Dean Weingarten in front of Supreme CourtPosted on 02/23/2023 2:36:25 PM PST by marktwain
Dean Weingarten in front of Supreme Court
The myth of the Second Amendment as a "collective right" and not an individual right, was born in an obscure Kansas Supreme Court case. It was in 1905, as progressive ideology was becoming ascendant in the United States.
Dave Hardy notes, the myth of the Second Amendment as a "collective right" was born with the case of City of Salina v. Blaksley, on November 11, 1905.
What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of "collective rights" theory.
The "collective rights" theory did not gain traction for decades. In 1931, the Michigan Supreme Court rejected it in People v Brown:
When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens...is practically extinct and has been superseded by the National Guard and reserve organizations... The historical test would render the constitutional provision lifeless.
The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the state.
Then in 1939 the Miller case was set up by Heartsill Ragon. Ragon was a an anti-Second Amendment ideologue and a President Franklin Delano Roosevelt (FDR) ally, appointed from Congress to the federal judgeship. The case went to the Supreme Court without opposing counsel or briefs. The Supreme Court refused to rule on whether a sawed off shotgun (having not been presented with any evidence to the contrary) was an arm protected by the Second Amendment. The Supreme Court decision stated all men capable of carrying arms were protected by the Second Amendment. No opposing views were presented to the court. From Miller:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.
The Miller decision was muddy, but the context was clear. Individuals were protected by the Second Amendment. Progressive judges started to ignore and misrepresent the Miller decision as showing the Second Amendment only applied to state militias. In 1942, during the height of World War II, two circuit court decisions added to the flimsy foundation of the "collective right" myth.
In United States v Tot, the Third Circuit held the Second Amendment did not apply to criminals, a finding which can be consistent with an individual rights interpretation. The judge, in a one paragraph dicta, pushed the myth the Second Amendment was a "collective right", incorrectly citing Miller, and a short historical discussion of the English revolution from 1688-1689, found in Aymette (an anomalous Tennessee case from 1840), and a collection of modern writers. The historical analysis was very weak.
In the First Circuit, in Cases v United States, the three progressive judges went so far as to claim Miller did not apply to military weapons, because it was what they wanted to find. From Cases:
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
In 1965, Progressive AG, Nicholas Katzenbach, in the Progressive Johnson administration, claimed the "collective right" myth was correct, without evidence. In 1968, President Johnson pushed through the infamous Gun Control Act of the same year. After 1968, a flurry of circuit court decisions adopted the "collective right" myth, citing Tot, or Cases, or a cursory reference to Miller. The "collective right" myth was now fully formed.
The full fledged "collective right" myth was fully formed in the courts after 1968.
It was not adopted at the Supreme Court, but was pushed hard in the Media.
In the 1970's the "collective right" myth started being exposed by academics. The myth was so thoroughly debunked in the literature, the fact the Second Amendment protected individual rights was referred to as the Standard Model.
In 2004, the Department of justice rejected the "collective rights" myth and confirmed the Second Amendment protected individuals rights.
In the Heller decision published on June 26, 2008, the Supreme Court clearly and precisely points out the "collective rights" myth is false, and shows the reality. The Progressive judges on the Supreme Court generally admitted the rights protected were individual rights, but argued they should be limited by the prefactory clause. From billofrights.com:
Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” (in-born) right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
Four of the nine Supreme Court Justices dissented. (They disagreed with the Court’s ruling.) Some of the dissenters agreed that the Second Amendment protected an individual right. However, they argued that the scope of that individual right was limited by the amendment’s prefatory clause. One dissenter agreed that the Second Amendment protected an individual right, but argued that the District law was a reasonable restriction.
This was the death of the myth of the "collective right". It never was reasonable to believe a pre-existing "right of the people" would refer only to a right of the states to form militias.
The Heller decision killed any logical claim about the "collective rights" myth. It had been created out of very thin, stone soup.
But liberal fascists, also known as Progressives, have always hated limitations on government power, especially the Second Amendment. They have always depended on lies and their ability to control information flow. They continue to promote two false myths about the Second Amendment. The leftist myths are illustrated by this article in the Huffington Post, in 2013. Here is the first:
Following the Sandy Hook massacre, gun rights, gun laws and the Second Amendment have been the subject of a national dialogue. Any discussion of these topics is severely tainted by calculated messaging by the NRA to deceive and mislead our citizens to believe that the Second Amendment grants far reaching gun rights which have not and do not exist.
Note the false assumption in the above paragraph. The Second Amendment does not grant any rights. It protects existing rights to keep and bear arms. The text of the Second Amendment verifies that fact. The false assumption is repeated in the next paragraph, now compounded by the myth that the Second Amendment does not protect individuals rights.
The Second Amendment became part of our constitution in 1791. For well over two centuries the Supreme Court never decided that the Amendment granted a constitutional right to individuals to bear arms. The widely held notion that such a right existed was a myth fabricated by the NRA for its own self interest and for the corporate profits of gun manufacturers.
The author goes on to cite a number of prominent progressive judges and lawyers who all spout the "collective right" mythology. All cite the same talking points, based on the same false narratives.
The myth the Second Amendment does not protect individual rights, only "collective rights", was first created in Kansas in a muddy decision in 1905. It was built on by dubious wording in a couple of circuit court cases, then elevated to legendary status by the courts after 1968, by judges using Progressive ideology.
