Not a gun control debate, just trying to understand this better.
I often hear US v. Miller cited when people point to the origin of the ‘collective rights’ interpretation, but from what I’ve read of the case, it doesn’t seem to be the case at all.
It seems that the ruling was based on the fact that the weapon he used was not demonstrated to be an asset to a militia - and if it was about whether or not he had the right to own a gun as part of the militia, it would’ve been thrown out on THAT issue, rather than the militia value of the gun.
In all I’ve read, I haven’t seen anything suggesting it implies any sort of ‘collective rights’ theory, but people seem to cite it like it does.
Is there something I’m missing? Does US v. Miller support a collective rights interpretation?
Also I’ve heard that “well regulated” means capable instead of what is commonly thought as under the control of government. But I’ve only heard this once. Anyone else out there who could confirm or deny this?
I’m wondering why Barking Spider says there is no such thing as collective rights. I don’t know how it applies to the Second Amendment, but many human rights are clearly collective rights as opposed to individual rights, such as the right to self-determination, freedom to form trade unions, etc.
US v. Miller (yes I’ve read the ruling) found against Miller because the sawed-off shotgun was not listed as a miltary weapon. It said nothing about whether the SA was or was not an individual right.
Indeed, a strict reading of the decision could be used to justify private possession of military weapons, such as bazookas and machine guns…
A more recent Federal Court decision is the Emerson case, which clearly and unequivocally supports the idea that the SA refers to an individual right to keep and bear arms [RKBA], i.e., that the SA does not protect only the RKBA of members of the military or National Guards.
There is a lot of hoplophobia (irrational fear and hatred of weapons) in the “gun debate.” I would assume that subscribers to the SDMB would not be affected by this, but who knows…
Well- regulated is certainly part of it. The argument often quotes “the second amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiecy of a well regulated militia” from Miller. In other words, so they say, you have the right to keep and bear arms so far as is necessary to maintain a civilian army, and no further.
A tortured reading, maybe, but a very common one. Emerson, even if the more correct reading, is still something of an anomoly.
A note on the emerson case: There was no defense at the supreme court trial because the defendent could not be located, and therefore could not appoint a defense.
The government lawyer effectively lied about the military usefulness of short-barreled shotguns, and there was no defense to raise the issue.
But even given that, it seems to me that it is the type of weapon that is relevant when determine second amendment protection, rather than the person. Is that correct?
Almost always, when anti-gun rights people bring up US v. Miller, they say it’s the origin, or at least confirms, the ‘collective rights’ theory. What I’m wondering is exactly what is in there that even begins to SUGGEST a ‘collective rights’ theory.
To me, it seems, that the Supreme Court reaffirmed that militarily useful weapons (what we today call Evil Assault Weapons) are the most protected under the second.
I find it ironic that they cite this case as if they “won” it, when in reality, it protects the guns they want to ban.
I asked this question in GQ because I’m trying to figure out if there’s something I’m missing. If there’s something that suggests a ‘collective rights’ theory, or something that says you must specifically be a member of a state militia, that would cause them to cite US v. Miller as the origin of the ‘collective rights’ theory.
That’s the crux, SensorBeef. From just my understanding of written English (and not the super-duper secret English of lawyers), my reading of Miller pretty much jibes with yours.
Must be an evil gun nut conspiracy.
Miller explicity recognized that the militia comprised
It spoke primarily to the utility of sawed-off shotguns, finding no evidence (because, as you have mentioned, none was presented) that such implements were in ordinary use by military forces, and thus was not protected under the 2nd.
A persuasive argument to the contrary could be made by just about any combat veteran or police officer.
Miller was a lopsided case, but it may be the petard upon which the Assault Weapons Bans are hoisted. It clearly held that weapons related to the efficiency of the militia, and those in common use by the military, are protected by the 2nd.
Just throwing my hat in with ExTank and Senor Beef’s understanding of the case…
It does not make any explicit mention of individual or collective rights. But if you use a shred of sense when reading it, it’s obvious that the decision ASSUMES that the right is individual. The case was not decided on grounds that owning a weapon is not an individual right. It was thrown out on the grounds that, while he has the right to own a gun, the Court did not find that the particular gun in question was useful in the operations of a militia (not true, but …), and therefore not protected.
See? He does have the right to own any gun that was useful for a militia, just not the sawed-off shotgun.
