he American Civil Liberties Union (ACLU) believes that the Second Amendment protects a “collective right”, not an individual one:

Given the reference to “a well regulated Militia” and “the security of a free State,” the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court’s 1939 decision in United States v. Miller was widely understood to have endorsed that view.

As I believe I’ve made clear in other posts, I disagree vehemently with the ACLU’s interpretation of the Second Amendment, as should anyone who learned how to parse a sentence in English class. The reference to a well-regulated Militia was used by the amendment’s writers to explain why such a right was of the utmost importance in their minds, but the pertinent part of the amendment is that “…the right of the people to keep and bear arms shall not be infringed.” Given that the phrase “right of the people” is interpreted to mean an individual right everywhere else in the Bill of Rights, it is disingenuous to imagine that it suddenly means something else in the Second Amendment.

Similarly, there is no grammatical structure in the Second Amendment to indicate that the right is somehow dependent on the relationship between a well-regulated militia to the security of a free state. Just because many people no longer believe that a well-regulated militia is necessary for the security of a free state does not negate the right’s protection in the Second Amendment.

I also disagree with the interpretation of the United States v. Miller. In Miller, the Court held that the federal law in question was legal not because the right was “collective”, but because the “arms” in question were not of the sort that would be used in a Militia. Effectively, Miller could be read to indicate that weapons that were of ordinary military use could not be legislated. It is also noteworthy that the federal law in question (The National Firearms Act of 1934) did not ban these bans outright — it merely imposed a tax (one that was, arguably, excessive) on them. Also of note is that Miller had died before the case made it to the Supreme Court, and that only the “United States” side of the case was presented to the Court. The case did not touch on the nature of the right enshrined in the Second Amendment, only on the types of weapons to which it applied.

That said, I don’t really care about the ACLU’s opinion on the Second Amendment, or, to be honest, anything else. The ACLU is famous for standing up for civil liberties, provided they agree with the particular liberty in question (and, sometimes, provided they agree with the person exercising that liberty). What caught my attention today was that the ACLU believes that the right is a “collective” one. The “Collective Right” interpretation of the Second Amendment is one that is commonly used by Gun Control Activists, but it’s not one that I’ve ever given any thought to, until today. What, exactly, is a “collective” right?

Let’s assume that the ACLU is correct, that the Second Amendment only guarantees a collective right, and that it guarantees this right only to members of the militia. As defined at the time of the passage of the Second Amendment, the militia was every able-bodied man within a certain age range. Being of more enlightened times, I will define “militia” as every able-bodied adult, whether male or female. The militia was never intended by the Framers of the Constitution to be a government-run group^[a].

So, the militia consists of a group of civilian adults who are healthy enough (physically and mentally) to wield weapons safely. This group has a collective right to keep and bear arms, in the ACLU’s view. What does that mean? Does the ACLU honestly believe that these people have a right to keep and bear arms, but only collectively? How big of a group does one have to have to be a “collective”? Do we have to have a hive-mind, like the Borg?

And how does a group keep and bear arms? Do the weapons have to be registered to a group of people, like a corporation? Can they only be stored on group property? Do they have to be jointly carried (bore) by more than one member of the group at a time?

1. In fact, the fact that it was government-run would run completely counter to what the Framers saw as the most important purpose of the amendment, which is spelled out in the very phrase the ACLU is using to try to undermine the right — the well-regulated, armed Militia was necessary not to protect us from criminals or foreign invaders, but to protect us from the government. [↩]