Collective rights?

[ATN082268]

I had a couple of questions regarding rights. Forgive my confusion

1. What are collective and individual rights?

2. Can a certain Amendment to the US Constitution, like the 2nd, be considered a collective right but not another one, like the 1st? For this I am looking for a little more beyond just because the Courts say it is so.

Thank you.

 

[Aguila Blanca]

"Collective rights" means you have a right to possess a firearm only when you are part of a group that is authorized to possess or use firearms. Surprisingly, the constitution of Massachusetts -- the seat of the American revolution -- is set up that way:

Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Note that it makes no provision for the people to have an "individual" right of self defense. In Massachusetts, the RKBA exists only for the "common" defense. That's what a collective right means.

Compare that to the constitution of the state of Connecticut, right down the road from Massachusetts:

SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

Connecticut explicitly provides for the RKBA both individually ("in defense of himself") and collectively ("and the state").

 

[natman]

The notion of a "collective right" in reference to the Second Amendment was a fiction made up by anti gun bigots to twist it to their liking. For decades they argued that the Second was a "collective right" that limited citizen's access to arms unless under control of the government, despite the entire rest of the Bill of Rights being declarations of individual rights that limited the actions of the government controlling its citizens.

The notion that one - and only one - of the ten amendments would be written with an intent completely opposite to the other 9 is preposterous.

Heller v DC firmly established that the Second Amendment covers individual rights, consigning the notion of a "collective right" to the intellectual ash heap of history, along with phrenology, eugenics and communism.

 

[Tom Servo]

The notion of a "collective right" in reference to the Second Amendment was a fiction made up by anti gun bigots to twist it to their liking.

Normally, I'd bristle at the use of the word "bigot," but it does apply here.

The notion of a "collective" right to keep and bear arms had its origins in US. v. Miller, a constitutional challenge to the National Firearms Act.

The question at hand was whether or not a restrictive tax on a short-barrel shotgun passed muster. The whole process was a shambles, and it fell to Justice James McReynolds to write the opinion. McReynolds may be the most despised person in the history of the Supreme Court.

He disliked Jews, and refused to acknowledge Louis Brandeis when he was appointed to the court. In fact, McReynolds refused to sit for a picture because he'd have been seated next to Brandeis. He referred to blacks as "darkies." He once called a staffer a whore and fired her for wearing red nail polish. He called Benjamin Cardozo (the first hispanic Justice) as the "son of criminals." He even got banned from a prominent Vanderbilt golf club for being such a hideous human being. Some historians have reason to suspect that Taft nominated him for SCOTUS because McReynolds would have been unendurable in a cabinet position.

He was also incredibly lazy. He wrote as few opinions as possible, and when Miller came around, it was his turn. He dashed off a perfunctory opinion that was not only poorly considered but left us with a disastrous precedent.

Essentially, McReynolds wrote that a short-barrel shotgun has no place in a well-regulated militia. As such, he found that it could be restricted without violating the 2nd Amendment.

From that, gun-control advocates formed the idea that the 2nd Amendment only covered the ownership of weapons as it applies to service in a militia. Thus was born the idea of a "collective" right. The part of the 2A that contains "the right of the people" was conveniently ignored.

It took nearly 70 years to get that fixed. In the Heller decision, the Supreme Court found that we do in fact have a right as individuals to keep and bear arms.

You'll note from the Wikipedia article that neither Miller or his attorney was able to present arguments. The government made their case without opposition. As such, the court appears to have been ignorant of the fact that short-barrel shotguns were widely used to great effect in WWI.

 

[natman]

The notion of a "collective right" in reference to the Second Amendment was a fiction made up by anti gun bigots to twist it to their liking.

Normally, I'd bristle at the use of the word "bigot," but it does apply here.

Bigot is not a word I toss around casually.

bigot [big-uh t] noun
1. a person who is utterly intolerant of any differing creed, belief, or opinion.

http://dictionary.reference.com/browse/bigot?s=t

As you say, it applies here.

The last 50 years have seen amazing changes in how bigotry is tolerated; the changes in attitudes towards racial and homophobic bigotry have been substantial. Attitudes towards gun owners will determine if bigotry has been actually diminished or if it has merely changed targets according to the whims of social fashion.

The notion of a "collective" right to keep and bear arms had its origins in US. v. Miller, a constitutional challenge to the National Firearms Act.

