Supreme Court Gun-Ban Ruling Buries “Collective Rights” Theory

Yesterday, the Supreme Court struck down the District of Columbia’s gun ban in a 5-to-4 vote in District of Columbia v. Heller.  What was most interesting about the decision was that all 9 Supreme Court justices, including even the dissenters, admitted that the so-called “collective rights” theory, long taught in law schools, is bunk. 

The collective rights theory, embraced by many lower courts and liberal lawyers, says that the Second Amendment only protects the “collective right” of state militias to possess guns, not the right of any individual to own a gun.  (Even though any such “collective right” would be meaningless and unenforceable against the federal government, since state militias are subject to federal control under the Supreme Court’s Perpich decision).

But even Justice Stevens’ dissent (which was joined in by the other 3 dissenting justices) admits that the collective-rights theory, which was initially the cornerstone of the District’s defense of its gun ban, is pure bunk.   His dissent begins with the following opening lines: “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’  Surely it protects a right that can be enforced by individuals.  But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.”

Ironically, liberal editorialists are now attacking the Supreme Court’s majority (which struck down the ban) for making the exact same point conceded even by the dissenters — that the Second Amendment protects individual rights, not just a collective right. 

Similarly, the ACLU criticizes the court for not treating the right to bear arms as a “collective right” enjoyed only by state militia “rather than an individual right to possess guns,” and for creating a “constitutional straitjacket” for gun regulations (even though the Supreme Court went out of its way in its decision to emphasize that the Second Amendment does not ban all gun regulations, citing examples of reasonable regulations such as bans on felons possessing firearms).

It is a testament to the skill of the lawyers challenging the gun ban, like Alan Gura and Bob Levy, that they managed to get all nine Supreme Court justices, even the dissenters, to acknowledge the falsity of the collective-rights theory of the Second Amendment, which had long been taught unquestioned as the incontrovertible truth in the nation’s law schools, by the liberal law professors who predominate there.