Opinion:
The "collective right" myth was killed in 2008. It was never really alive. Like a zombie in the movies, it keeps rearing its ugly head in ill-informed arguments about the Second Amendment.
Interesting that the left fought for 60 years before this novel theory of theirs got traction in the courts. Remember that any time some leftie complains “Roe v. Wade was settled law!”
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I can, almost, if I squint, see a collective right IF it means every male has to own an AR and drill for 3 hours a month for civil defense purposes and is required to be available in an emergency.
But that is not what th gun confiscation groups want.
Bkmk
Interesting that in the 1800s it was considered an Individual right.
You really need to read the highly suppressed and out of print 1982 Senate report on the RKBA. I have a paper copy.
Here is an on line version.
https://guncite.com/journals/senrpt/senrpt.html
“The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”
19th century cases
16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878).
“If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the (p.17)penitentiary and gallows, and not by a general deprivation of constitutional privilege.”
17. * Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
“We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. * * * One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation.”
18. * Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
“The passage from Story (Joseph Story: Comments on the Constitution) shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.”
19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
“’The right of the people to bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”
And the SCOTUS case that led to the Civil War..
What the SCOTUS thought about gun control in the pre Civil War era.
“It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished;
and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs,
and to KEEP AND CARRY ARMS wherever they went.”
Paragraph 77 in the link below. Then over 300 paragraphs to try and prove blacks were NOT citizens and had no rights.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0060_0393_ZO.html
That remained the official position of the ACLU until well after Heller. As of that decision they began an “internal discussion” over their position that is yet to be officially resolved.
It was clear from the start that gun ownership is an individual right, not a collective right, courts just ignored this, until 2008.
If liberal aquaintances want to argue about collective rights, just point out that the Bill Of Rights deals only with individual rights, period.
Giving credit where due, John Roberts was the swing vote in the 5-4 Heller decision that changed the course of gun ownership in America.
The early colonists were required to take their firearms to Church on Sunday and drill after services.
As you noted, no one was present to argue for Miller in the Miller case. But any honest reading of the decision concludes that had it been demonstrated before the Court that a sawed off shotgun was indeed a regular military weapon that it would be protected under 2A.
Extrapolating from that so would automatic weapons, and even bazookas.
Thanks for posting this. I want to get it printed. How many pages does it run?
It is time for the congress to issue a law removing short barreled rifles and sound suppressors from the firearms act.
Just repeal the act. It’s not constitutional.
My copy runs 175 pages. If you look you can find reprints for sale.
https://books.google.com/books/about/The_Right_to_Keep_and_Bear_Arms.html?id=zsS7AAAAIAAJ
https://www.amazon.com/right-keep-bear-arms-Ninety-seventh/dp/B003U4W2GS
I like to have that book in my hot little hands!
Thank you!
Exactly. That is a well regulated militia. Such an organization would.be useful in many cases today.
***no one was present to argue for Miller in the Miller case.***
From what I have read, the plaintiff had crossed the Arkansas line from Oklahoma to rob a bank in Siloam Springs AR when he was caught. Some say he was dead when this went to the SCOTUS.
https://encyclopediaofarkansas.net/entries/united-states-v-miller-et-al-4742/
hhttp://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf
Yes Miller had died before the case reached SCOTUS and his attorney didn’t bother to travel to DC. The governments case was left unchallenged.
In the early 1900s, Teddy stole our land and created the 16th Amendment under the banner of progressivism and Franklin (who, later, the Vikings might have nicknamed "Ivar The Boneless") managed to get a fellow traveler into the federal judgeship who committed an abortion on the 2nd Amendment...
I'll meet your Roberts comment, and raise you - a big THANK YOU TO TED KENNEDY for possibly preventing a 4-5 loss in Heller, the ascent of the Collective Model, and the eviscerstion of the 2nd Amendment.
Oh, and possibly Dobbs/Roe's repeal, too.
Stick with me.
The Lifeguard of Chappaquiddick is largely responsible for the destruction of Robert Bork's SCOTUS candidacy. That slot was occupied by Justice Anthony Kennedy ultimately.
Justice Kennedy was a squish. But he DID side with the majority in Heller. That's big.
Ah, but what if Bork hadn't been Borked. Well...the truth is... Bork MAY have voted against Heller.
In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.”[4] While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right. In fact, Bork’s skepticism regarding the gun lobby’s advocacy of individual rights under the Second Amendment (shared by former Chief Justice Warren Burger) may have been the reason the National Rifle Association chose to remain neutral during Bork’s 1987 confirmation hearings. Moreover, Bork might have been reluctant to overrule (or distinguish into irrelevance) the arguably contrary precedent in United States v. Miller[5], which is what the majority in Heller did. It appears that Bork construed Miller the same way Justice Stevens’ dissent in Heller did: as ruling that the Second Amendment confers a collective, not an individual, right. The way he put it in Slouching Towards Gomorrah (12 years before Heller) was: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”
By blocking Bork and paving the way for Kennedy, Uncle Ted very possibly helped save the legality of the Individual Model.
It gets better.
Bork died in 2012 during Obama, thus guaranteeing a leftist nutjob tipping the scales to a 5-4 liberal SCOTUS until Ruth Buzzy Ginsberg died. That is a LOT of bad rulings.
It also means no Kavanaugh, and no 6-3 margin for Dobbs, Bruen, or EPA.
So Ted, you magnificent bastard, wherever you are, thank you for being a friend of the NRA.
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