The question at hand was whether or not a restrictive tax on a short-barrel shotgun passed muster. The whole process was a shambles, and it fell to Justice James McReynolds to write the opinion.....

Essentially, McReynolds wrote that a short-barrel shotgun has no place in a well-regulated militia. As such, he found that it could be restricted without violating the 2nd Amendment.

From that, gun-control advocates formed the idea that the 2nd Amendment only covered the ownership of weapons as it applies to service in a militia. Thus was born the idea of a "collective" right. The part of the 2A that contains "the right of the people" was conveniently ignored.

Miller was a spectacularly poorly rendered opinion, but the only thing it addressed was whether the NFA was constitutional. The issue of individual vs. collective right was not addressed at all. Anti gunners claim that Heller "overturned 70 years of established precedent", but that's pure poppycock; the "established precedent" of a "collective right" never existed in the first place. What Heller did was burst the bubble of a cherished 70 year old fantasy.

 

[44 AMP]

Essentially, McReynolds wrote that a short-barrel shotgun has no place in a well-regulated militia. As such, he found that it could be restricted without violating the 2nd Amendment.

Yes, he absolutely did do that. And while I cannot personally verify I have heard that the opinion was "weasel worded", supposedly stating "this court has been presented no evidence that..."

If that wording is the actual language of the decision, he didn't rule the short barrel shotgun had no place, he ruled that he "had not been shown" where the short barrel shotgun had a place, which is a different matter, but identical in practical effect.

Bad ruling on a worse law, and the Heller ruling only corrects part of the damage.

 

[kilimanjaro]

Lots of good discussion. As I understand it, the collective right argument essentially means the 2nd Amendment allows the police and army to keep and bear arms, an absurdly illogical preposition. You or I would only be able to keep and bear arms as a member of one of those groups.

 

[Tom Servo]

And while I cannot personally verify I have heard that the opinion was "weasel worded", supposedly stating "this court has been presented no evidence that..."

The decision is a quick read because it's so perfunctory. Here's the exact wording:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Bryan Frye wrote a very detailed and entertaining history of the case and its circumstances, which can be downloaded here.

Going back to the original question,

What are collective and individual rights?

The Bill of Rights is about individual liberties and restrictions on government behavior. While some of the rights protected by the 1st Amendment can be practiced in a group setting, nobody has issued a credible opinion that one must be part of a group to exercise those rights. Same goes for 4th Amendment protections.

There's really no poetry in the Bill of Rights. It's a very terse listing of things the government can't trample. If the founders meant the RKBA to be limited to militia service, they'd have written something like this:

The power of the states to assemble and equip militias shall not be curtailed by the federal government.

They also wouldn't have stuck it smack in the middle of a bunch of stuff about individual liberties. It's truly astonishing to watch gun-control supporters twist phrasing when the plain language and context are clear.

 

[Aguila Blanca]

There's really no poetry in the Bill of Rights. It's a very terse listing of things the government can't trample. If the founders meant the RKBA to be limited to militia service, they'd have written something like this:

The power of the states to assemble and equip militias shall not be curtailed by the federal government.

They also wouldn't have stuck it smack in the middle of a bunch of stuff about individual liberties. It's truly astonishing to watch gun-control supporters twist phrasing when the plain language and context are clear.

They did exactly that in Massachusetts.

It's interesting to compare how the original thirteen colonies treat the RKBA.

Massachusetts: Collective right (see my post above)


Connecticut: Individual right (see my post above)


Rhode Island: Individual

Section 22. Right to bear arms. -- The right of the people to keep and bear arms shall not be infringed.

Vermont: Individual and collective

Article 16th. Right to bear arms; standing armies; military power subordinate to civil

That the people have a right to bear arms for the defence of themselves and the State - and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

New Hampshire: Individual and collective

[Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

Pennsylvania: Individual and collective

Right to Bear Arms
Section 21

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

New York: New York is interesting. The first state constitution did not include a bill of rights (1777). The second state constitution, 1821, did. It provided as follows:

Article V, § 5. [Militia to be maintained; who may be excused from service.]—The militia of this state shall at all times hereafter, be armed and disciplined, aid in readiness for service; but all such inhabitants of this state, of any religious denomination whatever, as from scruples of conscience may be averse to bearing arms, shall be excused therefrom by paying to the state an equivalent in money; and the legislature shall provide, by law, for the collection of such equivalent, to be estimated according to the expense, in time and money, of an ordinary able-bodied militia-man.

