Tuesday, June 11, 2002
The Post runs a routine AP dispatch on yesterday's Supreme Court decision not to hear appeals in two cases where the Bush Administration has, in sneaky little footnotes, affirmed the individual right to bear arms. By routine, I mean it claims the 1939 Miller decision affirmed the collective-rights view:
The high court interpreted the Second Amendment in 1939 as a protection of militia rights, not of individual ones.
Doing fine right up until the comma after "militia rights." As blogged before, here's Eugene Volokh's commentary:
The U.S. Supreme Court has said little about the Second Amendment, but it has certainly not said that the Amendment secures only a collective right. Throughout the Court's history, the Justices have mentioned the Second Amendment, usually in passing, in 27 opinions. In 22 of these 27, the Justices quoted or paraphrased only "the right of the people to keep and bear arms" language, without even mentioning the Militia Clause.
One of the remaining five cases -- and the only extended 20th-century discussion of the right -- is United States v. Miller (1939), which held that the right extended only to weapons that were rationally related to the preservation of the militia. But the Court emphatically did not hold that the right belonged only to the state or the National Guard. Rather, it reaffirmed that the "militia" referred to the entire armed citizenry, and considered on the merits a lawsuit that was brought by an individual (Miller), not by a state.