Seegars v Ashcroft: A collective right?

Although most of the plaintiffs had their claims dismissed as not ripe for review, one plaintiff did survive to reach the merits of the case, and a substantial (if errant) ruling on the 2nd Amendment was the result. I discuss the basics of that ruling here.

Although most of the plaintiffs had their claims dismissed as not ripe for review, one plaintiff did survive to reach the merits of the case, and a substantial (if errant) ruling on the 2nd Amendment was the result. I discuss the basics of that ruling here.

The Ruling on the 2nd Amendment

The judge separates out the current theories of the 2nd Amendment into three distinct categories:

  1. The individual rights model
  2. The "sophisticated collective rights model" or the "limited individual rights model", based around the concept of an individual right with a necessary relationship to militia service.
  3. The collective rights model, asserting no individual right.

The judge proceeds to cite and discuss US v Miller, following the popular anti-gun misreading of that case, and also spends time analyzing the cases which Miller itself cited. The first two cases analyzed are both Supreme Court cases; Presser vs Illinois and Robertson v Baldwin. Presser is cited for the purpose of demonstrating the "non-incorporation" of the 2nd Amendment. This is a historical artifact that requires some explanation.


Originally, the federal government was brought into being by the Constitution, and that Constitution was shortly thereafter amended with the Bill of Rights. The Bill of Rights was originally conceived to be binding only upon the federal government. With the passage of the 14th Amendment, however, that changed. Various Supreme Court rulings have applied the prohibitions and protections in the Bill of Rights to the state governments as well by way of the 14th Amendment, resulting in a set of prohibitions that apply to the entire United States, not merely the federal government.

Because the courts have avoided facing the 2nd Amendment squarely, however, the 2nd Amendment has not been so incorporated. Some other clauses in the Bill of Rights have similar status. (See this further explanation of incorporation and the bill of rights).

It is difficult to believe that a reasonable modern court could refuse to incorporate the 2nd Amendment except by deliberately ducking the issue. However, one of the advantages of 2nd Amendment lawsuits in the District of Columbia is that the District is governed by the federal government, or more accurately, by the authority of the federal government (a city council and mayor handle most actual lawmaking). Thus, a court can rule that the 2nd Amendment protects an individual right, and overturn the DC law, without necessarily throwing the various state restrictions on firearms into question.

Mind you, I think the 2nd Amendment should be incorporated. But that's a big step that a lower court is unlikely to undertake. If the Supreme Court rules in favor of an individual right, incorporating the 2nd Amendment is probably inevitable, but it won't necessarily happen in the same case. Filing the lawsuit in DC against a law which derives from federal authority sidesteps the incorporation issue.

Presser v Illinois

The details of Presser v Illinois are interesting. The case involves a law that prohibits the unauthorized assembly of men to drill with arms; the law was challenged and upheld. It took place in 1886, 20 years after the passage of the 14th Amendment; the courts incorporated the various Amendments of the Bill of Rights gradually, and so it can safely be said that this decision was not made with a full understanding of the incorporation trend.

Rather, the decision was made in the aftermath of the Civil War, less than a generation away from its horrid toll on America. The South remained uneasy, and the North remained wary. I find it not at all surprising that a court would find it within the power of a State government to forbid the assembly of armed men into military companies under private authority.

Is the decision Consitutional? The First Amendment qualifies the right to assembly with the word "peaceably". The 2nd protects the right "of the people" to "keep and bear arms", but it is unclear whether that amendment protects a military purpose, a private purpose, or a State purpose. I believe the founding fathers would have felt their own militias, outlawed by the British government, as protected under the 2nd Amendment; but in the aftermath of the Civil War that is a can of worms I am not surprised that a court would shrink back from opening.

But reading the full text of Presser is enlightening, because the court considers this very point. Even as the district court cites Presser for the contention that the 2nd Amendment does not prohibit State action, Presser refutes that claim:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.

In other words, the 2nd Amendment does not protect a right to organize into a militia; but the States are nevertheless unable to disarm the people. Even if the 2nd Amendment does not apply to the States, the right of the people to keep and bear arms is protected, because the people are members of the United States Militia and in that respect under the authority of the United States, not any single State. What you have there is an individual right: all citizens capable of bearing arms. The only missing piece is incorporation of the 2nd Amendment via the 14th.