There is no other reference to a RKBA. This looks a lot like a collective right -- except that Article IV of the state constitution goes into great detail about how officers of the militia are elected by the members of the respective companies, regiments and brigades -- suggesting that the intention was for all citizens (other than those with religious scruples) were to be armed and be members of the militia. However ...

That was 1821. The NY state constitution has since been revised several times. The third NY state constitution (1846) included a bill of rights -- and no mention of either a militia or a RKBA). The present-day constitution likewise does not mention the militia or the RKBA.


New Jersey: Similar to New York. The first New Jersey state constitution dates to 1776, and seems to accept as a pre-existing fact the existence of the militia. There is no bill of rights, only a section on the election of officers in the militia:

X. That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the Council and Assembly.

The next NJ state constitution was dated 1844. This constitution included a bill of rights. It does not make any mention of the militia or the RKBA. The current NJ state constitution dates to 1947, with subsequent amendments. Like the 1844 version, the current version makes no mention of the militia or the RKBA.


Delaware: Individual and collective.

Article 1 § 20. Right to keep and bear arms.

Section 20. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Maryland: First 1776. Second 1851. Third 1864. Fourth (and current, with amendments through 2014) 1867. Fourth version includes a bill of rights. Militia is still mentioned (collective RKBA):

Art. 28. That a well regulated Militia is the proper and natural defence of a free Government.

This is unchanged from the original 1776 state constitution. There is no mention of a RKBA.


Virginia: First constitution was adopted in 1776 and included a bill of rights. The BOR mentions the militia but does not address an individual RKBA. [This was, at the time, apparently implicit in the discussion of the milita, since the militia was comprised entirely of armed citizens.]

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The current constitution dates to 1971, with amendments through 2013. The bill or rights appears to provide for both an individual and collective RKBA:

Section 13. Militia; standing armies; military subordinate to civil power.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

North Carolina: Includes a bill of rights. RKBA is a collective right

XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.

South Carolina: Includes a bill of rights. RKBA similar to U.S. Constitution:

SECTION 20. Right to keep and bear arms; armies; military power subordinate to civil authority; how soldiers quartered.

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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in the manner prescribed by law. (1970 (56) 2684; 1971 (57) 315.)

 

[raimius]

Aguila, while Mass. has certainly interpreted that portion of its BoR as "collective," I see nothing in the text that necessarily limits the right to a collective one.

That said, I feel "collective rights" is a bit of an oxymoron. If a group has a right, but each individual of that group lacks the right...who actually has that right? If your family gets a million dollars, but none of you can cash out at the bank, did you really get any money?

 

[Aguila Blanca]

Aguila, while Mass. has certainly interpreted that portion of its BoR as "collective," I see nothing in the text that necessarily limits the right to a collective one.

There is also nothing in the text to guarantee any RKBA other than in defense of the state.

I'm neither an attorney nor a legal scholar, just a guy who graduated from high school long enough ago that we were taught to read before we were allowed to graduate.

The concept of the "collective right" may be a modern construct. The reason I cited portions of the constitutions of all thirteen of the original states was to show how each addressed the RKBA differently -- or not at all. But when looked at in the context of the period when those constitutions were originally written, there was no permanent, federal standing army, and there was no national guard. There were the militias, and the militias were comprised of armed citizens who (generally) provided their own firearms. So it can be argued that a statement that the people have a right to bear arms in defense of the state was a statement affirming the right of the people to maintain arms. But -- why, then, did some other states make it clear that the RKBA applied not only to defense of the state but also to defense of the self and the family?

I don't know -- I wasn't there. Certainly, the language of those constitutions that only affirm a right to bear arms in defense of the state may imply a right to "keep" arms (although it could also mean that the arms were to be kept in the local armory), but that the right to "bear" arms applied only to when called upon to defend the state. That's the way such language is being viewed today, and I suppose today it is also being interpreted to mean joining the National Guard if you wish to exercise your "right" to bear arms in defense of the state.

I dunno -- my only points were (a) to demonstrate the difference in language between an individual right and a collective right, and (b) to show how the language regarding the RKBA differed even among the original thirteen states/colonies.

 

[rwilson452]

PA is another state that has the right to bear arms as an individual right to protect themselves and the state. I was given to understand that the article in the PA constitution was one of the first things that was considered for the 2nd in the US constitution but as usual they just had to tinker with it. I also read that the 2nd was almost the third but the one before it was not adopted by the states. Someday maybe I will research that and see what I can find.

