Conservative Cir. Judges Against RTKBA

[Phil Lee]

A "collective right" means what?

Does anyone know who holds a "collective right" and who may exercise it?

If the holder of a "collective right" is society (people collectively), it may only be exercise through the assent of government. In the parlance of Constitutional construction, only powers (enumerated or implied) may be exercised through government. So, if the "collective right" to arms requires government assent for its exercise, we aren't talking a right, but a power.

Actually, some are talking about treating the vague notion, "collective right", as if it is concrete and has an existence apart from the original notion of right held by individuals. They are using a technique of propaganda known as reification and specifically hypostatization (presuming that whatever can be named or conceived abstractly, must actually exist).

Marx was a big proponent of reification (Karl not Groucho) -- it seems that his intellectual descendants are alive and well on THR.

 

[RDak]

The people! Individuals!

No it is not apart from individuals having the right to own a firearm IMHO. But that's my opinion. I believe it was (also) clearly the opinion of the founding fathers and the majority opinion in Heller.

However, as you know, many justices believe firearms ownership rights can be limited to only a collective purpose. That's their opinion.

 

[legaleagle_45]

It should be noted that the Buzzard case is sometimes used to support M. Jagger's claim that the collective rights theory came about prior to 1900. (i.e., State, not Federal).

We should better define what we are talking about... There are three major subdivisions of interpreting the 2nd Amend, to wit:

1. Pure collective right. This theory disclaims any individual right. It asserts that the 2nd Amend is a "right" of the state to arm and train its militia. The first case to suggest this view was the concurring opinion of Justice Dickinson in State v. Buzzard, 4 Ark. 18 (1842). In this concurring opinion, Dickinson states:

"The provision of the Federal Constitution . . . is but an assertion of that general right of sovereignty belonging to independent nations, to regulate their military force."

This view did not really have much influence until the 9th Circuit adopted same in the case Hickman v Block 81 F.3d 98 (9th Cir. 1996). It has since been thrown onto the scrap heap of history, since NONE of the justices in Heller adopted this position.... however that is the interpretaion which M_Jagger seems to be asserting.

2. Sophisticated Collective Right. This view holds that the 2nd Amend protects an individual right which is tied to the militia. Until, the 20th century, the right to keep arms was articulated as an expansive right of all the people to keep arms that was not restricted to members of the militia. Thus we have this:

The citizens have the unqualified right to keep the weapon . . . . But the right to bear arms is not of that unqualified character. . . . ut it does not follow, that they may be borne by an individual, merely to terrify the people, or for purposes of private assassination. . . . [T]he legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence.

Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840).

In fact, even the so called founder of the modern sophisticated collective right thesis held this view:

From the foregoing premises I think there are deducible several propositions as to the power of the legislature to restrict and even forbid carrying weapons by individuals, however powerless it may be as to the simple possessing or keeping weapons. Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms28 Harv. L. Rev. 473-477 (1915).

The bastardization of the sophisticated collective rights theory into one which limited the individual right solely to members of the well regulated militia was a 20th century invention which has no support in the historical record. This is well documented by someone cited by M_Jagger, to wit: Robert Churchill, who demolished the leading advocate of such a restricted right, Saul Cornell.

3. Individual right. Also known as the "Standard Model", the individual right articulated a plainly individual right which included the individual right of self defense. This was the primary view during the founding era as articulated by the Heller decision.

 

[Phil Lee]

I don't really think legaleagle_45 goes far enough in his documentation of the three models of the 2nd Amendment.

Lacking is an explicit statement about the holder of the "right". So, it might be deduced by me based on the wording he uses to describe the "Pure collective right" that the holder in this case is the State ("assertion of that general right of sovereignty"). Because he hasn't said, that remains a guess by me and the resulting uncertainty makes discussion difficult. All of these models should define the holder of the right protected.

If the holder of the right in this selected case is the state, the Bill of Rights is reduced to an assertion of a power (sovereignty), not a right.

