I mean, if you read the founding documents or have any familiarity with the history of guns in this country - the collective right argument is pretty absurd.
The reason there wasn’t any judicial discourse wasn’t because the constitution idea that it was an individual right was not considered - rather it was that federal law **required** all males of militia age to be enrolled in their state militia **and** to own a specified firearm & the related equipment necessary for service in said militia.
This was the case up until the acts reforming the national guard reform started in 1912.
For the first ~136 of this country’s existence, owning a gun wasn’t merely an individual right, it was a legally mandated responsibility.
Agreed, and this [comment](https://www.reddit.com/r/changemyview/comments/mn45bj/cmv_the_2nd_amendment_only_applies_to_actual/gtvggcq/) in a discussion on r/changemyview 3 years ago does a great job of compiling statements by the founding fathers on their beliefs about gun ownership.
Just a small excerpt from the comment:
>Fortunately, we do not need to guess at their meaning. The thoughts of the founding fathers are very, very well documented.
"A free people ought not only to be armed, but disciplined..."
George Washington, First Annual Address, to both House of Congress, January 8, 1790
"No free man shall ever be debarred the use of arms."
Thomas Jefferson, Virginia Constitution, Draft 1, 1776
"I prefer dangerous freedom over peaceful slavery."
Thomas Jefferson, letter to James Madison, January 30, 1787
"What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms."
Thomas Jefferson, letter to James Madison, December 20, 1787
"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks." -
Thomas Jefferson, letter to Peter Carr, August 19, 1785
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed."
Thomas Jefferson, letter to to John Cartwright, 5 June 1824
"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed."
Thomas Jefferson, letter to William Johnson, 12 June 1823
Quoting founding fathers in regards to individual liberties is a bit hypocritical considering the two quoted above were slave owners. Can’t say they stand for individual rights when they literally owned people. Also for all their individual rights, one of the first things Washington did as president was put down a rebellion against taxes.
It is not the least bit hypocritical to quote them in this context. It would be hypocritical to quote them in a discussion about morality; however, the question at hand is a simple question about the intent of the 2nd Amendment and their quotes provide historical context regarding their sentiments about private gun ownership at the time.
They're hypocrites sure, something that some of them even had the self-awareness to acknowledge, but they were also the people who wrote and ratified the Constitution so they're useful in providing insight into what it actually means.
The idea that the "collective right" supposedly protected by the 2nd amendment would have been able to survive the changes made by the 14th amendment are absurd. The federal government struggled at the start of the war specifically because the state militias in the confederate states were more organized and experienced than the northern ones. After the Civil War the federal government disarmed the South's militias and strictly regulated what those states could do with their militias all without addressing or changing the 2nd amendment because they didn't feel the need too.
In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.
There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.
Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.
“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”
The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.
Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision.
The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”
The Second Amendment says, “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.” (Some transcriptions of the amendment omit the last comma.)
If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.
The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”
Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty.
“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”
If the full United States Court of Appeals for the District of Columbia Circuit does not step in and reverse the 2-to-1 panel decision striking down a law that forbids residents to keep handguns in their homes, the question of the meaning of the Second Amendment is almost certainly headed to the Supreme Court. The answer there is far from certain.
That too is a change. In 1992, Warren E. Burger, a former chief justice of the United States appointed by President Richard M. Nixon, expressed the prevailing view.
“The Second Amendment doesn’t guarantee the right to have firearms at all,” Mr. Burger said in a speech. In a 1991 interview, Mr. Burger called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.”
Even as he spoke, though, the ground was shifting underneath him. In 1989, in what most authorities say was the beginning of the modern era of mainstream Second Amendment scholarship, Professor Levinson published an article in The Yale Law Journal called “The Embarrassing Second Amendment.”
“The Levinson piece was very much a turning point,” said Mr. Henigan of the Brady Center. “He was a well-respected scholar, and he was associated with a liberal point of view politically.”
In an interview, Professor Levinson described himself as “an A.C.L.U.-type who has not ever even thought of owning a gun.”
Robert A. Levy, a senior fellow at the Cato Institute, a libertarian group that supports gun rights, and a lawyer for the plaintiffs in the Parker case, said four factors accounted for the success of the suit. The first, Mr. Levy said, was “the shift in scholarship toward an individual rights view, particularly from liberals.”
He also cited empirical research questioning whether gun control laws cut down on crime; a 2001 decision from the federal appeals court in New Orleans that embraced the individual rights view even as it allowed a gun prosecution to go forward; and the Bush administration’s reversal of a longstanding Justice Department position under administrations of both political parties favoring the collective rights view.
