I wanted to get your thoughts on this since you have a legal background. Here is an argument laid out by a gun advocate insisting this was always understood as an individual right:
Elsewhere he said:The same state legislatures that ratified the Second Amendment affirmed an individual right in their state constitutions. They seemed to think it was an individual right.
Pennsylvania: 1776: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power. Declaration of Rights, cl. XIII.
Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).
Kentucky: 1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned." Art. XII, § 23.
Ohio: 1802: "That the people have a right to bear arms for the defence of themselves and the State; and as standing armies, in time of peace, are dangerous to liberty, they shall not be kept up, and that the military shall be kept under strict subordination to the civil power." Art. VIII, § 20.
In US v Cruikshank,1876, the Supreme Court recognized that "The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." The decision recognized the right of two former slaves to keep a bear arms, two men who were not in the militia, would not have been allowed to be in the militia, in a state where the militia had been disbanded.
Without the recognition of an individual right to keep and bear arms, Miller, whose entire appeal was based upon that right, would have no standing to have his case reviewed by the Supreme Court.
There have been six major pieces of gun control legislation passed by Congress, all prior to Heller: NFA 1934, Gun Control Act of 1968, Firearm Owners Protection Act (including the Hughes Amendment) of 1986, the Brady Act, the Assault Weapons Ban and the Lautenburg Amendment.
The word militia isn't mentioned a single time in any of them. The words "individual", "person" and "citizen" are repeated hundreds of times.
In 1982 the Senate published a bipartisan report entitled "the right to keep and bear arms report" that affirmed an individual rights viewpoint.
In 1990 in US v Verdugo-Urquidez the Supreme Court affirmed: "...it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
The claim that Heller changed the interpretation of the right protected by the Second Amendment from a collective to an individual viewpoint simply has no merit.
UNITED STATES, Petitioner v. Rene Martin VERDUGO-URQUIDEZ
"The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904)
There is a distinctive lack of the word "militia" to be found in this decision which predates Heller by 28 years and the 1994 AWB by four years.
UNITED STATES, Petitioner v. Rene Martin VERDUGO-URQUIDEZ
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US v Cruikshank noted an individual right. US v Verdugo-Urquidez noted an individual right. State constitutions contemporary with the ratification of the Bill of Rights noted an individual right. The Senate in 1982 noted an individual right. It's the collective view of the right to keep and bear arms that's Bogus. There's never been a federal law or the Supreme Court decision that affirmed the collective viewpoint of the right to keep and bear arms.
There have been six major pieces of gun control legislation passed by Congress, all prior to Heller: NFA 1934, Gun Control Act of 1968, Firearm Owners Protection Act (including the Hughes Amendment) of 1986, the Brady Act, the Assault Weapons Ban and the Lautenburg Amendment.
The word militia isn't mentioned a single time in any of them. The words "individual", "person" and "citizen" are repeated hundreds of times.