The "sophisticated collective right" is a notion which can't stand the test of history, no matter how sophists proclaim it, since it isn't a right but a power and would represent a fraud on the ratifiers of the Constitution as contrary to the plain meaning and stated intent of the Bill of Rights (see previous postings mentioning the preamble of the Bill of Rights).

Now, these points have been argued before elsewhere and I don't intend to resume those arguments -- especially, since I'm confident that legaleagle_45 understands them better than I.

My only point is that by defining the holder of the right, we see exposed the absurdity of the claim.

BTW -- in the case of uncertainty in meaning of the Second Amendment (not that I agree it is uncertain in meaning), it is fair to examine the preamble to the Bill of Rights to determine the intent of Congress (and ratifiers) -- this is in accord with the rules of legal statute interpretation in effect under English law at the time of the drafting of the Constitution (see my references to Beal elsewhere in this thread). That preamble doesn't favor any interpretation other than the standard model.

My intent in making a point here is that rights have holders. These need to be identified in any assertion of right. Explicitly identified.

 

[M_Jagger]

everallm:
And this has relation to 2A and RKBA in what manner?

Both topics involve the meaning of the Constitution.

The Constitution grants Congress only the power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." So, the correct answer is no. Congress cannot constitutionally employ volunteer militia, outside the boarders of United States, in the prosecution of hostilities, in the enemy's country.

 

[legaleagle_45]

Both topics involve the meaning of the Constitution.

True enough, but you could have just as easily have chosen the commerce clause for your example.

The Constitution grants Congress only the power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." So, the correct answer is no. Congress cannot constitutionally employ volunteer militia, outside the boarders of United States, in the prosecution of hostilities, in the enemy's country.

For once we are in agreement... This problem first raised it's head during the War of 1812 when attempts to use the Militia for expeditions to Canada were rebuffed by the governors of some states. Historically, this restriction has its roots in the English Common Law.

The "problem" was "resolved" by creation of the "dual enlistment" system for the National Guard in the early part of the 20th Century with the passage of the Dick Act. The constitutionality of such a system was addressed in Perpich v. Department of Defense, 496 U.S. 334 (1990). An interesting case... espescially footnote 25 and the text of the opinion associated with footnote 25.

 

[legaleagle_45]

So, it might be deduced by me based on the wording he uses to describe the "Pure collective right" that the holder in this case is the State

Correct.

Holder of the right in the "traditional" sophisticated right analysis is bifurcated:

1.) The right to "bear arms" was held by the individual but could only be exercised by him in connection with service in a state militia. "Bear arms" being defined in a strictly military sense.

2.) The right to "keep arms" was an individual right and its exercise was not restricted to members of the militia.

The modern basterdization of the sophisticated collective right alters this "keep right" so that it applies solely to members of the state militia.

I do not think you are asking who is the holder of right within the context of the Standard Model....

 

[everallm]

Quote:
everallm:
And this has relation to 2A and RKBA in what manner?

Both topics involve the meaning of the Constitution.

The stench of desperation from M_Jagger is becoming pervasive.

The topic, dear boy, as you have been failing singularly to provide a coherent set of untainted proofs for, is the the right of an individual or individuals to own, keep and bear arms.

Can Congress constitutionally employ volunteer militia, outside the United States, in the prosecution of hostilities, in the enemy's country?

Your isolated and meaningless comment above, is a transparent and obvious attempt to divert the folks who actually know their subject to a completely unrelated and irrelevant topic.

As I said, do try and stay on topic

[

 

[M_Jagger]

Any individual personal right/power/authority/freedom surrendered by the people to their government becomes a collective right/power/authority/freedom.

For example: When the people, under the Constitution, surrendered their right "to coin money" and "regulate the value thereof", they transformed their personal rights into a collective right.

 

[legaleagle_45]

M_Jagger:
Any individual personal right/power/authority/freedom surrendered by the people to their government becomes a collective right/power/authority/freedom.

