Origins of "collective right" theory of the right to bear arms, state constitutions, and two meanings of "collective"

[Tobias Wolff]

A question for Jack, Randy, Eugene and others.

In my work on the Don't Ask, Don't Tell policy, I've had occasion to
think a lot about the citizenship rights that are bound up with service
in the military (a subject that many before me, like Kenneth Karst,
have written about eloquently).  Service in the military, or in the
defense of one's home, has traditionally been one of the exclusive
avenues in American society for cultivating and exhibiting certain
important personal and civic virtues.

As I read the litany of provisions Eugene sets out below, it strikes me
that they seem to be speaking much more to these citizenship rights
than to the physical possession of weapons.  The thrust seems to be
an equal opportunity to participate in the defense of oneself and the
State, rather than an equal opportunity to become an army of one.
Participation in the military, of course, has historically been restricted
on the basis of race, gender and sexual orientation, and those
restrictions have operated precisely in service of maintaining the
value of the citizenship status conferred -- equally -- upon the group to
whom it was reserved.  In this light, the Second Amendment may
speak, not to a "collective" right of the State to maintain a militia, but to
a personal, individual right to enjoy equal citizenship status through
the opportunity to participate in such a body.

Such a reading seems to combine many of the most pertinent
aspects of both the "personal right" and "collective right" debate.  The
"right" in question is certainly personal (and perhaps, enforceable),
but it is a personal right to equal citizenship status in the important
realm of defending one's home and one's State -- a defense that
rests in the hands of government to guide and define.   In the late
Eighteenth Century colonies, it is easy to see how the preservation of
such citizenship status could casually be conflated with personal
ownership of a weapon, as the latter was a practical necessity in
service of the former.

I wonder whether the scholars in this field could comment on
whether this avenue of interpretation has been pursued.

