Three dozen Supreme Court cases touched on the Second Amendment to varying degrees before Heller, and literally none of them validated “collective right. ” Their most thorough review is here, but the average person can’t be expected to read 90 pages of detailed legal analysis—especially not those who can’t psychologically risk finding out that supposed “conservatives” are correct about something. A more open-minded audience is here now, however, and the focus is on only the most critical parts of the two most relevant decisions.

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US v. Cruikshank was the first Supreme Court case ever to directly address the meaning of the Second Amendment, and nothing exposes the cringeworthy desperation of “collective right” advocates better than the way Justice John Paul Stevens handled it in his Heller dissent. Heller was the last chance for their greatest minds to come together and defend their position at the highest level, so the arguments put forth by Stevens are the best they’ve got. Cruikshank related to charges, including violation of the Second Amendment, filed in relation to an attack armed Blacks who had banded together as a private militia—victims who, significantly, are referred to in the indictment only as “citizens.” As noted by Stevens,

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the Court wrote ‘The right there specified [in the indictment] is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed;’​

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Rearranging the excerpt in a way that retains 100% of its original meaning, the Cruikshank Court expressed its belief that “The Second Amendment declares that the right of ‘bearing arms for a lawful purpose’ shall not be infringed.” This is clear to any unbiased person with a grasp of logic and grammar, but Stevens argues,

 

The majority’s assertion that the Court in Cruikshank ‘described the right protected by the Second Amendment as “bearing arms for a lawful purpose,”’ is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right.

 

The Cruikshank Court, however, absolutely did “endorse the indictment’s description of the right” by assuming that description in its own commentary. As for the meaning of “lawful purpose,” the only other appearance of this phrase in the dissent is a reference to “self-defense, recreation, and other lawful purposes.” Stevens understood logic and grammar perfectly well, but he chose to reject reality for ideology. He likewise continues,

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Moreover, it is entirely possible that the basis for the indictment’s counts 2 and 10, which charged respondents with depriving the victims of rights secured by the Second Amendment, was the prosecutor’s belief that the victims…bore sufficient resemblance to members of a state militia that they were brought within the reach of the Second Amendment.

 

It’s “entirely possible” that the US attorney general completely failed to make what would have been—had “collective right” actually existed—the key argument in support of Second Amendment-based charges? He instead chose to weaken his own case by referencing the disarmed parties as ordinary civilians? That contention is so ludicrous it’s hard to imagine Stevens himself believed it. This actually seems quite likely, as he later admitted that his dissent was not based in fact or law when recounting his effort to persuade swing-vote Justice Anthony Kennedy: “All could foresee the negative consequences of the decision…I now realize that I failed to emphasize sufficiently the human aspects of the issue…” He never laments his deficiency in explaining some piece of evidence, only his failure to exert enough emotional manipulation.

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Now that we’ve seen the Supreme Court’s response when it was first asked about the meaning of the Second Amendment, in the interest of brevity let’s jump to its final word before Heller supposedly overturned decades of “collective right” precedent. Penned by James Clark McReynolds, one of the worst justices of all time, the opinion in US v. Miller (1939) is most significant for what it doesn’t say. Two career criminals with no prospect of military service were charged with transporting a weapon restricted by the National Firearms Act, so a “collective right” ruling would have simply stated that the Second Amendment did not protect them at all, as the government urged: ​​

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The very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The ‘arms’ referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment.​​​​

 

The government quite notably didn’t claim that the “collective right” portion of its argument was supported by any precedent, and the Miller Court itself endorsed only the second part:

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In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. (citing Aymette v. State of Tennessee)​​​​​​​

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​McReynolds goes on to say that the Founding-era conception of the militia was “all males physically capable of acting in concert for the common defense” and a “body of citizens enrolled for military discipline,” detailing how these were one and the same back when service was compulsory. That was no longer the case in 1939, but the ruling strongly implies that the civilian defendants would nevertheless have been protected by the Second Amendment if they possessed a weapon that was “part of the ordinary military equipment”—i.e., a “weapon of war.” It's thus truly fascinating to witness gun control extremists cry about this decision being overturned by Heller, in which the “absolutists” went out of their way to emphasize that machineguns (styled as a single word in US law) could be restricted anyway.

