Collective Right

This is a discussion on Collective Right within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; This is one of the best arguments I have read espousing that the intent of the Second is a collective, rather than an individual right. ...

Results 1 to 14 of 14

Thread: Collective Right

  1. #1
    Restricted Member Array SelfDefense's Avatar
    Join Date
    May 2007
    Location
    Tucson
    Posts
    2,736

    Collective Right

    This is one of the best arguments I have read espousing that the intent of the Second is a collective, rather than an individual right.

    http://www.saf.org/LawReviews/FinkelmanChicago.htm

    However, when push comes to shove (towards the end, if you get that far) he begins to ramble and allow his bias to intrude on his thesis.

    The essay is pretty convincing on the Constitutional level. It does bring up the very relevant point that the individual ownership is not necessarily addressed nor of concern to the Founders.

    In every discussion of the individual right to bear arms it is necessary to elect those who will not enact legislation that erodes our ability to defend ourselves.

    On a side note, it is interesting that we mostly identify the Founders as being agreement with our fundamental Republic, though there was a distinct difference, in fact animous, among those Patriots. In today's society, the difference would be libertarians versus Republicans. Wouldn't the United States be a better nation today if that was the primary struggle rather than the seemingly endless fight against socialistic liberals?

  2. Remove Ads

  3. #2
    VIP Member Array peacefuljeffrey's Avatar
    Join Date
    Oct 2006
    Location
    south Florida
    Posts
    3,168
    Quote Originally Posted by SelfDefense View Post
    This is one of the best arguments I have read espousing that the intent of the Second is a collective, rather than an individual right.
    When you implied that it was long, I didn't know you meant that long. It's 2:30 a.m., and I'm not going digging through that much verbiage to find the pith of his "collective rights" argument.

    I will, however, go on record that I think any and all collective rights arguments are BUNK, in light of what we understand about the Bill of Rights, to wit: it is a list (by no means complete and final) of rights of THE PEOPLE, and has NOTHING to do with rights retained by the government, or by any state or federal agency or entity.

    That should be plain and simple enough. You can't possibly argue that the STATE has a "RIGHT" protected under the Bill of Rights. So there goes the "collective rights" argument right there. Besides which, how can a bunch of people collectively own guns without each of them individually owning guns?

    There are many many contemporary writings penned by the Founders in which they make clear that individual ownership of arms deters not only tyranny, but also criminal predation. So it was clearly not only militia-v.-standing army that they were concerned about.

    However, when push comes to shove (towards the end, if you get that far) he begins to ramble and allow his bias to intrude on his thesis.
    "Ramble" does not even begin to describe that interminable tome.

    The essay is pretty convincing on the Constitutional level. It does bring up the very relevant point that the individual ownership is not necessarily addressed nor of concern to the Founders.
    V.S. (see above)
    How can you say that the Founders did not concern themselves with individual ownership? There are many examples of them doing just that. What about that T. Jefferson quote about how laws forbidding the use of arms encourage the criminal and make people into easy victims?

    And how can you say that a "collective rights" interpretation of the 2nd Amendment is "convincing on the Constitutional level" without utterly ignoring the fact that ONLY INDIVIDUAL RIGHTS are addressed in the Bill of Rights?

    In every discussion of the individual right to bear arms it is necessary to elect those who will not enact legislation that erodes our ability to defend ourselves.
    But you said that the Constitution wasn't addressing our ability to defend ourselves... So here you seem to be arguing that we must guard against electing those who would threaten a right that you also say is not what the Founders sought to guarantee...

  4. #3
    VIP Member Array ccw9mm's Avatar
    Join Date
    Jul 2006
    Location
    USA
    Posts
    26,525
    I have never understood the fundamental criterion that distinguishes a "collective" right from an individual one. At the core, either a person has the right to speak, associate, petition for redress of grievances, and defend one's own life (at the point of a gun, if need be) ... or, one does not. My town's "collective" right to protect itself matters not one whit if I, myself, am deprived by my peers of the right to defend myself. No right effectively exists, if denied at the individual level. Ask anyone raped or mugged in the District Of Columbia for a suitable opinion, if that seems a foggy distinction.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, SAF, GOA, OFF, ACLDN.

