A recent distraction is, "before the NRA got to it, the 2nd Amendment wasn’t an individual right". That somehow this a right of the people (plural: meaning the collective), and thus not of individuals, thus the people can regulate it away. (The milia is "us", so "we" can say that "you’re" not the militia as an individual, and thus you don’t need your gun). However, six relevant Supreme Court decisions have recognized that the Second Amendment guarantees an individual's right to keep and bear arms, not a collective one. There aren't really collective rights enumerated in the Constitution.
The problem is pesky history: the reason the bill of rights was created is because in the ratification of the Constitution there was fighting over the wording of the enumerated rights of individuals. So they agreed to ratify the constitution AND get the bill of rights to enumerate what the individual rights were. So the whole reason why the Bill of Rights (including the 2nd) was written was to protect the individuals rights from the government. The Framers understood the concept of a "right" to apply ONLY to individuals.
There was never any discussion about collective rights, there has never been any historical, legal or linguistically evidence that they were written to mean: “all these are individuals rights, except for the 2nd”. And if you claim that the Bill of Rights are not individual rights, then your right to free speech, protections from illegal search and seizure, are also dependent on the public whims of the collective. So while it’s popular to try to teach the "collective rights” fallacy in Colleges and places of lower learning, no Supreme Court decision has ever held a right to be “a collective right”. And you don’t have to take my word for it, there are multiple quotes, legal (Supreme Court) rulings, and the words of the authors and experts:
The wording in the state ratification conventions (for the Constitution) fought to declare the 2nd Amendment even more explicitly:
- New Hampshire wanted it to read, "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."
- Massachusetts wanted to read, "be never construed...to prevent the people of the United States, who are peaceable, from keeping their own arms.”
- Pennsylvania wanted the Constitution to state, "that the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals."
None of the states were looking to water it down, or clarify that it only applied to Militia's. (In fact, adding Militia clause was meant to strengthen it, in stated that it applied to more than just hunting and explicitly to defense against governments).
❝ "In recent years it has been suggested that the Second Amendment protects the ‘collective' right of states to maintain militias, while it does not protect the right of ‘the people’ to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century, for no known writing surviving from the period between 1787 and 1791 states such a thesis" ❞
❝ "...It is always dangerous to the liberties of the people to have an army stationed among them, over which they have no control...The Militia is composed of free Citizens. There is therefore no Danger of their making use of their power to the destruction of their own Rights, or suffering others to invade them.” ❞
❝ "The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.” ❞
❝ The [2nd Amendment] may be considered as the true palladium of liberty… The right of self defense is the first law of nature.... Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color of pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." ❞
❝ "The term 'the people' as explicitly used in the Second Amendment and elsewhere in the Constitution and Bill of Rights is a term chosen by the Founding Fathers to mean all individuals who make up our national community." ❞
❝ "The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” ❞
❝ the right to keep and bear arms, like rights protected by the First, Fourth, Ninth, and Tenth Amendments, is an individual right held by "the people," ❞
❝ "All citizens capable of bearing arms constitute the reserve militia, and the states cannot prohibit the people from keeping and bearing arms so as to disable the people from performing the (militia) duty to the general government.” ❞
❝ "The right of bearing arms for a lawful purpose is not a right granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.” ❞
❝ The 2nd Amendment, "protects an individual's right to possess a firearm, unconnected to service in a militia". ❞
❝ Of thirty-nine law review articles addressed the Supreme Court case law, thirty-five supported the individual right view and only four support the "collective right only” view. Three of these four are co/authored by employees of the antigun lobby. ❞
❝ "The states' rights reading puts great weight on the word ‘militia', but this word appears only in the Amendment's subordinate clause. The ultimate right to keep and bear arms belongs to 'the people' not 'the states.' As the language of the Tenth Amendment shows, these two are of course not identical when the constitution means ‘states', it says so. Thus as noted above, 'the people' at the core of the Second Amendment are the same ‘people' at the heart of the Preamble and the First Amendment, namely citizens.” ❞
❝ The militia is comprised of all able-bodied males, adding that "ordinarily when called these men were expected to appear bearing arms supplied by themselves and of a kind in common (military) use at the time.” Thus all military style weapons (assault weapons) were especially protected under the 2nd Amendment, but it allowed government to regulate Short Barreled Rifles (SBR’s) and sawed-off shotgun because they didn’t have application to the militia.. ❞