City of Salina v. Blaksley -- a bit of a mystery
City of Salina, a 1905 Kansas case, is the origin of the "collective right" view of the right to arms (a bit of a misnomer, since it is actually a "no rights" view). In doing a bit of digging into it, I found the only surviving record from the lower courts -- the docket sheet of the appeal from municipal court to the district court. From the district court appeal was to the Kansas Supreme Court (there was no court of appeals until 1977).
Here's the mystery. The district court docket shows Blaksley received a trial do novo and was convicted on August 29, 1898. What happened to the appeal between 1898 and the Kansas Supreme Court decision in 1905?
Other interesting discoveries:
James Blaksley was a 49 year old stockman, living not in Salina, but in a rural part of the county, when he was arrested for being intoxicated while in possession of a firearm. The State subpoenaed Mr. and Mrs. Isaac Davis and a John Davis, and the defense subpoenaed L.M. Tuttle -- the JP before whom the case had been tried. Five witnesses testified.
The docket sheet indicates that he was fined $1.00.
[Update in light of comments: Trial de novo occurs when a personal appeals from a court "not of record," where no transcript is made of testimony. On an appeal of that type, the court holds a second, new ("novo") trial. So he was convicted in municipal court, appealed and got a trial de novo in district court, then took a regular appeal to the state supreme court.
What happened there was that the court held that the Kansas guarantee of a right to arms did not cover his actions, because it related only to bearing arms in a militia-type function. This 1905 case was the entire starting point of "collective rights" theory.
The key to the court's reasoning was the Kansas guarantee's wording: "that the people have the right to bear arms for their defense and security" (Note only "bear," no "keep," and the reference to defense and security). The court ruled that "refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated, and that "the military shall be in strict subordination to the civil power." It deals exclusively with the military. Individual rights are not considered in this section."
Given the wording, the decision isn't completely unreasonable (the problem comes when people try to apply it to the Second Amendment, which is quite differently worded). I don't think it's the best interpretation even of the Kansas provision, since it makes it quite meaningless, and we can assume drafters don't put meaningless clauses in a bill of rights. What is the "right" that exists under this interpretation? Militia service was *compelled,* not voluntary. So it'd be rather like saying "the people have a right to be forced to do things by the government." A rather peculiar right. More like an anti-right.
I think the spread of the Blaksley approach (and its migration into Federal caselaw) is one of the clearer cases of result-oriented jurisprudence. Courts are extremely adverse to striking down a gun law, and often will do whatever is necessary to avoid that result. So if that requires a court to apply Blaksley while ignoring the peculiar working of the constitution it construed, they'll do it. It gets the desired result.