Let’s say that the 2nd Amendment, instead of being a little “murky” on its intent, was very explicit and clearly understood.
Rather than guaranteeing the right to private firearm ownership, it was silent on that point. The text was very (very!) clearly preventing the federal government from barring or disbanding organized state militias.
At what point in history do federal laws begin to broadly outlaw private ownership of firearms?
Hm ok, I didn’t try hard enough to make the OP watertight…
So I’ll just rule that that scenario, for whatever reason, doesn’t cut it. Maybe the constitution defines a militia as an organized, uniformed group, where the members have assigned rank and drill regularly. And it defines regularly as at least once a month. Etc, etc.
States are free to guarantee their own citizens’ right to carry firearms. They could still be prosecuted on federal grounds, but as we’ve seen in California and elsewhere recently such prosecutions are politically unpopular.
Since the 2nd never applied to the states, collectively or individually, until the recent Heller/Mcdonald cases, states were guaranteed (Guarantee Clause) and basically still are such, DEFENSE from invasion.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
I would expect military law to be different. The near field preemption enjoyed since Houston v Moore by the federal government over the militia power of the states would have been altered if the 2nd was ever an immunity possessed by the states.
The federalization of the state Guards by the Dick Act (1903) and Militia Act of 1916 could have been repelled if the 2nd were a protection for the states against federal interference / assumption of state militia powers.
It stands to reason that state sovereignty would have been better staked out, rather than federal preemption or at least held off for a while.
As far as the arms of the citizen, state constitutions would be the framework of rights protections and I don’t think much would change. Gun control states (especially those without RKBA provisions, NY, NJ & CA) would be doing what they have done and states with expansive rights protections would do the same.
You should understand that for all intents and purposes the effect of the 2nd was just what your premise posits. The “militia right” and “state’s right” interpretations were inserted in the federal court system in 1942 and that essentially extinguished the individual right in many jurisdictions.
In California, their state courts (and the 9th circuit) embraced the various “collective right” interpretations (by lazily relying on those lower federal court opinions) and the myriad of CA gun control enacted in the latter half or the 20th century was upheld using that reasoning. Individuals challenging gun control were dismissed out of hand as having no standing to argue a 2nd Amendment claim as the 2nd only protected state interests.
Heller slapped the lower federal courts back into the constitutional fold and invalidated the reasoning of U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) and, Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and their illegitimate progeny.
Wasn’t Heller the first case to construe the 2A to protect individual ownership of firearms? And even that case implied that almost any regulation short of an outright ban would be permissible.
I guess I think that the OP is describing what held true during much of our history. Some localities would ban firearms, but generally there would rarely be enough support to do so on a state- or nationwide basis.
Don’t want to hijack but SCOTUS has never embraced any aspect of any collective right interpretation. In the first 2nd Amendment case, (Cruikshank) the Court recognized the “right to bear arms for lawful purpose” by individuals, (that of self defense against the KKK, exercised by two ex-slaves in 1873 Louisiana), . . . at a time when there was no state militia, Congress having ordered it disbanded (as the brutal enforcers of Louisiana’s Black Codes). Pick any one previous case you want, Cruikshank, Presser, Miller or Lewis, they all endorse the individual right interpretation.
Heller’s primary constitutional action was to invalidate dozens of lower federal and state court opinions, anything reasoned on any aspect of the collective right theories, first showing in 1942 (mentioned in my previous post). This has in fact rendered infirm hundreds of gun control laws (California’s and New Jersey’s entire schemes are especially vulnerable).
As far as what arms are protected by the 2nd, Heller followed the criteria set-out in Miller but has placed more emphasis on “in common use”. As far as saying that Heller “implied that almost any regulation short of an outright ban would be permissible”, you are over-reading / misreading it . . . by a lot.
Well, the 2nd did not bind state action until 2010. States were free to do just about anything; which they did during Reconstruction (Black Codes) which forced the enactment of the 14th which was pretty much gutted by SCOTUS in Slaughterhouse (1873). That just left ‘due process’ which demanded a case by case examination which begot selective incorporation.
Without the second amendment, I suppose our gun laws might look a lot more like Canada’s perhaps with a bit more permissiveness on the issuance of handguns licenses.
Significant firearm regulation would probably have been enacted after the Civil War to disarm the Confederates. Only carpetbaggers and former slaves int eh south would have access to guns. The South would look very different today.
After the civil war, I suppose the rise of organized crime would have caused more regulation and at some point we would have somet6hing approaching what parts of Canada have.
Heller also struck down impediments to the immediate use of a gun (trigger lock requirments). The central premis of heller as far as I can grock it is that you have the right to effective self defense. The development of the law since then seems to be putting gun rights on the same judical track as free speech rights.
The problem is that the federal Constitution explicitly forbids states from having state armies. The third clause of Article One Section Ten reads:
So if the states are forbidden from keeping “troops”, then just what exactly is a “militia”? At the time it meant the posse comitatus, every able-bodied male civilian who could be summoned to arms in an emergency. The reason we’ve gotten in the habit of thinking of “the militia” as a military state body is because states gradually abandoned trying to train or drill the entire populace, and began relying on a “select” militia (what the 1903 Militia Act called the “organized militia”)- the handful of volunteers who trained on a regular basis and became the go-to’s when needed.
The premise of the OP is flawed because the militia were never intended to be a permanently organized, uniformed and ranked group. That pretty much was considered the definition of “troops”.
Even if there had been, banning weapons any time after the West was “won” probably wouldn’t have had much effect on the history of the US. (Previous to that, as I understand it, those who were driving the frontier were quite happy to use arms to push the borders of the nation, regardless of national nor state support.) Guns really only serve two purposes, home defense and as a theoretic safeguard against tyranny.
In the latter case, FDR is probably the only president who could have tried to make a go at announcing himself President for Life, but I don’t think the presence of an armed electorate had anything to do with him not doing so. And of course The Battle of Athens didn’t have a particularly meaningful result.
In the former case, intruders would still actively try to avoid discovery let alone conflict, they would/could still bring a knife or gun, and the home owner would still have every right to meet the intruder with a knife, thwompy-stick, or other means of killing another human being. Despite the magical aura that guns exude, human beings are sort of like big water balloons full of blood. You don’t really need tightly engineered, futuristic devices to kill them. So the dynamic between home invader and home protector really won’t be much different.