Gun Control & RKBA
In reply to the discussion: Replacing white people to kill gun rights [View all]jimmy the one
(2,717 posts)surf guru: Regarding Miller, it does not support the collective right model.
SCOTUS has never embraced or endorsed any permutation of any collective right theory
1939 Supreme Court certainly did endorse a collective/militia interpretation of 2ndA. It was a unanimous decision, while heller split 5-4 with liberal dissent & a rightwing majority.
I'll ask you to read again the 1939 supreme court endorsement:
-- The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
-- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The 1939 Miller decision was 8-0 unanimous; if they had thought it an individual rkba disconnected from militia you'd think at least one justice would've piped up 'whoa fellow justices, look how we wrote that paragraph, future generations will think we gave 2nd amendment the militia interpretation'. Yet not one did, they all thought it correct as written.
surf guru: Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.
Though vague & ambiguous, even if so your remark comports with the militia centric view (presuming your use of 'excluded' does not imply a total 2ndA disconnect from militia as per scalia). People could own guns & use them for self defense outside of militia, that's militia centric.
Note also that by this time the dichotomy between individual & militia interpretations of course existed.
US v. Cruikshank.. in 1876 the Court ruled that {2ndA} served only to protect the states against the federal govt. Because the states in 1787 were worried that a too-powerful federal govt might trample their rights, the Court said, {2ndA} was added to the Constitution guaranteeing their right to maintain militias. {2ndA} did not, in this interpretation, provide any individual right to keep and bear arms; it only guaranteed a state's right to maintain a militia. Moreover, since these militias were to be "well regulated," and since {2ndA}was aimed only at the threat posed by the federal govt, state govts wereaccording to this rulingfree to regulate guns in any manner they saw fit. http://www.shmoop.com/right-to-bear-arms/united-states-v-cruikshank.html
One of the critical holdings within the Cruikshank case was affirmed a decade later in Presser v. Illinois. This case stemmed from the arrest of a man named Herman Presser, who had organized military-style drills to train his own private militia of German-American workers, with the aim of fighting back against the armed security forces often hired by industrial employers. The state argued that this sort of private militia was dangerous and illegal; Presser argued that it was protected by {2ndA}. The Court ruled that the {2ndA} only restricted the federal govt; it was not a prohibition against state action and therefore Illinois could regulate private militia. The {2ndA} the Court ruled, did not give Herman Presser the right to run his own private army.