In citing Presser, the district court contradicts itself. Presser explicitly assigns the right to keep and bear arms to individuals in order to rule that there is no collective right. The district court then argues that the right is collective and permits the State to disarm the people in direct contradiction to Presser, as shown above, which states that the people cannot be individually disarmed.

That the court would do such a thing does not surprise me. In order to deny the 2nd Amendment courts must very carefully engage in selective citation and quotation. This is why they prefer to find some way to avoid the issue..

After discussing the incorporation issue, the court considers the lower court cases cited in Miller.

Aymette vs State

One of the more interesting citations in the decision is Ayamette vs State. The court cites this case as support for the idea that the 2nd Amendment is a collective right applicable to the militia, but this analysis by Clayton Cramer (a scholar on early American firearms history) suggests that the decision actually supports an individual rights view. The following quote from Aymette is from Clayton's analysis:

As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.

The key point here is that the right to keep and bear arms, even if intended to apply in the common defense, exists as a general and public right. It's sort of like saying that the Fourth Amendment protects the right of the people from having their homes searched without warrants or probable cause by protecting the rights of each individual person from those things. The 2nd Amendment protects the right of the people to act keep and bear arms in their common defense by protecting the right of each person to do so individually. The collective right arises from the individual right.

Also worth noting is that the right generally covers military weapons, which is exactly opposite to how gun control laws are generally applied. The less military a weapon is, the less control generally placed upon it. Of course, in this case, the second point is not likel to be relevant. A court is unlikely to rule that the 2nd Amendment does not protect a handgun because it only protects military weapons, since handguns are common military equipment and such a ruling would inherently threaten the regulations upon machine guns, tanks, explosives, and other "arms".

In light of that analysis, this court explicitly misreads Aymette when it states:

While these cases do not conclusively resolve the debate over the scope of the Second Amendment, they are significant not only because the Miller Court found them noteworthy and none of them recognized an individual right to bear arms, but also because they provide important historical background concerning the origin of the Second Amendment.

Aymette, at least, recognizes the individual right to carry military arms even while refusing to protect non-military arms (specifically, a bowie knife, carried concealed). So does Presser, while denying the right to form an organized militia with those arms. What is left but an individual right to keep and bear arms of military utility in a non-military context?

US v Brown

In this case the defendent was convicted of carrying a blackjack (a non-military weapon). The Brown court declares that the Michigan Constitution's statement in article 2, section 5 ("Every person has a right to bear arms for the defense of himself and the state") originates in "a militia composed of al able-bodied men" and "the necessity of self-protection in a frontier society". Brown then claims that the militia is obsolete, superceded by the National Guard, and that arms would be provided by the State if the militia were called to service.

But Constitutional Rights don't just disappear. That's why there is an amendment process. That this ruling even exists is embarassing, and the district court should be embarassed for citing it.


In this case, the defendent challenges a Texas statute making it unlawful to carry a pistol. The court upholds the statute, stating that it is "nothing more than a legitimate and highly proper regulation of [the] use [of pistols]." But this case is not relevant to Seegars v Ashcroft for two reasons: first, Duke almost certainly deals with carrying a pistol in public, while Seegars asserts a desire to possess and carry only on one's own property; and second, because the Texas Constitution has an "escape clause" for gun control:

"[e]very person shall have the right to keep and bear arms in the lawful defense of himself or the State, under such regulations as the Legislature may prescribe."

It would be very difficult to strike down a gun control law short of an outright ban under that provision. The 2nd Amendment does not contain anything similar; it is the militia which is to be well-regulated, not the right to keep and bear arms. (Also, see the original meaning of regulation).


In Workman the defendent was convicted of carrying a concealed weapon. The Court addresses Workman mainly to include its historical notes on English common law. Notably, those comments reference "going around with unusual and dangerous weapons to the terror of the people". The key here is the final phrase: to the terror of the people. It remained legal to possess arms, but terrorizing people with them could remain a criminal offense. Ironically, while open-carry used to be the mark of the honest man, nowadays concealed-carry is considered less provocative.

