Constitutional Law

Continuing a myth

From an NPR interview:

"As a matter of history, we didn't really see anything like the individual point of view emerge until the 20th century," he says.... The modern debate about individual rights pertaining to guns, he says, began in the aftermath of Congress' enactment of the Gun Control Act of 1968, which attempted to control crime in the aftermath of the assassinations of John F. Kennedy, Martin Luther King Jr. and Robert Kennedy."

I've tracked the history pretty extensively, and am working on an article on the subject right now. Essentially, the individual rights understanding dominated everywhere until the 20th century. You see a few glimmers of a collective rights view in the early 20th century, but it really doesn't become serious until the 1940s, as federal appeals courts grappled with the ambiguities of US v. Miller, and sought to uphold the National Firearms Act. It becomes the dominant federal (but not state) view only after 1968, as appeals courts tried to uphold various features of the Gun Control Act. Heller was of course its downfall. So the collective rights view really is widespread only from 1940 or 1968 until 2007, and then only in the federal courts and a handful of state ones. For the rest of the history of the Republic, the individual rights view held sway.

Full post as published by Of Arms and the Law on January 27, 2011 (boomark / email).