I touched upon this topic in my last diary, but that one ended up focusing more on the meaning behind "well regulated militia." Today I will not get so distracted and instead explore the question of the Second Amendment codifying an individual right.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
As I said in the last diary, what is a "militia" if not a collection of armed individuals? What is "the people" if not a collection of individuals, armed or otherwise?
RKBA is a DKos group of second amendment supporters who also have progressive and liberal values. We don't think that being a liberal means one has to be anti-gun. Some of us are extreme in our second amendment views (no licensing, no restrictions on small arms) and some of us are more moderate (licensing, restrictions on small arms.) Moderate or extreme, we hold one common belief: more gun control equals lost elections. We don't want a repeat of 1994. We are an inclusive group: if you see the Second Amendment as safeguarding our right to keep and bear arms individually, then come join us in our conversation. If you are against the right to keep and bear arms, come join our conversation. We look forward to seeing you, as long as you engage in a civil discussion. RKBA stands for the Right to Keep and Bear Arms.
I'll also follow suit with my last diary by starting with the militia bit again before getting into the SCOTUS talk. Cornell has a really groovy resource that is my go-to for all questions Constitutional. Therein I recently found some pretty interesting laws from our early years regarding the formation of militias. Here are some highlights:
The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
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.
..."The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII:
A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts].
Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals.
The General Court of Massachusetts, January Session 1784:
...shall equip himself, and be constantly provided with a good fire arm
By an Act passed April 4, 1786, the New York Legislature directed:
That every Citizen so enrolled and notified shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges
The General Assembly of Virginia, October, 1785
The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.
So it seems pretty clear that even with "for the purposes of a militia" as an overarching concern, the question of bearing arms is one of an individual right. Half the Bill of Rights -- Amendments I, II, IV, IX and X -- employs the phrase "the people" in upholding rights. Yet no one would argue those apply to anything other than individuals; who has freedom of religion, speech and assembly if not individuals? Why should "the people" of the Second Amendment be any different than "the people" of the Fourth Amendment?
Answer: they aren't. Despite a lot of misperceptions on the issue, the jurisprudence and legal precedent regarding the Second Amendment is, actually, pretty clear that it is about the rights of individuals. Even in United States v. Miller, commonly upheld as the standard bearer for gun control, the footnotes in the issued decision point to a strong history of the 2nd as an individual right:
In the attached footnote, the opinion cites two prior U.S. Supreme Court opinions and six state court opinions, all of which treat the Second Amendment or its state analogue as an individual right, even as the opinions uphold particular gun controls. [FN24] The footnote likewise cites treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right.
...critics argue that the introductory, militia, clause controls the meaning of the main, right to arms, clause. They contend that to omit the introductory clause is to distort completely the Second Amendment's meaning. (And if, as these critics argue, the Second Amendment grants a right to state governments rather than to individuals, then omission of the introductory clause is indeed quite misleading.) On the other hand, if the Second Amendment is about a right of people (the main clause), and the introductory clause is useful only to resolve gray areas (such as what kind of arms people can own), then it is legitimate sometimes to quote the main clause only. As the chart shows, the Supreme Court has quoted the main clause alone much more often than the Supreme Court has quoted both clauses together.
...Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause.
It's lengthy, but the whole paper is definitely worth a read. The author has also provided a nifty chart showing a breakdown of Second Amendment court cases and where various opinions (majority and dissenting) came down on the question of RKBA as an individual right. The body of legal theory on the subject is a lot more extensive than people think, I think.
So again, I ask: What is a "militia" if not a collection of armed individuals? What is "the people" if not a collection of individuals, armed or otherwise?