Personal tools
 
Views

Argument: Court rulings that the Second Amendment retains only a collective right to arms

From Debatepedia

Jump to: navigation, search

Parent debate

Supporting evidence

State v. Buzzard (1842, Ark)

In State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, 'that the free white men of this State shall have a right to keep and bear arms for their common defense',[56] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood 'indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment.' The Arkansas high court further declared 'That the words 'a well regulated militia being necessary for the security of a free State', and the words 'common defense' clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms.'[1]

Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873)

Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the 'Arkansas doctrine', as the orthodox view of the right to bear arms in American law.[2]

Salina v. Blaksley (1905)

In 1905, the Kansas Supreme Court in Salina v. Blaksley[59] made the first collective right judicial interpretation, despite the U.S. Supreme Court ruling in Presser v. Illinois which some people view as having ruled otherwise in 1886. The Kansas high court declared:

That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "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."[3]

Lucilius A. Emery, Chief Justice of the Main Supreme Court, 1915, Harvard Law Review article

The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."[60]

United States v. Cruikshank (1875)

The Second Amendment attracted serious judicial attention with the Reconstruction era case of Cruikshank which ruled that the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments; stating that the Second Amendment "has no other effect than to restrict the powers of the national government."[4]

Problem with the site? 

Tweet a bug on bugtwits
.