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YES, Gun Ownership IS an Individual Right. Eugene Volokh

Captain Adverse

Captain Adverse

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Is Gun ownership a Right?

The question is properly answer by Prof. Eugene Volokh, Professor of Law at UCLA and a scholar of the Second Amendment.



Believe it or not, he used to think it was a collective right tied to the Militia as well.

That until (like myself) he did his proper research on the subject and discovered it was, in fact, an Individual right.

Listen to his summary on the topic in the video above; and feel free to read some of his published literature and other presentations on the subject below:

The Commonplace Second Amendment

Who’s Right on Second? – Eugene Volokh, December 6, 2002 https://cjhsla.org/2013/03/31/whos-right-on-second-eugene-volokh-december-6-2002/

Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, Sept. 23, 1998.

Here are some of his sources:

Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions

The bottom line, one which is clear to anyone willing to review the scholarly evidence, is that the right to keep and bear arms is not a "collective" right tied to any Militia requirement, but rather an Individual right which is as important now as it ever was to preserve from infringements pushed by anyone who thinks otherwise.
 
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Captain Adverse said:
Is Gun ownership a Right?

The question is properly answer by Prof. Eugene Volokh, Professor of Law at UCLA and a scholar of the Second Amendment.



Believe it or not, he used to think it was a collective right tied to the Militia as well.

That until (like myself) he did his proper research on the subject and discovered it was, in fact, an Individual right.

Listen to his summary on the topic in the video above; and feel free to read some of his published literature and other presentations on the subject below:

The Commonplace Second Amendment

Who’s Right on Second? – Eugene Volokh, December 6, 2002 https://cjhsla.org/2013/03/31/whos-right-on-second-eugene-volokh-december-6-2002/

Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, Sept. 23, 1998.

Here are some of his sources:

Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions

The bottom line, one which is clear to anyone willing to review the scholarly evidence, is that the right to keep and bear arms is not a "collective" right tied to any Militia requirement, but rather an Individual right which is as important now as it ever was to preserve from infringements pushed by anyone who thinks otherwise.
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Tennessee Law Review, Spring 1995.

That was also filled with people who thought it was a "collective" right until they actually did the research.

The very idea of the "collective" right didn't even exist until the 1940s.
 
Captain Adverse said:
Is Gun ownership a Right?

The question is properly answer by Prof. Eugene Volokh, Professor of Law at UCLA and a scholar of the Second Amendment.



Believe it or not, he used to think it was a collective right tied to the Militia as well.

That until (like myself) he did his proper research on the subject and discovered it was, in fact, an Individual right.

Listen to his summary on the topic in the video above; and feel free to read some of his published literature and other presentations on the subject below:

The Commonplace Second Amendment

Who’s Right on Second? – Eugene Volokh, December 6, 2002 https://cjhsla.org/2013/03/31/whos-right-on-second-eugene-volokh-december-6-2002/

Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, Sept. 23, 1998.

Here are some of his sources:

Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions

The bottom line, one which is clear to anyone willing to review the scholarly evidence, is that the right to keep and bear arms is not a "collective" right tied to any Militia requirement, but rather an Individual right which is as important now as it ever was to preserve from infringements pushed by anyone who thinks otherwise.
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What?! i didnt even know this was a debate. Its obvious that right to bear arms and right to form a well regulated militia are 2 very different things. Interesting.
 
 
Moot said:
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My response?

Four of the Justices in Heller felt it was a collective right tied to the militia and supported Justice Berger's view...fortunately for the originalist interpretation...FIVE held otherwise.

That does not mean that I think the Amendment grants individuals access to any/every weapon or weapons platform they wish...I am informed by the literature of the day and the various Militia Acts which indicated what kinds of arms were expected of the common militia recruit when mustered. They limit it to the arms a soldier would carry as basic kit. Not "special" weapons, ordinance, crew-served weapons, or area effect weapons.

No Right is "absolute," otherwise (for example) slander and libel would be protected and legal.
 