 

[Seamaster]

Vermont was the 14th State to join the Union. March 4, 1791.

 

[44 AMP]

A couple of points to consider, our natural rights (aka God given rights) are NOT just those enumerated in our national and state constitutions.

Indeed, some group or other seems to be discovering new rights all the time.

And, while a lack of specific mention means there is no automatic recognition, it is NOT a pre-emption.

A state constitution may not mention an individual right, but by the same token, it does not FORBID it, either.

Throughout the bill of rights, the phrase "the people" is understood to mean each of the people, as individuals.

The idea that ONE, and ONLY ONE of the enumerated rights does NOT refer to the individual, and only to a collective group is false, although it has taken a long time, and a lot of effort to finally get a ruling stating that it is an individual right, independent of the group right (which ALSO exists).

 

[Aguila Blanca]

And, while a lack of specific mention means there is no automatic recognition, it is NOT a pre-emption.

A state constitution may not mention an individual right, but by the same token, it does not FORBID it, either.

True. But if a constitution's bill of rights doesn't specifically mention a particular right, that constitution doesn't guarantee that particular right.

Throughout the bill of rights, the phrase "the people" is understood to mean each of the people, as individuals.

Also true. But you are basing your argument (it appears) on the language of the U.S. Constitution and the Second Amendment. The Massachusetts constitution uses the word "people," but on its face it only guarantees the right of the people to bear arms in defense of the state -- i.e. a collective right, not an individual right.

"The people have a right to keep and to bear arms for the common defence ..."

The idea that ONE, and ONLY ONE of the enumerated rights does NOT refer to the individual, and only to a collective group is false, although it has taken a long time, and a lot of effort to finally get a ruling stating that it is an individual right, independent of the group right (which ALSO exists).

Again, you seem to be looking at the U.S. Constitution. The Massachusetts state constitution does refer to the people, and in the matter of bearing arms it addresses "the people" only in the context of defending the state -- which sounds a lot like a collective right, and an oblique reference to a militia service qualifier.

 

[BlueTrain]

I would imagine that our so-called natural (as opposed to unnatural) God-given rights are whatever we say they are, there being no reference point for any of them. But referring to the 2nd Amendment, there is no reference to the police or the army, at least as I read it. There was no real concept as we imagine it of police in the 18th century and the army was covered in the constitution itself.

Last week was Constitution Week, by the way, and I happened to attend a naturalization ceremony.

What the 2nd Amendment does mention is the militia, which is serious doubt was intended for the purpose of overthrowing the elected government, any of them, there being many. The militia was also an assumed and pre-existing government-managed entity. Just as there was a fear of a standing army (sitting in your house), there seems to have been a fear of private armies, according to George Mason. I have no idea why that was a concern at the time, however.

Assuming that the word militia in the constitution means "militia," the code of Virginia neatly and concisely defines the militia and the age limits thereof. Sadly, I am over the age limit, and even above the "special exception" limit. Basically, contrary to some opinions, the militia does not legally mean "everyone."

 

[g.willikers]

From better minds than mine:
Since there is no such thing in nature as a collective, but there definitely are individuals, there can only be individual rights.
A collective, a group, and other similar concepts, are abstractions used to define individuals sharing common interests.
Nothing more.

 

[BlueTrain]

Here is, I think, an example of the difference between collective and individual rights.

"The people" have the right to form a government and to elect the officials in the government. I don't think that right comes from God. We invented it, though not without precedent. In some countries even kings were elected, although not many got to vote for the king, to be sure.

However, it does not follow that any of us as individuals have a right to vote. That isn't even mentioned in the original constitution, is it? Who can vote was determined at state level but the whole concept of voting existed long before the revolution in this country. But not many people could actually vote in any event, probably in some places as little as 25%, perhaps less, could vote. Quite possibly the militia rolls were the same people, perhaps less.

 

[Tom Servo]

However, it does not follow that any of us as individuals have a right to vote. That isn't even mentioned in the original constitution, is it?

Certain rights are defined as natural rights, while others are considered political rights.

The former are considered to be basic, unalienable rights afforded to all people. Those are protected by the Bill of Rights, and they extend to anyone on American soil. Natural rights include freedom of worship and speech, self defense, and the sanctity of property. These are considered to exist irrespective of a document or political system.

Political rights are granted by a legal system or government. They include things like voting or running for political office.

A fair and just government should respect both categories, but it was vitally important to the founders that natural rights receive the utmost protection.