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Thought experiment with collective rights theory
While we're on Heath's thesis, I'd recommend a look at Don Kate's and Glenn Reynold's William and Mary Law Review article.
Their point is essentially: the collective rights view survives only because no one means to take it seriously; it just furnishes the easiest way for courts to say "we can ignore the Second Amendment." If anyone did take the view seriously, they'd have to conclude that the Amendment was meant to curtail Federal power over the States' military capabilities (at the very least, over their reserve forces, and perhaps even as a repeal of the prohibition on States maintaining troops, as distinct from militia), or as a command to Congress to create a citizen army. Not to mention the entire National Guard system would be called into serious doubt.
"Our thought experiment has thus produced two noteworthy results. The first is the realization that the states' right interpretation of the Second Amendment, if taken seriously, would produce rather radical consequences--consequences that (perhaps deliberately) have not been discussed by its proponents. In light of those radical consequences, and the interpretation's general inconsistency with the rest of the Constitutional scheme, the states' right theory looks like a dud.[92] What is amazing is that it has achieved such currency, at least in the popular constitutional debate.
And that is the second lesson. Although the states' right interpretation has obtained very little in the way of scholarly support in journals that require footnotes,[93] it has been widely circulated in the popular press, even by respectable scholars who should (and, one suspects, do) know better.[94] And this suggests a rather (p.1766)unfortunate fact: the constitutional currency has become rather debased. In the Reagan era, right-wing scholars and spokespeople were trying to narrow constitutional rights through specious interpretations. Now, with political power having shifted, the disease has spread to those on the left. Meeseism, it would seem, respects no ideological bounds.
This state of affairs is unfortunate, and for those of us who at least try to take the Constitution seriously, it is frustrating. And, because the Constitution is our blueprint for living together without killing or tyrannizing each other, it may even be dangerous."
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Mr. Hardy writes: "I'd recommend a look at Don Kate's and Glenn Reynold's William and Mary Law Review article."
Me: I assume you mean "The Second Amendment and States' Rights: A Thought Experiment", 36 Wm. & Mary L. Rev. 1737-1768 (1995). A very good article. Here is a link:
http://guncite.com/journals/rk-exp.html
I think it is clear that the record supports an individual rights view of the 2nd... at least as far as it concerns the federal government. The only argument that I could possibly muster would be that it would not be something binding upon the states under the 14th.
I can play devils advocate, if you wish?
PS: I have read the fundamental liberty argument on this site. ;-)
Mr. Hardy writes: "If that were the rule from Miller, the case would have been decided easily for the Government with the holding that Miller had no standing."
Me: Not really. since the lower court found in favor of Miller, the US Supreme Court had to review the constitutional issue, if only to "reverse and remand" the case back to District Court. Of course, such a finding regarding standing was actually made in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)... In my view, the Hickman court did not even bother to read Miller carefully. For example, the Hickman Court states this: "The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court UPHELD a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce." Id. (Emphasis supplied). Excuse me? Upheld a conviction??? In Miller the lower court dismissed the indictment finding that the law under which the indictment was issued was unconstitutional under the 2nd. There was NO trial, let alone a conviction.
I have the fourtheen amendament right in front of me. Nowhere does it say that there is an exemption for the second, nor does it define "fundamental" rights or "non-fundamental" rights.
That arguement that the fourteenth does bind some rights to the states and not others is a complete crock of BS.
In reading a couple of collective rights opinions today I noticed a trend involving the twisting of Miller v. U.S. The cases went beyond Miller and said that since the petitioners weren't in the militia, they could not make a constitutional claim. If that were the rule from Miller, the case would have been decided easily for the Government with the holding that Miller had no standing. The Collective Rights Beast is built on a foundation of sand, and the only way to keep it up is to keep piling on its hollow logic.