Captain Adverse said:
My response?

Four of the Justices in Heller felt it was a collective right tied to the militia and supported Justice Berger's view...fortunately for the originalist interpretation...FIVE held otherwise.

That does not mean that I think the Amendment grants individuals access to any/every weapon or weapons platform they wish...I am informed by the literature of the day and the various Militia Acts which indicated what kinds of arms were expected of the common militia recruit when mustered. They limit it to the arms a soldier would carry as basic kit. Not "special" weapons, ordinance, crew-served weapons, or area effect weapons.

No Right is "absolute," otherwise (for example) slander and libel would be protected and legal.
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Except that (bolded above) is being inverted - many call for banning "military style" arms and calling a (scary looking?) semi-auto rifle a "weapon of war" or a "sniper rifle". It is precisely the idea that the 2A is not unlimited that has folks trying to test those limits - incrementally is seen as the way to go because taking away all semi-auto guns (at once) would face fierce objection. Naturally, mass shooters prefer certain guns so, as any (class of them?) become "too popular", then it too can (must?) be banned based on the 1994 AWB precedent (never challenged in the SCOTUS).
 
Captain Adverse said:
My response?

Four of the Justices in Heller felt it was a collective right tied to the militia and supported Justice Berger's view...fortunately for the originalist interpretation...FIVE held otherwise.

That does not mean that I think the Amendment grants individuals access to any/every weapon or weapons platform they wish...I am informed by the literature of the day and the various Militia Acts which indicated what kinds of arms were expected of the common militia recruit when mustered. They limit it to the arms a soldier would carry as basic kit. Not "special" weapons, ordinance, crew-served weapons, or area effect weapons.

No Right is "absolute," otherwise (for example) slander and libel would be protected and legal.
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I think Justice Breyer interpretation was probably closer to the framers intent and more originialist than Scalia's. Breyer said that Article One in the Constitution gave congress the power to fund and organize well regulated militas but the states were afraid that might give congress the power to disband state militias and replace them with a federal standing army. The 2nd amendment was meant to protect the right of the people to form well regulated militas for the "neccessary" protection of the state.

My opinion is that the 2nd was intended to protect the right of the people to form regulated militias for the defense of their communities and state...and the only way to make it an individual right is to completely ignore the entire clause except for the last few words.
 
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Captain Adverse said:
My response?

Four of the Justices in Heller felt it was a collective right tied to the militia and supported Justice Berger's view...fortunately for the originalist interpretation...FIVE held otherwise.

That does not mean that I think the Amendment grants individuals access to any/every weapon or weapons platform they wish...I am informed by the literature of the day and the various Militia Acts which indicated what kinds of arms were expected of the common militia recruit when mustered. They limit it to the arms a soldier would carry as basic kit. Not "special" weapons, ordinance, crew-served weapons, or area effect weapons.

No Right is "absolute," otherwise (for example) slander and libel would be protected and legal.
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No, all 9 Justices agreed it's an individual right.
 
Moot said:
I think Justice Breyer interpretation was probably closer to the framers intent and more originialist than Scalia's. Breyer said that Article One in the Constitution gave congress the power to fund and organize well regulated militas but the states were afraid that might give congress the power to disband state militias and replace them with a federal standing army. The 2nd amendment was meant to protect the right of the people to bear arms for the "neccessary" protection of the state.

My opinion is that the 2nd was intended to protect the right of the people to form militias for the defense of their communities and state...and the only way to make it an individual right is to completely ignore the entire clause except for the last few words.
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IMO, and based on my research of the literature for my own graduate degree on the period...you are simply wrong. :shrug:
 
Captain Adverse said:
IMO, and based on my research of the literature for my own graduate degree on the period...you are simply wrong. :shrug:
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Sorry, but your knowledge and research isn't that impressive. Too bad they didn't teach you critical thinking. Next time you start a thread you might warn people that you're not interested in differing opinions or debate and are only interested in pushing your agenda.
 