-- Tobias

>     One difficulty with discussions of a "collective right" to bear arms
is
> that there are two possible definitions.  One is that the right *is
aimed*
> at least in part at protecting society as a whole (or perhaps some
political
> jurisdiction, such as a state) against a tyrannous government.  The
second
> is that the right *belongs* only to a state or to some other collective
> state-defined entity, such as a National-Guard-type organization,
whose
> membership can be limited to only those people chosen by a state
-- and
> attempts to disarm the public at large, so long as the state agrees
and so
> long as the small state-defined group retains the right to keep
guns, are
> constitutional.
>
>     There is ample Framing-era evidence for the first proposition,
which is
> that the right can be claimed by individuals, and bars the
government from
> disarming individuals, but is aimed at protecting society.  There is
> virtually no such evidence for the second proposition; as Randy and
Glenn
> point out, it was mentioned only in passing in some 1800s
arguments, got a
> toe-hold in the early 1900s, and then was adopted by the federal
courts
> starting with the 1940s and eventually even more strongly in the
> 1960s-1990s.
>
>     The best illustration of this is the views of Blackstone about the
much
> more limited English right, and the Framing-era state constitutional
rights
> to bear arms:
>
>     Blackstone:  The fifth and last auxiliary right of the subject, that I
> shall at present mention, is that of having arms for their defence,
suitable
> to their condition and degree, and such as are allowed by law.
Which is
> also declared by the same statute . . . and is indeed a public
allowance,
> under due restrictions, of the natural right of resistance and
> self-preservation, when the sanctions of society and laws are found
> insufficient to restrain the violence of oppression.
>     . . .  [T]o vindicate [the three primary rights of personal security,
> personal liberty, or private property], when actually violated or
attacked,
> the subjects of England are entitled, in the first place, to the regular
> administration and free course of justice in the courts of law; next,
to the
> right of petitioning the king and parliament for redress of
grievances; and,
> lastly, to the right of having and using arms for self-preservation
and
> defence.
>
>     1776 North Carolina:  That the people have a right to bear arms,
for the
> defence of the State; and, as standing armies, in time of peace, are
> dangerous to liberty, they ought not to be kept up; and that the
military
> should be kept under strict subordination to, and governed by, the
civil
> power.
>
>     1776 Pennsylvania:  That the people have a right to bear arms for
the
> defence of themselves and the state; and as standing armies in the
time of
> peace are dangerous to liberty, they ought not to be kept up; and
that the
> military should be kept under strict subordination, to, and governed
by, the
> civil power.
>
>     1777 Vermont:  That the people have a right to bear arms for the
defence
> of themselves and the State -- and as standing armies in time of
peace are
> dangerous to liberty, they ought not to be kept up; and that the
military
> should be kept under strict subordination to and governed by the
civil
> power.
>
>     1780 Massachusetts:  The people have a right to keep and to
bear arms
> for the common defence.  And as, in time of peace, armies are
dangerous to
> liberty, they ought not to be maintained without the consent of the
> legislature; and the military power shall always be held in an exact
> subordination to the civil authority, and be governed by it.
>
>     1790 Pennsylvania:  The right of the citizens to bear arms in
defence of
> themselves and the State shall not be questioned.
>
>     1792 Kentucky:  That the right of the citizens to bear arms in
defense
> of themselves and the State shall not be questioned.
>
>     1796 Tennessee:  That the freemen of this State have a right to
keep and
> to bear arms for their common defence.
>
>     1799 Kentucky:  That the rights of the citizens to bear arms in
defense
> of themselves and the State shall not be questioned.
>
>     1802 Ohio:  That the people have a right to bear arms for the
defence of
> themselves and the State; and as standing armies, in time of
peace, are
> dangerous to liberty, they shall not be kept up, and that the military
shall
> be kept under strict subordination to the civil power.
>
>     1816 Indiana:  That the people have a right to bear arms for the
defense
> of themselves and the State, and that the military shall be kept in
strict
> subordination to the civil power.
>
>     1817 Mississippi:  Every citizen has a right to bear arms, in
defence of
> himself and the State.
>
>     1818 Connecticut:  Every citizen has a right to bear arms in
defense of
> himself and the state.
>
>     1819 Maine:  Every citizen has a right to keep and bear arms for
the
> common defence; and this right shall never be questioned.
>
>     1819 Alabama:  That every citizen has a right to bear arms in
defence of
> himself and the state.
>
>     We see that most of these constitutions contemplate the right to
bear
> arms as being at least in part about defending the polity.  Some
also
> explicitly mention a right to bear arms for self-defense, presumably
against
> crime, and throughout the 1800s state right to bear arms provisions
were
> indeed universally so interpreted; but the majority of the focus
seems to be
> on defending the collective, presumably against Blackstone's
"violence of
> oppression."
>
>     But it is also clear that these rights, present in state bills of
> rights, and aimed at restraining the state government, *cannot* be
rights
> that belong to the state.  (Likewise, the Blackstonian right cannot be
seen
> as a federalist measure, since England was not a federal nation;
and it also
> specifically refers to a "right of the subject.")  Similarly, they cannot
be
> rights that belong to a small group of people that can be chosen by
the
> state government, such as a National Guard -- or else they would
meaningless
> as rights.  What's more, the reference to rights of "the people," "the
> citizens," and "every citizen" show that the right belonged to all
citizens
> (naturally, excluding slaves, Indians, and probably free blacks,
given the
> contemporary understanding of who could be true rightsholders).
Thus, for
> instance, a state law banning all people except for a small
state-authorized
> group -- such as the police or the National Guard -- would clearly
violate
> these state constitutional provisions; in fact, it seems like the
> quintessential example of what the provisions would ban.
>
>     So the rights in state Bills of Rights were *not* rights of the state,
> or rights of a select militia.  Neither is the right to have arms in the
> English Bill of Rights, on which the state rights and eventually the
federal
> right were clearly built.  (Of course, the right changed considerably
in
> shifting from England to the U.S. -- it became, along with other
rights,
> judicially enforceable, hence the omission of the "as allowed by
law"
> qualifier; it became applicable without religious constraint, hence
the
> omission of the "Protestant" qualifier; and it was adapted to a
society in
> which white males at least were generally not divided into classes,
hence
> the omission of the "suitable to their conditions" qualifier.)  The
state
> rights were rights that belonged to each citizen, even if they were
aimed at
> preserving the citizenry at large.
>
>     Either the Second Amendment was seen as following the same
model, which
> today would be called the "individual right" model -- or there has to
be
> some evidence that the phrase "the right of the people to keep and
bear
> arms" means one thing (a right of all citizens, built on the "right of
the
> subject") in the state constitutions, and something completely
different (a
> right of a state, or a right of a selected group of state citizens, which
is
> what is today referred to as the "collective right" model) in the
federal
> constitution.  I know of no such evidence, which leads me to believe
that
> the federal and the state rights were both seen as belonging to all
> citizens.  And this of course is the view that is echoed by all 1800s
commen
> tators, from Tucker to Story to Cooley, and various others in
between, plus
> all the 1800s cases.
>
>     Eugene
>