collective right
A modest proposal
Carry out the well-regulated militia part of the Second Amendment with a guns for all program.
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Unpublished opinion re: State Guards
I found an interesting unpublished 6th Circuit decision. The 6th has long been a "collective rights" circuit. This ruling dealt with a fellow who had unlicensed full autos, but was a member of the State Guard, a State-organized group designed to augment the National Guard, and subject to activation by the governor. Members of the State Guard are (at least when not activated) expected to provide their own firearms, and given three days annual trainng by the Guard.
Defendant testified that after 9/11 he became concerned that the State Guard was under-armed, and so he assembled some full autos for their use, and sometimes trained his unit with them.
OK, you can see where this is going to cause heartburn for a "collective right" approach. The fellow actually is a member of a State organized militia, and testifies that he prepared arms for them. But the court upholds his conviction, adopting a test from the 10th Circuit: a defendant "must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service." The court essentially rules that since the State Guard can be armed by the State when activated, and the governor *probably* would do that, ownership of the guns was not reasonably related to its purposes. Nevermind the question of training before being activated, or that the governor might find it convenient for the units to have their own equipment.
Hat tip to Mad Duck.
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Nelson Lund article
Just finished Nelson Lund's "Putting the Second Amendment to Sleep," 8 Green Bag 101. It's a deservatively negative review of two books which were intended as critiques of the individual rights view. Details in extended entry below.
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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.
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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?
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