Harshaw said:
No, all 9 Justices agreed it's an individual right.
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Correct:

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting...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.
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https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

I overstepped, but not by much, since the dissent argues for how it can be regulated and limited, as a right of States to maintain a militia. This implies that it is actually an "individual right" that can be "collectively tied" to the State militia and limited by State laws for such purposes.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia... Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
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https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
 
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Moot said:
Sorry, but your knowledge and research isn't that impressive. Too bad they didn't teach you critical thinking. Next time you start a thread you might warn people that you're not interested in differing opinions or debate and are only interested in pushing your agenda.
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You offered an opinion, I offered one indicating yours is wrong.

How is my "opinion" that your argument is wrong invalidated by simple disagreement? :confused:

People did not need to be "members of a community" in order to provide for their own defense and the defense of others.

Militias are created by individuals agreeing to support each other in mutual defense, but it starts with individuals willing to defend themselves.

IMO you put the cart before the horse is all. :shrug:
 
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Captain Adverse said:
Correct:

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

I overstepped, but not by much, since the dissent argues for how it can be regulated and limited, as a right of States to maintain a militia. This implies that it is actually an "individual right" that can be "collectively tied" to the State militia and limited by State laws for such purposes.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
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How did you manage to twist "a right of States to maintain a militia" into an "individual right"?
 
Moot said:
How did you manage to twist "a right of States to maintain a militia" into an "individual right"?
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See post 13.

It starts as the individual right to self-defense. Individuals join together to form groups, groups form communities, communities form states.

But it all starts with the individual's willingness to cooperate in defense of others.
 
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Captain Adverse said:
Is Gun ownership a Right?

The bottom line, one which is clear to anyone willing to review the scholarly evidence, is that the right to keep and bear arms is not a "collective" right tied to any Militia requirement, but rather an Individual right which is as important now as it ever was to preserve from infringements pushed by anyone who thinks otherwise.
Click to expand...

Must an American be of a certain age before purchasing a firearm?
Are automatic firearms largely banned from civilian ownership?
Are certain Americans disallowed from owning a firearm?

The answer to all of the above is "yes", of course...which means that the phrase "shall not be infringed" depends on the opinions of those tasked with interpreting the 2A. One set of judges might open up firearm ownership to all and sundry and ensure that silencers and bump stocks are also part of the 2A "rights"...whereas another set of judges may look at the same phrasing and see that since there are obvious limits, then it's only a matter of where those limits are set, such as "the right of the people to keep and bear arms is not infringed if assault-style weapons and bump stocks and silencers and armor-piercing ammunition are banned - those who are not otherwise disallowed from bearing arms (e.g. children, violent felons, etc.) are free to purchase, keep, and bear arms within the bounds of state and local law."

Yeah, I know, you'll strongly disagree with all that...except for the part about the judges - I don't think you can argue otherwise. Our nation's judicial history plainly shows that federal judges - even those on SCOTUS - have made wildly different interpretations. It's sorta like religion, how two people can read the same words in the Bible and come up with completely different interpretations - the same thing happens with the 2A.
 
Captain Adverse said:
You offered an opinion, I offered one indicating yours is wrong.

How is my "opinion" that your argument is wrong invalidated by simple disagreement? :confused:

People did not need to be "members of a community" in order to provide for their own defense and the defense of others.

Militias are created by individuals agreeing to support each other in mutual defense, but it starts with individuals willing to defend themselves.

IMO you put the cart before the horse is all. :shrug:
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So if the framers meant "individuals" then why didn't they say "individual" or "person" instead of "people"? People means more than one person...a collective. People implies that militias are a collective of people, not individuals doing their own thing.
 
Glen Contrarian said:
Must an American be of a certain age before purchasing a firearm?
Are automatic firearms largely banned from civilian ownership?
Are certain Americans disallowed from owning a firearm?