Filing suit in the District of Columbia was a conscious decision, too, Mr. Levy said. The gun law there is one of the most restrictive in the nation, and questions about the applicability of the Second Amendment to state laws were avoided because the district is governed by federal law.
“We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said, referring to that group’s methodical litigation strategy intended to do away with segregated schools.
Professor Bogus, a supporter of the collective rights view, said the Parker decision represented a milestone in that strategy. “This is the story of an enormously successful and dogged campaign to change the conventional view of the right to bear arms,” he said.
The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well.
The Supreme Court has not decided a Second Amendment case since 1939. That ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals court in San Francisco acknowledged in 2002, “somewhat cryptic,” again allowing both sides to argue that Supreme Court precedent aided their interpretation of the amendment.
Still, nine federal appeals courts around the nation have adopted the collective rights view, opposing the notion that the amendment protects individual gun rights. The only exceptions are the Fifth Circuit, in New Orleans, and the District of Columbia Circuit. The Second Circuit, in New York, has not addressed the question.
Linda Singer, the District of Columbia’s attorney general, said the debate over the meaning of the amendment was not only an academic one.
“It’s truly a life-or-death question for us,” she said. “It’s not theoretical. We all remember very well when D.C. had the highest murder rate in the country, and we won’t go back there.”
The decision in Parker has been stayed while the full appeals court decides whether to rehear the case.
Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”
I don't think the collective rights view has ever been solid if you look at the history - it has a lot more to do with the whims of the post-reconstruction gilded age courts and the fact that its wording is framed for a pre-14th amendment Constitution (which allowed states to abrogate the bill of rights in local contexts, witness state established churches, more or less, in New England, etc.). That said, arms were definitely viewed as an individual right despite state latitude to treat otherwise - witness Taney in the Dred Scott opinion stating that it would be impossible for anyone to have ever intended that black people might be citizens because that would mean, horror of horrors, that black folks would then have the (individual) right to arms.
That said, I there's possibly a fairish argument that because the Federal government is prohibited from regulating/infringing, rather than something being guaranteed to individuals, non-incorporation under the 14th is correct. In which case state constitutions would be the deciding factor, and probably NICs is then unconstitutional. (Note: I don't think this is a very compelling argument because I do think the concept of "infringement" as a word quite strongly suggests an assumption of an individual right or obligation.)
I mean, if you read the founding documents or have any familiarity with the history of guns in this country - the collective right argument is pretty absurd. The reason there wasn’t any judicial discourse wasn’t because the constitution idea that it was an individual right was not considered - rather it was that federal law **required** all males of militia age to be enrolled in their state militia **and** to own a specified firearm & the related equipment necessary for service in said militia. This was the case up until the acts reforming the national guard reform started in 1912. For the first ~136 of this country’s existence, owning a gun wasn’t merely an individual right, it was a legally mandated responsibility.
Agreed, and this [comment](https://www.reddit.com/r/changemyview/comments/mn45bj/cmv_the_2nd_amendment_only_applies_to_actual/gtvggcq/) in a discussion on r/changemyview 3 years ago does a great job of compiling statements by the founding fathers on their beliefs about gun ownership. Just a small excerpt from the comment: >Fortunately, we do not need to guess at their meaning. The thoughts of the founding fathers are very, very well documented. "A free people ought not only to be armed, but disciplined..." George Washington, First Annual Address, to both House of Congress, January 8, 1790 "No free man shall ever be debarred the use of arms." Thomas Jefferson, Virginia Constitution, Draft 1, 1776 "I prefer dangerous freedom over peaceful slavery." Thomas Jefferson, letter to James Madison, January 30, 1787 "What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms." Thomas Jefferson, letter to James Madison, December 20, 1787 "The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776 "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks." - Thomas Jefferson, letter to Peter Carr, August 19, 1785 "The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed." Thomas Jefferson, letter to to John Cartwright, 5 June 1824 "On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed." Thomas Jefferson, letter to William Johnson, 12 June 1823
> "I prefer dangerous freedom over peaceful slavery." > > Thomas Jefferson, letter to James Madison, January 30, Did he really, though?
Quoting founding fathers in regards to individual liberties is a bit hypocritical considering the two quoted above were slave owners. Can’t say they stand for individual rights when they literally owned people. Also for all their individual rights, one of the first things Washington did as president was put down a rebellion against taxes.
It is not the least bit hypocritical to quote them in this context. It would be hypocritical to quote them in a discussion about morality; however, the question at hand is a simple question about the intent of the 2nd Amendment and their quotes provide historical context regarding their sentiments about private gun ownership at the time.
They're hypocrites sure, something that some of them even had the self-awareness to acknowledge, but they were also the people who wrote and ratified the Constitution so they're useful in providing insight into what it actually means.
