I'll grant you that the ninth circuit held that the right to keep and bear arms was "collective", and that the fourth and sixth circuit courts of appeal have given opinions consistent with the collective right model(though the sixth circuit's Warin decision was self-contradictory, indicating that only individuals' possession of certain firearms was unprotected from federal legislation by the second amendment and relying on the first circuit's Cases decision that described the right as belonging to individuals), but can you provide citations to back up your statement that "every single federal court except the 5th Circuit" follows the Soviet-style collective right model.
Here are SCOTUS cases that refer to the right to keep and bear arms in terms consistent with an individual (not collective, right:
# Dred Scott v. Sandford (1857) [6] - The court ruled Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection:
"It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... 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."
United States v. Cruikshank
U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations. The high court said:
“ The right [claimed in this case] is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. ”
The court made similar findings with respect to the first amendment, though since that time the Supreme Court has said that the 14th Amendment applies the bill of rights to the states.
This high court statement is the first of two cases (the other being Presser) in which the Supreme Court ruled that because "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...", the states and municipalities may regulate arms. This is because courts didn't recognise the doctrine of incorporation at this point in the nineteenth century.
# Duncan v. Louisiana (1968) [9] - A Supreme Court case which incorporated the Sixth Amendment right to a jury trial at the state level as required by the Fourteenth Amendment. In the court's written opinion, the court used a statement by Senator Howard, who introduced the Fourteenth Amendment, to help validate their ruling that the Bill of Rights as a result of the Fourteenth Amendment forces states, and not just the federal government, to protect the same individual rights enumerated in the Bill of Rights:
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution ...the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining [391 U.S. 145, 167] to each and all the people; the right to keep and to bear arms..."
U.S. v. Verdugo-Urquidez (1990) In discussing the meaning of "the people" in the Fourth Amendment, the Supreme Court commented: " '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "
Unless you contend that other rights protected by the bill of rights are also collective rather than individual, this passage can only be read as referring to an individual right to keep and bear arms.
Yes, I've read Silveira. That's why I'll give you the 9th circuit in the "collective" column. I've also read Kozinski's brilliant dissent that destroyed the majority opinion in detail. This dissent also gave us the funniest judicial metaphor of all time- the majority's attempt to smother the second amendment by sheer weight had the grace of the sumo wrestler trying to kill a rattlesnake by sitting on it. Kozinski's understanding what our revolutionary founding fathers meant when they penned the second amendment is perhaps so clear because of the perspective he has having lived under an authoritarian regime that he has seen toppled.
Ask and ye shall receive.
A couple of points. First, let's be adults here and discuss (if you wish) the cases themselves. If you wish to criticize the source, you'll do so in a vacuum because I'm done -- it's the result of a Google search.
Second, I disagree with the U.S. Supreme Court cases cited. The court in US v Miller made many references to a militia and implied that the weapon was protected if it was suitable for a militia. But they never did rule that the second amendment protected a collective right. Or an individual right, for that matter.
The court in Lewis v US makes some passing reference to the second amendment in a footnote, hardly a ringing endorsement of a collective right.
"The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia'."
There may even be some other lower federal court decisions that are questionable, but the list was provided per your request. If you wish to challenge it, be my guest. I'm more than happy to discuss the cases.
In Dred Scott v. Sandford (1857), Justice Taney outlined the consequences of a person of the negro race being declared a "Citizen of a state" -- that they would receive the same protection of rights that every other citizen of that state received, including the right "to keep and carry arms wherever they went".
Yes, an individual right, but a right protected by the state, not the second amendment.
I'm surprised you brought up United States v. Cruikshank to support your individual rights contention. In it, the court said NOT to look to the second amendment for protection against a state law. That people should look for their "protection against any violation by their fellow-citizens of the rights it recognizes" at the state level. An individual RKBA is protected by the state.
In Duncan v. Louisiana (1968), the court may indeed have "incorporated" the sixth amendment. But what that has to do with the individual rights model of the second amendment is beyond me.
First of all, as of this date, the second amendment is not "incorporated. Second, even if it WAS incorporated I don't know what that would mean, even if incorporation was possible.
If, as a number of courts have said, the second amendment protects a state militia from federal infringement (a collective right), then how do you incorporate that -- a state may not infringe on a state militia? See what I mean?
Now, certainly, if the second amendment protected an individual right, then incorporating it would mean that the state must protect an individual right also. But only the 5th Circuit in Emerson has said that the second amendment protects an individual right. You think the U.S. Supreme Court will agree with them and ignore all the other cases I cited?
I'm not willing, at this time, to take that "all or nothing" chance, thank you.
"U.S. v. Verdugo-Urquidez (1990) was not an RKBA case. That was a "citizens" vs "the people" language argument concerning the fourth amendment. You can't apply the definition of the term "the people" in that case to the second amendment.
Well, you could if the second amendment said, "The right of the people to keep and bear arms shall not be infringed". Then I would wholeheartedly agree with you that it protects an individual right. No question. Game over.
Of course, that's not what the second amendment says, is it?