The answer to all of the above is "yes", of course...which means that the phrase "shall not be infringed" depends on the opinions of those tasked with interpreting the 2A. One set of judges might open up firearm ownership to all and sundry and ensure that silencers and bump stocks are also part of the 2A "rights"...whereas another set of judges may look at the same phrasing and see that since there are obvious limits, then it's only a matter of where those limits are set, such as "the right of the people to keep and bear arms is not infringed if assault-style weapons and bump stocks and silencers and armor-piercing ammunition are banned - those who are not otherwise disallowed from bearing arms (e.g. children, violent felons, etc.) are free to purchase, keep, and bear arms within the bounds of state and local law."

Yeah, I know, you'll strongly disagree with all that...except for the part about the judges - I don't think you can argue otherwise. Our nation's judicial history plainly shows that federal judges - even those on SCOTUS - have made wildly different interpretations. It's sorta like religion, how two people can read the same words in the Bible and come up with completely different interpretations - the same thing happens with the 2A.
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See post #6.
 
Moot said:
How did you manage to twist "a right of States to maintain a militia" into an "individual right"?
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Does the 2A say "the right of the people to...", "the right of the militia to..." or "the right of the state to..."?
 
Moot said:
So if the framers meant "individuals" then why didn't they say "individual" or "person" instead of people? People means more than one person...a collective. People implies that militias are a collective of people, not individuals doing their own thing.
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Well, hasn't the interpretation (both legal and social) of the term "people" as it appears in the Constitution always been meaning protection of individual rights?

Do you not have the right to be secure in your person and property against illegal searches and seizures? Are you not a "person" as referred to by the term "people?"

Are you actually arguing that it is NOT a reference to an individual right shared by all individuals making up the group known as "the people?" That only groups of people (like clubs and organizations) are protected, but NOT you, the individual?
 
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Glen Contrarian said:
Must an American be of a certain age before purchasing a firearm?
Are automatic firearms largely banned from civilian ownership?
Are certain Americans disallowed from owning a firearm?

The answer to all of the above is "yes", of course...which means that the phrase "shall not be infringed" depends on the opinions of those tasked with interpreting the 2A. One set of judges might open up firearm ownership to all and sundry and ensure that silencers and bump stocks are also part of the 2A "rights"...whereas another set of judges may look at the same phrasing and see that since there are obvious limits, then it's only a matter of where those limits are set, such as "the right of the people to keep and bear arms is not infringed if assault-style weapons and bump stocks and silencers and armor-piercing ammunition are banned - those who are not otherwise disallowed from bearing arms (e.g. children, violent felons, etc.) are free to purchase, keep, and bear arms within the bounds of state and local law."

Yeah, I know, you'll strongly disagree with all that...except for the part about the judges - I don't think you can argue otherwise. Our nation's judicial history plainly shows that federal judges - even those on SCOTUS - have made wildly different interpretations. It's sorta like religion, how two people can read the same words in the Bible and come up with completely different interpretations - the same thing happens with the 2A.
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Yep, which is why original intent and precedent are so important - otherwise, nothing is ever settled law. There is a defined process for amending the constitution and judicial activism is not it.
 
ttwtt78640 said:
Yep, which is why original intent and precedent are so important - otherwise, nothing is ever settled law. There is a defined process for amending the constitution and judicial activism is not it.
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This is the problem I have with the reasoning behind the "living document" ideal of Constitutional interpretation touted today...that as times change, the meaning of the terms change with them.

So that what the original meanings were at the time the document was written have no more relevance, and current thinking can interpret (read "twist") them into new meanings useful to current agendas.
 
Captain Adverse said:
This is the problem I have with the reasoning behind the "living document" ideal of Constitutional interpretation touted today...that as times change, the meaning of the terms change with them.

So that what the original meanings at the time the document was written have no more relevance, and current thinking can interpret (read "twist") them into new meanings useful to current agendas.
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Yep, nobody should seriously argue that since digital records or internet comminications are not papers then they may be seized without a warrant.
 
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