Opinion: Repeal 2nd Amendment To Return To ‘Collective Rights’ Over ‘Individual Rights’

There’s something about the United States that sets us apart from everywhere else in the world when it comes to gun violence. Some try to blame video games or mental health, but the those aren’t unique to the U.S.

Part of what is different is the constitutional right to bear arms, but that is read one of two ways: collective rights or individual rights.

The Second Amendment of the United States Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right. (Wex Legal Dictionary)

Until 2008 the collective rights theory was accepted as the meaning of the militia reference in the Second Amendment. The late  John Paul Stevens, appointed to the Supreme Court by Republican Gerald Ford, wrote a couple of opinion pieces about gun violence and the constitution.

From 2012, two years after retiring:

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.” (Washington Post)

The individual states that formed the Union were concerned about a national army that might infringe on their rights as a state. Remember, the Bill of Rights was ratified in December 1791 — not long after independence from England.

Justice Stevens again, from March 2018:

During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters.

That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option. (New York Times)

In 2018 Stevens argued for repealing the 2nd Amendment. I agree. The individual rights fraud pushed by the N.R.A. is partly to blame for gun violence that sets the United States apart from every other nation. A pistol in the home for self-defense is fine, but buying dozens of assault rifles and ammunition in a short period of time is not.

The recent non-scientific Sunday Poll was hijacked — more than twice the number of usual responses. The highly skewed results are visible in the original post, so I’m not going to reprint them here.

— Steve Patterson