The Recent Rise, and More Recent Demise, of the 'Collective Right' Interpretation of the Second Amendment

Abstract

Various forms of the "collective right" interpretation of the Second Amendment maintain that it protects only State rights to control militia organizations, or only the right of an individual to participate in a State-regulated militia. Until the Supreme Court's 2008 ruling in Heller v. District of Columbia, these views had been dominant in the Federal courts.

A historical analysis, however, demonstrates that this interpretation had very recent origins. Throughout the 19th century, with only a few exceptions, the right to arms was treated as an individual right by constitutional commentators, Congress, and State and Federal courts. In the early 20th century, only one State court treated the right as a collective one. In the Federal courts, the collective right view arose in the 1940s as the lower courts' negative reaction to United States v. Miller. At that, the view did not gain significant momentum until the 1970s.

Heller thus did not mark a change in constitutional interpretation so much as it marked a rejection of a comparatively recent and policy-driven trend in the lower courts. It was a revolution only in that word's original sense, a return to the point of beginning.

This paper also gives historical context to United States v. Miller. Bryan L. Frye has previously suggested that the trial judge intentionally ruled in such a way as to ensure that he would be reversed. The trial judge had formerly been a member of the House of Representatives, and had argued that even a complete ban on handguns would not be barred by the Second Amendment. In contrast, his ruling in Miller struck down (with no explanation or citation of authority) the National Firearm Act's requirement that "sawed-off" shotguns be registered.

An examination of the papers of the trial judge, and those of the then-Attorney General, gives support to this conclusion. The FDR Administration was then planning to press for additional and extensive Federal firearm regulations. The Attorney General's staff was even considering a national permit system modeled on that of Great Britain. The trial judge in Miller remained politically active while on the bench, even lobbying, and reporting to, Cabinet officials.

Keywords: second amendment, united states v. miller, gun laws, district of columbia v. heller

JEL Classification: K19