where the phrase is used in the Constitution.

Is there any precedent that the Founders recognized and accepted the "collective rights" concept?
7.11.2008 12:29pm