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PaperclipPerfector  1yr ago (text post)   29600 thread views

Culture War Roundup for the week of October 2, 2023

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whilst changing the rules it contains to suit their purposes.

You seem to be implying that jurisprudence that takes a narrow view of the rights afforded under the 2nd amendment is somehow a recent innovation or reinterpretation, but the collective rights interpretation runs back for almost two centuries. See Aymette v. State of Tennessee (1840), which upheld a ban on the concealed carrying of weapons - in that particular case a knife. The key here was no just the militia but what 'bear arms' could reasonably be considered to include;

To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this State shall be compelled to bear arms provided he will pay an equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he had a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

See also State v. Buzzard (1842), City of Salina v. Blaskley (1905) and US v. Adams (1935).

That's not the collective right interpretation though. It's the Miller standard of bearing arms useful for war, orthogonal to individual versus collective. Meanwhile some nobody Lysander Spooner writing in 1856 noted the right as individual and for personal defense as much for militia service. Or Charles Humphrey writing in 1822 "that in this country the constitution guarranties to all persons the right to bear arms." Warren Burger was a tool.

On reflection my comment was poorly written, but both Aymette and Buzzard cover collective rights no?

From Buzzard (Ringo);

That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide.

The question of arms useful for war is closely connected to this because if the purpose of the 2nd Amendment (or state equivalents) was collective then it would provide no protection for arms both not 'borne' in fact and not able to be borne under any circumstances.

Lysander Spooner

Indeed so, my point here is not to suggest that there is no equal tradition of, and evidence for, an individual right interpretation, merely to contest the point in the comment I replied to that more restrictive interpretations being deployed now are simply innovations that not even their proponents believe are consistent with the Constitution. While we are here though, see the reverse case from Benjamin Oliver, Rights of an American Citizen (1832);

The provision of the constitution, declaring the right of the people to keep and bear arms, &c., was probably intended to apply to the right of the people to bear arms for such purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.

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