A covenant not to defend myself from force, by force, is always void

Thomas Hobbes, LEVIATHAN.

It is in vain for a man to have a right to the End, if the right to the necessary means be denied him, it follows, that since every Man hath a right to preserve himself, he must also be allowed a right to use all the means, and do all the actions, without which he cannot preserve himself.

Thomas Hobbes, Man and Citizen (De Homine and De Cive).

 

[mbt2001]

Any individual personal right/power/authority/freedom surrendered by the people to their government becomes a collective right/power/authority/freedom.

For example: When the people, under the Constitution, surrendered their right "to coin money" and "regulate the value thereof", they transformed their personal rights into a collective right.

That isn't true. You are attacking this from a legal angel, now you are anxious to jump into a philosophic angle to save yourself from drowning.

In the US of A the people are always ALWAYS the SUPREME HOLDER OF ALL POWER, in essence we LEASE it to the Government. They are supposed to STEWARD IT (POWER) IN GOOD FAITH. I agree that your idea is gaining increasing currency, however it is still and will always be flawed, as it is built on the ignorance of the governed.

Companies "coin" money all the time. It is called stock... Promisory notes... et cetera

 

[M_Jagger]

The right of the people "to raise and support Armies" is a collective right.

 

[legaleagle_45]

The right of the people "to raise and support Armies" is a collective right.

The constitution describes it as a "power" of Congress and not as a "collective right" of the people.

 

[M_Jagger]

Jagger
Article XVII of the Mass. Constitution:

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.

RDak
It was an individual right to own a firearm for the common defense.

Since the object of the right was collective defense, it stands to reason the right was a collective right.

 

[M_Jagger]

Here's a collective right:

...the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.

--Massachusetts Constitution of 1780​

 

[M_Jagger]

Here's a collective right in the Massachusetts Constitution of 1780:

the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.​

 

[M_Jagger]

Here's another:

...the several towns, parishes, precincts, and other bodies-politic, or religious societies, shall at all times have the exclusive right and electing their public teachers and of contracting with them for their support and maintenance. ​

 

[M_Jagger]

Here's another one:

The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled.​

 

[M_Jagger]

Here's another one:

...the people alone have an incontestable, unalienable, and indefeasible right to institute government, and to reform, alter, or totally change the same when their protection, safety, prospertiy, and happiness require it.​

 

[M_Jagger]

Here's another one:

...the people have a right at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.​

 

[M_Jagger]

Here's another one:

The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives; and they have a right to require of their lawgivers and magistrates an exact and constant observation of them, in the formation and execution of the laws necessary for the good administration of the commonwealth.​

 

[legaleagle_45]

Since the object of the right was collective defense, it stands to reason the right was a collective right.

Non sequitur. An individual right may have a collective purpose but that does not convert the individual right into a collective one. Example #1. The right to vote is an individual right which is exercised collectively in order that the people may choose their representative. The fact that each person does not individually get to choose their own representative does not convert the individual right to vote into a collective right. Example #2. An individual juror may not determine the guilt or iinnocence of the accused, it must be done in conjunction with other jurors. However, the right to serve on a jury is an indiviual right and not a collective one, as an individual may not be excluded for cause based upon reasons not associated with his ability to serve on the jury.... and I can always go with the right to peaceably assemble....

Thus, even assuming your premise, your conclusion does not "stand to reason" that it is a "collective" right instead of an individual right.

 

[M_Jagger]

The people of Vermont didn't think much an individual right to keep and bear arms when they established the Vermont Constitution of 1784. The didn't even mention it in their Bill of Rights.

http://www.lonang.com/exlibris/organic/1784-nhr.htm

 

[M_Jagger]

Who won the election?

 

[M_Jagger]

In the North Carolina Constitution of 1776, the "right to bear arms" was a collective right and it was only for the defense of the state, not of the individual.

...the people have a right to bear arms, for the defense of the State

--North Carolina Constitution of 1776
​

http://www.lonang.com/exlibris/organic/1776-ncr.htm