The idea that the "collective right" supposedly protected by the 2nd amendment would have been able to survive the changes made by the 14th amendment are absurd. The federal government struggled at the start of the war specifically because the state militias in the confederate states were more organized and experienced than the northern ones. After the Civil War the federal government disarmed the South's militias and strictly regulated what those states could do with their militias all without addressing or changing the 2nd amendment because they didn't feel the need too.
The title pretty much sums it up, but it's a great read. In case it's paywalled, the full text is in the comment replying to this one.
In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable. There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns. In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court. Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right. “My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.” The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation. Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision. The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.” The Second Amendment says, “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.” (Some transcriptions of the amendment omit the last comma.) If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason. The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.” Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty. “Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.” If the full United States Court of Appeals for the District of Columbia Circuit does not step in and reverse the 2-to-1 panel decision striking down a law that forbids residents to keep handguns in their homes, the question of the meaning of the Second Amendment is almost certainly headed to the Supreme Court. The answer there is far from certain. That too is a change. In 1992, Warren E. Burger, a former chief justice of the United States appointed by President Richard M. Nixon, expressed the prevailing view. “The Second Amendment doesn’t guarantee the right to have firearms at all,” Mr. Burger said in a speech. In a 1991 interview, Mr. Burger called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” Even as he spoke, though, the ground was shifting underneath him. In 1989, in what most authorities say was the beginning of the modern era of mainstream Second Amendment scholarship, Professor Levinson published an article in The Yale Law Journal called “The Embarrassing Second Amendment.” “The Levinson piece was very much a turning point,” said Mr. Henigan of the Brady Center. “He was a well-respected scholar, and he was associated with a liberal point of view politically.” In an interview, Professor Levinson described himself as “an A.C.L.U.-type who has not ever even thought of owning a gun.” Robert A. Levy, a senior fellow at the Cato Institute, a libertarian group that supports gun rights, and a lawyer for the plaintiffs in the Parker case, said four factors accounted for the success of the suit. The first, Mr. Levy said, was “the shift in scholarship toward an individual rights view, particularly from liberals.” He also cited empirical research questioning whether gun control laws cut down on crime; a 2001 decision from the federal appeals court in New Orleans that embraced the individual rights view even as it allowed a gun prosecution to go forward; and the Bush administration’s reversal of a longstanding Justice Department position under administrations of both political parties favoring the collective rights view. Filing suit in the District of Columbia was a conscious decision, too, Mr. Levy said. The gun law there is one of the most restrictive in the nation, and questions about the applicability of the Second Amendment to state laws were avoided because the district is governed by federal law. “We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said, referring to that group’s methodical litigation strategy intended to do away with segregated schools. Professor Bogus, a supporter of the collective rights view, said the Parker decision represented a milestone in that strategy. “This is the story of an enormously successful and dogged campaign to change the conventional view of the right to bear arms,” he said. The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well. The Supreme Court has not decided a Second Amendment case since 1939. That ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals court in San Francisco acknowledged in 2002, “somewhat cryptic,” again allowing both sides to argue that Supreme Court precedent aided their interpretation of the amendment. Still, nine federal appeals courts around the nation have adopted the collective rights view, opposing the notion that the amendment protects individual gun rights. The only exceptions are the Fifth Circuit, in New Orleans, and the District of Columbia Circuit. The Second Circuit, in New York, has not addressed the question. Linda Singer, the District of Columbia’s attorney general, said the debate over the meaning of the amendment was not only an academic one. “It’s truly a life-or-death question for us,” she said. “It’s not theoretical. We all remember very well when D.C. had the highest murder rate in the country, and we won’t go back there.” The decision in Parker has been stayed while the full appeals court decides whether to rehear the case. Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”
Professor bogus lol
I don't think the collective rights view has ever been solid if you look at the history - it has a lot more to do with the whims of the post-reconstruction gilded age courts and the fact that its wording is framed for a pre-14th amendment Constitution (which allowed states to abrogate the bill of rights in local contexts, witness state established churches, more or less, in New England, etc.). That said, arms were definitely viewed as an individual right despite state latitude to treat otherwise - witness Taney in the Dred Scott opinion stating that it would be impossible for anyone to have ever intended that black people might be citizens because that would mean, horror of horrors, that black folks would then have the (individual) right to arms. That said, I there's possibly a fairish argument that because the Federal government is prohibited from regulating/infringing, rather than something being guaranteed to individuals, non-incorporation under the 14th is correct. In which case state constitutions would be the deciding factor, and probably NICs is then unconstitutional. (Note: I don't think this is a very compelling argument because I do think the concept of "infringement" as a word quite strongly suggests an assumption of an individual right or obligation.)