  5. #4
    Member Array joffe's Avatar
    Join Date
    Aug 2007
    Location
    Norway
    Posts
    165
    The Second Amendment is written in a vague, old form of English, which is unfortunate and allows antis to argue this.

    Thankfully, many state constitutions affirm the individual right to own and carry firearms in very clear, modern undisputable language. Get to know if you live in a state where the state constitution is either as strong or stronger on individual rights as the federal constitution is. That way you can counter the anti shills with that if they bring up the 'collective right' BS.

  6. #5
    Senior Member Array press1280's Avatar
    Join Date
    Sep 2007
    Location
    WV
    Posts
    750
    I can't even see how this can be argued. The framers were very careful NOT to be vague,but I guess anything can be twisted. Who is the militia? Everyone(not government). It's not the military(why would the 2nd amendment say our military has the right to keep and bear arms?) Obviously they would! The Bill of Rights are all individual rights,so again,what is a "collective" right?

  7. #6
    VIP Member
    Array OPFOR's Avatar
    Join Date
    Dec 2006
    Location
    Nomad
    Posts
    4,713
    ...the Bill of Rights...is a list...of rights of THE PEOPLE, and has NOTHING to do with rights retained by the government, or by any state or federal agency or entity.
    While I completely disagree with the 2A being a collective right, I must say that the BOR does, in fact, have something to do with entities other than "the people."

    The tenth amendment, specifically, states that those powers not explicitly granted to the federal government "are reserved to the states respectively, or to the people."

    Many of the founders were strong supporters of States rights, and the ability of the individual states to control their own destinies to a large degree. The feds have slowly but surely eroded those "state" rights along with the individual ones (and the "collective right" argument is just another example of this erosion), but lets not make the BOR to be something that it is not.
    A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.

  8. #7
    Restricted Member Array SelfDefense's Avatar
    Join Date
    May 2007
    Location
    Tucson
    Posts
    2,736
    Quote Originally Posted by joffe View Post
    The Second Amendment is written in a vague, old form of English, which is unfortunate and allows antis to argue this.

    Thankfully, many state constitutions affirm the individual right to own and carry firearms in very clear, modern undisputable language. Get to know if you live in a state where the state constitution is either as strong or stronger on individual rights as the federal constitution is. That way you can counter the anti shills with that if they bring up the 'collective right' BS.
    Indeed!

    Arizona State Constitution, Arcticle 2, Section 26:

    The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.


  9. #8
    Senior Moderator
    Array MattInFla's Avatar
    Join Date
    Nov 2005
    Location
    Central Florida
    Posts
    4,857
    Hmmm.

    "The people" secures individual rights in the First Amendment.
    "The people" secured individual rights in the Fourth Amendment.

    But somehow, in the Second Amendment, "The people" refers to the states.....

    The argument is just silly on it's face.

    Matt
    Battle Plan (n) - a list of things that aren't going to happen if you are attacked.
    Blame it on Sixto - now that is a viable plan.

  10. #9
    Restricted Member Array SelfDefense's Avatar
    Join Date
    May 2007
    Location
    Tucson
    Posts
    2,736
    Quote Originally Posted by peacefuljeffrey View Post
    When you implied that it was long, I didn't know you meant that long. It's 2:30 a.m., and I'm not going digging through that much verbiage to find the pith of his "collective rights" argument.
    The argument was based on historical context and the disagreement and compromises of the Federalists and antifederalists.

    You can't possibly argue that the STATE has a "RIGHT" protected under the Bill of Rights. So there goes the "collective rights" argument right there. Besides which, how can a bunch of people collectively own guns without each of them individually owning guns?
    The Tenth Amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.

    The States do indeed have rights under the Bill of Rights.

    I absolutely agree with your last sentence. The collective argument, in no way, allows gun grabbers to confiscate individual arms ownership. The entire argument is a red herring, even if you agree with the collective right conclusion.

    "Ramble" does not even begin to describe that interminable tome.
    And I didn't even have a scroll bar to gice me a clue how long it was!