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But is it true that prior cases “unanimously hold that weapons peculiarly adaptable to use by criminals” are not protected? No, and if Miller is good for anything, it’s to highlight that such weapons don’t even exist. It’s absurd to believe that a shotgun with a 17.9” barrel is useless in the hands of a soldier (or home defender) while being especially dangerous in the hands of a criminal, but McReynolds was free to assume this because the defense didn’t present an argument—apparently because the lawyer wasn’t paid (p. 67). He may or may not have found evidence of short barrel shotguns being used in war, but regardless he probably would have pointed out the inanity of the government brief’s speculation that Congress passed the National Firearms Act 

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to discourage, except for military and law-enforcement purposes, the traffic in and utilization of the weapons to which the Act refers. But it is also indisputable that Congress was striking not at weapons intended for legitimate use but at weapons which form the arsenal of the gangster and the desperado. military equipment or that its use could contribute to the common defense. (citing Aymette v. State of Tennessee)​​​​​

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That’s right! Certain weapons are not “part of the ordinary military equipment” because they’re exclusively for “the gangster and the desperado,” but they must be allowed for “military and law-enforcement purposes”—but definitely not for individual self-defense. 

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If there had been any halfway competent defense attorney present, they surely would have also shredded the lone, solitary case Miller cited to support its holding. Aymette v. State (1840) was a Tennessee Supreme Court ruling that addressed public carry under a state constitution declaring that “free white men” had a right to bear arms for “common defence,” and thus should never have been used to interpret the Second Amendment in the first place. The type of weapon at issue, a Bowie knife, was used in the Texas War of Independence that had ended four years before Aymette. It later saw action in the Mexican-American War, Civil War, Spanish-American War, and both World Wars, but the court upheld the defendant’s conviction on the grounds that such a weapon was “useless in war” and “efficient only in the hands of the robber and the assassin.”

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Moreover, an 1833 decision by the same court ruled that “an express power is given and secured to all the free citizens of the State to keep and bear arms for their defence, without any qualification whatever as to their kind or nature,” but the Aymette court dismissed this as “only an incidental remark of the judge who delivered the opinion, and, therefore…entitled to no weight.” This would be bad enough in any event, but it’s worth noting that one of the justices who joined the earlier opinion later served on the US Supreme Court, while none of those who participated in Aymette ever held any federal position.

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Aymette also heavily relies on a strawman argument that demonstrates what happens when government officials fail to (or pretend not to) understand the distinction between a right’s exercise and its abuse:

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Suppose it were to suit the whim of a set of ruffians to enter the theatre in the midst of the performance, with drawn swords…to the terror of the audience; and this were to become habitual; can it be, that it would be beyond the power of the legislature to pass laws to remedy such an evil?​​

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If Tennessee couldn’t prevent its citizens from peacefully possessing a sharp piece of metal, according to three nobodies who somehow managed to become judges there in 1840, then it was also unable to prosecute those who commit aggression and terrorism. Just sickeningly moronic. Aymette is a steaming pile of garbage from start to finish, and by way of Miller’s exclusive reliance on it, it serves as the foundation for all civilian arms control from 1939 until 2008. But the truly crazy part is that Miller, as flawed as it is for baselessly holding that the Second Amendment protects only “weapons of war,” never implied that such protection was limited to actively enrolled militia members—and more amazing still, this case’s holding is now turned on its head to argue that it is only “weapons of war” which can be banned.

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Finally, no discussion of the Second Amendment and the Supreme Court would be complete without mentioning Warren Burger. Gun control extremists really drop the ball in relying only on him as proof that “even conservatives believe in ‘collective right,’” as they have a much stronger right-wing ally in Robert Bork. Bork was so conservative that his nomination to the Court was blocked, but he believed the Second Amendment’s “intent was to guarantee the right of states to form militia, not for individuals to bear arms.” and that “the Supreme Court has consistently ruled that there is no individual right to own a firearm.” Once again, this isn’t an inherently partisan issue. Democrats and Republicans have been helping each other turn it into one for their own benefit, and it’s long past time for Americans to realize this.