Collective Right?

I recently came across a Letter To the Editor (LTE) in the Toledo Blade, here it is:

2nd Amendment is about collective right

In The Blade’s Dec. 27 Readers’ Forum there was a letter headlined “Other amendments suffer in 1939 ruling.” The letter writer questioned if the Second Amendment to the U.S. Constitution is a collective right, or an individual right. Obviously, if one were to read the Second Amendment, “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,” then one would know that the Second Amendment is a collective right. “Militia” is a collective word (done by or belonging to all the members of a group), which explains who the people in this amendment are.

The National Rifle Association’s deliberate omission of the militia language is nothing more than a constitutional illusion created by mass advertising to further a commercial and monetary goal.

It is this deliberate omission that confuses some people about the meaning of the Second Amendment. There is nothing in the language even remotely suggesting a constitutional right to keep and bear arms for hunting, self-protection, target shooting, or other individual pursuits unrelated to the operation of state militias.

Besides the 1939 Supreme Court case, United States vs. Miller, there have been 35 Supreme Court cases and numerous federal court cases that quote, cite, or discuss the Second Amendment. Out of all of these cases, the courts that have stated a firm position have said that the Second Amendment is not an absolute or individual right.

And for those who are wondering, I own numerous guns.

Don Kosmider

Monclova

SOURCE: http://toledoblade.com/apps/pbcs.dll/article?AID=/20080117/OPINION03/801170324

Don’s letter contains key factual errors.  For one, he asserts that “‘Militia’ is a collective word”.  To me it seems as if he is arguing that Militia is not only a term for a group of individuals, but also an exclusive group.  Let’s see how the law defines militia:

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

SOURCE: http://www.law.cornell.edu/uscode/10/311.html

It is mildly exclusive.  People under age 17 aren’t in the militia.  And people over 45 years old aren’t in the militia.  Presumably because it’s assumed that people outside of these age ranges are not generally suitable for military service.  It also excludes women, though women have proven themselves in combat and military service.  Aside from those constraints, all males at least are in the militia and have the right to keep and bear arms.  The LTE author seems to have a smaller subset of people, perhaps National Guardsmen in mind.

The author also brings up United States vs. Miller to assert that “the courts that have stated a firm position have said that the Second Amendment is not an absolute or individual right.”

A common myth is that the Miller ruling laid the groundwork for legislators to impose restrictions on gun ownership based on any characteristic they found expedient. 

The fact is that in the Miller case, the court found that the defendants did not have a right to own arms that were not suitable for military use as part of their participation in the militia.

The gun in question was a sawed-off shotgun.  Interestingly, if the court had known at the time that sawed-off shotguns are occasionally employed by the military, the ruling might have been different and saved us a lot of Constitutional heartache.

If anything, the Miller decision set a precedent that all firearms owned must be suitable for national defense – for modern military use.  It’s interesting that the anti-gun elements in our society have used Miller as an excuse to specifically ban “military style weapons” as was the case under the Clinton Gun Ban.

The LTE author asserted “There is nothing in the language even remotely suggesting a constitutional right to keep and bear arms for hunting, self-protection, target shooting, or other individual pursuits unrelated to the operation of state militias.”

The fact is that there is nothing in the language of the 2nd Amendment remotely suggesting restrictions on firearms use – aside from the statement that they should be suitable for militia use.  As such, the military style weapons we own may be used for all lawful purposes.

It should also be noted that Mr. Kosmider ignored the fact that the Constitution only enumerates individual rights.  He didn’t address why he feels that while the rest of the Bill of Rights applies to individuals, when writing 2nd Amendment, the framers suddenly became interested in defending “collective rights” of states for example.  His support of this position would be especially interesting to me considering that only individuals have rights.

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