    How can you say that the Founders did not concern themselves with individual ownership? There are many examples of them doing just that. What about that T. Jefferson quote about how laws forbidding the use of arms encourage the criminal and make people into easy victims?
    Jefferson was an antifederalist.

    And how can you say that a "collective rights" interpretation of the 2nd Amendment is "convincing on the Constitutional level" without utterly ignoring the fact that ONLY INDIVIDUAL RIGHTS are addressed in the Bill of Rights?
    I meant to write that it was an argument based on Constitutional history, rather than the parsing of the language, which is often done.

    But you said that the Constitution wasn't addressing our ability to defend ourselves... So here you seem to be arguing that we must guard against electing those who would threaten a right that you also say is not what the Founders sought to guarantee...
    Correct. The Constitution was written to outline a formal government. It was never intended to be a lifestyle guide. It is none of the Federal government's business how I choose to defend myself, or speak, or choose a religion. The Amendments were put in to appease the antifederalsits, who were afraid the Federal government would deprive them of their rights.

    And, over 225 years later they are trying to do exactly that. But that was not the intent.
    Last edited by SelfDefense; October 16th, 2007 at 09:40 AM. Reason: fix quote

  11. #10
    Distinguished Member Array Bob The Great's Avatar
    Join Date
    Sep 2006
    Location
    Slidell, LA
    Posts
    1,688
    I'll have to read through this (long and boring though it may be). I have doubts that I'll come across any new argument or arguments that haven't already been debunked.

    The key to determining the meaning of the second amendment really is the words "the people". No matter what historical or linguistic athletics you go through, there is no way around the simple fact that "the people" of the second amendment are the same "the people" as in the fourth amendment, which clearly and unmistakably means individuals. "The people" are also shown as distinctly different than "the states" in the tenth amendment.

    Until someone finds a way to redefine "the people", the 2A will mean what it says. And god forbid that days comes, when the 1st, 2nd, 4th, 5th, 6th, 9th, and 10th amendments are defined as inapplicable to individuals (though it's already starting to happen).
    "A well-educated electorate, being necessary to the continuance of a free state, the right of the people to keep and read books shall not be infringed."
    Is this hard to understand? Then why does it get unintelligible to some people when 5 little words are changed?

  12. #11
    VIP Member Array BigEFan's Avatar
    Join Date
    Aug 2007
    Location
    Central California
    Posts
    2,045
    Quote Originally Posted by OPFOR View Post
    While I completely disagree with the 2A being a collective right, I must say that the BOR does, in fact, have something to do with entities other than "the people."

    The tenth amendment, specifically, states that those powers not explicitly granted to the federal government "are reserved to the states respectively, or to the people."

    Many of the founders were strong supporters of States rights, and the ability of the individual states to control their own destinies to a large degree. The feds have slowly but surely eroded those "state" rights along with the individual ones (and the "collective right" argument is just another example of this erosion), but lets not make the BOR to be something that it is not.
    I knew a fellow constitutionalist should have already brought this item to light.

    Bravo OPFOR!!!
    Lex et Libertas Semper Vigilo, Fortis, Paratus, et Fidelis!

    "Not only do the people who put their lives on the line to protect the rest of us deserve better, we all deserve better than to have our own security undermined by those who undermine law enforcement." -Thomas Sowell

  13. #12
    VIP Member Array packinnova's Avatar
    Join Date
    Jun 2006
    Location
    VA
    Posts
    4,254
    Well, I'm of the opinion that there is no such thing as a "collective" right. ANY collective right. All rights are for the Individual. There are no rights granted by any piece of paper, and they all preexisted all paper.
    "My God David, We're a Civilized society."

    "Sure, As long as the machines are workin' and you can call 911. But you take those things away, you throw people in the dark, and you scare the crap out of them; no more rules...You'll see how primitive they can get."
    -The Mist (2007)

  14. #13
    Member Array RTC1911's Avatar
    Join Date
    Mar 2007
    Location
    Florida
    Posts
    42
    Responders here seem to be forgetting two key points:

    Nowhere in the Constitution are "Rights" ever granted to the State or federal Govt. "Rights" are granted only to the People. Only "Power" or "Authority" is ever granted to State or Federal governments. The clear distinnction is made between "Rights" and "Power" or "Authority" for a specific and definitive reason, termed and called and separated as such.