Of course, the decision is flawed in other areas, but the basic interpretation of the 2nd Amendment’s protecting an INDIVIDUAL right is correct.
Chula:
I still have some issues with you on the arbitrary things you define as rights, but I agree that there are basic collective rights. I’m actually more inclined to call most of them “powers” rather than “rights”, but we’re already doing this in the other thread, so I won’t argue it here.
Since when is a short-barreled shotgun standard military equipment? I could see using a few variants for city fighting, but it’d be useless anywhere else. In any event, there are many better weapons, like carbines or any small automatic with good damage.
Miller supports the collective rights interpretation because it argues that the individual’s right to own a weapon is restricted. You have a right to own a weapon capable for military use, because you’re, if you’re a man over 18, a member of the militia, subject to being called up by your state, in defense of that state. So, theoretically, your right to gun ownership isn’t absolute, but due to your membership in the militia at large.
Whether you argue that the 2d protects the individual’s right to own a gun or not, this is only vis-a-vis the federal gvt. The 2d has never been incorporated into the “substantive due process” of the 14th to limit any state to pass statutes forbidding or regulating such ownership. The right to own a gun is not a basic right that would be encompassed by the 14th, and SCOTUS never has so held.
In the jungles of Vietnam, shotguns were highly prized. The pointman would often carry one instead of a rifle.
Police and federal agents routinely carry shotguns in urban operations, for clearing buildings etc.
At short ranges, shotgun shells (esp. slugs) are MORE effective, shot for shot, than pistol rounds or .223 rounds. They are also useful for shooting open doors, starting a fire w/ incendiary rounds and so on.
Recently (within the past decade or so) the military has been putting a great deal of emphasis on training for urban operations.
I’m not sure what you’re saying. It wasn’t judged whether he was a member of the militia at large, just whether or not the weapon he used was suited for militia purposes.
Restrictions would be due to the lack of utility as a militia weapon, rather than any sort of membership in a militia. There was never any sort of judgement as to whether he, personally, had an individual right, that seems to have just been assumed. The question was whether or not the weapon was militarily useful, and therefore protected on those grounds.
You seem to be saying ‘since it’s subject to restriction, it’s a collective right’, which would, of course, be analgous to saying the first amendment is a collective right due to the restrictions on yelling ‘fire!’ at a crowded book burning.
Sorry, I don’t mean to start a debate in here - actually, I may post a GD thread about this - I just saw your answer as flawed and thought you might have something more to substantiate it.
Well, but the court addressed the question of whether or not the shotgun was a millia weapon because the court ruled that that’s what the second amendment protects…arms that have military use. The second amendment protects those weapons, Miller says, because it was written to make sure that the militia would be armed in time of necessity. That’s why McReynolds only spends one paragraph dealing with the shotgun, and fourteen trying to define what the word “militia” means in the second amendment. That’s also why he footnotes Presser v. State of Illinois, which states:
Ergo, Cap’n, the individual (at least males between a cetain age range, and of general physical and mental fitness), being by default a member of the militia of the respectives states and of the Unitede States, has the right to keep and bear arms.
With the inclusion of civil and equal rights, it’s not a great judicial or interpretive leap to include women and other previously excluded minorities (read: non-whites).
Being as every person has the right of self defense (I believe that the International Bill of Rights affirms this, as well), use of these weapons for self defense (by any capable citizen) and other “ordinary” uses (hunting, recreational shooting) wouldn’t really be excluded either.
The oft-touted “gun lobby” never had any serious reservations against disqualifying certain classes of individuals, such as known violent felons, habitual substance abusers, those abjudicated as mentally unfit, those dishonorably discharged from the military, those who have renounced their citizenship, and now domestic abusers as well (the NRA, and myself, too, would like that to be amended to read convicted domestic abusers, not just someone whose pissed-off-soon-to-be-ex-wife has filed a complaint against at the local police station).
Yes, basically Miller goes along with that intepretation. But the individual doesn’t have the right inherantly because he’s an individual, but instead, because, by law, he’s part of the militia.
The thing about that, though, is, and this is why Miller provides the basis for the collective rights interpretation, it’s up to the states and the US to define who’s a member of the militia, and Miller cites two different state laws, those of New York and Virginia, with two different definitions of who is in the militia.
Actually, it might be an intepretive leap to include women in that definition. Women have never been considered part of the militia in the US before, and the act that draws most heavily on the concept of the militia at large, the Selective Service Act, doesn’t apply to women.
