General Discussion
In reply to the discussion: The central right identified in the Heller decision is [View all]dairydog91
(951 posts)Heller did not reverse 200 years of history. For example, look at the infamous Dred Scott (1857), in which the majority held that people of African descent could not be citizens of the United States and thus lacked Constitutional rights. In its opinion, the majority commented that if African-Americans were citizens of the United States, they would automatically possess Constitutional rights, including the rights "...to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
As far as I can tell, the supposed "200 years" actually only goes back to Miller, a 1939 decision. Even that is highly debatable; it does not openly state that the right is collective as opposed to individual. What it does say, rather specifically, is:
"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."
Furthermore, McReynolds commented that:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
Far from being a clearcut decision in favor of collective rights theory, Miller could very easily be read to mean that the right is individual, but does not protect the right to possess exotic weapons which would have no use if the owner was called up into an irregular militia.