    Anyone conducting even a cursory review of the Federalist Papers could not help but to notice the explicit recorded history and verbiage of the impassioned debates of the Founding Fathers. Approximately one-half of the States' Delegates opposed ratification of the finalized but unratified version of the US Constitution Document because they felt it did not adequately address citizen's rights. This is what led to the adoption and ratification of the first ten Amendments to our constitution, collectively known as our Bill Of Rights, with James Madison being the major "mover & shaker" concerning the Bill Of Rights. The Founding fathers made it quite clear that our Bill Of Rights list God-given "Inalienable Rights" equally possessed by all free men, which pre-existed and predated the drafting of our Constitution. They also made it equally clear that the the right to lawful self-defense and the 2nd Amendement in our Bill of Rights is neither "granted by" or even "dependent upon" our Constitution, and that it is, instead, a preexistent right which our Constitution and Bill of Rights merely restates and re-affirms.

    It's a fallacy and commonly-held misconception that the US Supreme Coirt, Court of Appeals, the highest court in our kand, has never ruled on the legitimacy of the 2nd Amendement being an individual citizens' right as opposed to a collective State's "right". They have in fact ruled on the matter no less than 37 times. They simply have declined to entertain and hear a case where 2nd Amendment "individual rights" was the primary thrust and issue of the matter brought to bar. They have ruled on it where individual rights arose as an incidental matter secondary to the primary issue at bar. Granted, the "individual right" interpretation versus the 'collective right" interpretation has not always been the unanimous concensus, but the justices have ruled in favor the "Standard Model" individual-right interpretation in the vast majority of the 37 caseslaw decisions that I have have seen assembled by accredited constitutional scholars.

    An additional and very sound ruling in favor of the individual right was recently affirmed and upheld in the recent US Supreme Court caselaw decision overturning the Washington DC handgun ban as unconstitutional. In said ruling, the majority Justice's decision specifically ruled that they consider the 2nd Amendment to pertain to an individual's right to keep and bear arms.

    Of course, the municipal powers that be in Washington DC are appealing that decision to the Court of Appeals. So that's a case we'd best be monitoring very closely, perhaps with an enhanced level of support for our NRA-ILA watchdogs and their very beneficial "Friend-Of-The-Court" Briefs filings.
    "He who allows another to take his life, who hath no authority for that purpose, when it might be preserved by defense, is guilty of Self-Murder, for God hath enjoined him to seek the continuance of his Life, and Mother Nature teaches every creature to defend itself".

  15. #14
    Senior Member Array Sergeant Mac's Avatar
    Join Date
    May 2007
    Location
    Nebraska
    Posts
    783
    Quote Originally Posted by RTC1911 View Post
    Responders here seem to be forgetting two key points:

    Nowhere in the Constitution are "Rights" ever granted to the State or federal Govt. "Rights" are granted only to the People. Only "Power" or "Authority" is ever granted to State or Federal governments. The clear distinnction is made between "Rights" and "Power" or "Authority" for a specific and definitive reason, termed and called and separated as such.
    One minor, nitpicky point:

    The Constitution "grants" no rights whatsoever.

    It merely specifies unequivocally which PRE-EXISTING rights are NEVER allowed to be infringed by government.

    Furthermore, no collective (no matter what it might call itself, or how large it might be) may ever grant "rights", only "privileges".

    Rights are yours naturally, as the logical extension of self-ownership. Life, liberty, justly acquired property.

    Privileges, on the other hand, must be bestowed upon you by the magnanimous hand of some "other" who presumably possesses authority over them.
    Last edited by Sergeant Mac; November 11th, 2007 at 08:28 PM. Reason: OOPS! Should have read beyond the eye-rolling point

Links

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

Similar Threads

  1. I have been assimilated into the collective...
    By SteveInWV in forum Defensive Carry Guns
    Replies: 14
    Last Post: July 18th, 2010, 02:24 AM
  2. Collective Nouns, Fun With Words.
    By GunnyBunny in forum Off Topic & Humor Discussion
    Replies: 9
    Last Post: April 20th, 2010, 03:34 PM