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The History of the Collective Right

Dave Kopel has a recent article that talks about how the collective rights theory of the Second Amendment sprang into life and then was eventually abandoned. The short of it was that collective rights theory didn’t really exist until the 20th Century, being created by a 1905 Kansas Supreme Court case, Salina v. Blaksley. It made its way into the federal court system in 1935, by a judge who was later impeached and removed from office by Congress.

Yet the collective-right theory itself contained the seeds of its own destruction. Emboldened by the collective right’s negation of the Second Amendment, politicians and gun-ban lobbies intensified the pressure for draconian gun control, and so scholars began looking into the actual legal history of the Second Amendment. One such scholar was a University of Arizona Law School student named David Hardy. His 1974 article in the Chicago-Kent Law Review, “Of Arms and the Law,” marked the beginning of the historical rediscovery of the Second Amendment.

For a while, the legal academy tried to ignore the mounting historical evidence that the Second Amendment protects an individual right. But in 1989, left-leaning University of Texas professor Sanford Levinson penned “The Embarrassing Second Amendment” for the Yale Law Journal.

His article also speaks about the other side of the coin as well

While Verdugo-Urquidez was working its way through the appellate courts, Handgun Control Inc., (which later renamed itself the Brady Campaign) hired attorney Dennis Henigan. In a 1989 article for theUniversity of Dayton Law Review, he recast the (untenable) collective right cases as actually standing for a narrow individual right: “It may well be that the right to keep and bear arms is individual in the sense that it may be asserted by an individual. But it is a narrow right indeed, for it is violated only by laws that, by regulating the individual’s access to firearms, adversely affect the state’s interest in a strong militia.”

This would be the theory later adopted by Justice Stevens.

Read the whole thing. I think it’s important to put this bit of our movement’s history in context, as well as understand how our opponents fit in.

3 Responses to “The History of the Collective Right”

  1. Old NFO says:

    Thanks for the precis, I’ll go read the links. I’ve never really understood that part of the background well.

  2. Chas says:

    Markie Marxist sez: “We only have four Marxists on the Supreme Court now, so we’ll have to wait until we get one more Obama appointee in place until we can replace the individual rights interpretation with our collective rights interpretation. That will put an end to the Second Amendment.”

  3. Bram says:

    Did the collective right thing ever make a bit of sense? None of the other Amendments in the Bill of Rights was considered a collective right.

    What other country, regardless of their individual gun laws, needs an Amendment to their constitution in order to arm their police and army? it has always been liberal crazy talk.

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