The case also touches briefly on the type of arms, limiting it to military arms, and excluding pistols which are normally used in crime. That claim would not stand review today, because handguns are presently a part of the ordinary military equipment.

Modern 2nd Amendment Cases

The court spends a fair amount of time examining the modern jurisprudence surrounding the 2nd Amendemnt. Almost all of the modern cases are derived from the ruling in US v Miller and actually substantially misread that ruling.

Miller itself is an almost comically bad decision to use as precedent, and when properly analyzed, provides strong support for an individual right with respect to weapons useful in a military context. The decision turned not on whether Miller (the defendent) was a member of a militia, but on whether the weapon he was charged with possessing had military utility.

The Supreme Court sent the case back to the lower court to determine whether the weapon had military utility or not; the lower court, which had previously struck down the statute as violating the 2nd Amendment, never heard the case again and thus Miller was never convicted. Miller himself was not represented before the court, presumably because he was either missing or dead at the time, and sufficiently poor to be unable to afford the bear the costs of Supreme Court litigation in any event (this was before the right to counsel was acknowledged).

Under such circumstances, a poor ruling was inevitable, and the decision in US v Miller was probably as good as could be hoped for.

US vs Emerson

The one recent court ruling favorable to the 2nd Amendment is United States vs Emerson. The court discusses it at length, focusing mainly on interperting the "keep and bear arms" terminology and the militia relationship.

This is the classic mistake of the collective-rights argument; it is tempting to argue for a right maintained by a "militia", bolstered by the fact that the phrase "bearing arms" often has a military connotation, while conveniently ignoring the rest of the amendment... the part that specifies a right of the people. Those are the same "people" protected by the 1st, 4th, and 6th amendments.

At the time the Constitution was written, the "militia" consisted of every able-bodied male citizen, and several states provided for the arming of the militia by requiring that every qualified citizen possess a suitable military arm. (Yes, folks, in the modern world that would mean an M-16 in every home, required by law, and if you couldn't afford one one would be provided to you).


The district court briefly considers this case, mentioning that it addresses the argument that the 2nd Amendment preserves an individual right in order to allow the people to become accustomed to the use of arms:

The court concluded that [t]he weakness of this argument lies in the fact that in nearly ever state in the Union there are provisions for organizing and drilling state militia in sufficient numbers to meet any such emergency. Id.

The flaw in this analysis is that the provisions for organizing and drilling state militia at the time of ratification also provided for arming the state militia... by ensuring that every member of the militia would be armed (in many cases, providing those arms if necessary), and would keep those arms in his home. As previously noted, the militia comprised all able-bodied male citizens. As Goerge Mason put it, "I ask sir, who is the militia? It is the whole people.."

Even if the 2nd Amendment protects only a right relevant to membership in the militia, every citizen is a member; and even if the militia can only be (legally) called up by the State or Federal government, nevertheless the members of the militia possess the right to keep and bear arms persuant to that membership.

The court concludes this analysis by noting:

For the aforementioned reasons, this Court finds that the Second Amendment was adopted to ensure the effectiveness of state militias as protectors of the states, and thus the people, from the potential of an oppressive national government. Accordingly, the Court must conclude that the Second Amendment does not confer an individual a right to possess firearms. Rather, the Amendment s objective is to ensure the vitality of state militias. Having concluded that the traditional individual rights model does not withstand a contextual and historical analysis of the Second Amendment, this Court needs not determine whether the Amendment protects the rights of individual state militia members to possess firearms to resolve the issues raised in this case. This determination does not have to be made because, as the Court will explain below, the Second Amendment's scope does not extend to the District of Columbia, but, even if it did, plaintiff Hailes has failed to assert that she is part of the District of Columbia's militia and therefore has a right to possess firearms as a result of such membership.

Failing to assert militia membership is a catch-22. If you assert it the government can change the definition to exclude you, and thus deny your firearms rights. If you do not assert it, they can claim you are not a member and deny your firearms rights. That's a tricky one, and I'm not sure what the right answer is.

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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