Whether the Second Amendment Secures an Individual Right
133
1965, however, the Justice Department expressly adopted the collective right
interpretation in congressional testimony by Attorney General Katzenbach.
25
Soon after, in 1968, Congress passed the first major federal gun regulation
since 1938, the Omnibus Crime Control and Safe Streets Act.
26
This statute
produced a flurry of decisions in the federal courts of appeals rejecting the
individual right view. Following the Third Circuit’s dicta in Tot, the Fourth, Sixth,
Seventh, and Ninth Circuits eventually adopted the collective right view.
27
Following the First Circuit in Cases, the Eighth, Tenth, and Eleventh Circuits
adopted quasi-collective right views.
28
As in Tot and Cases, many of these cases,
particularly the initial ones, involved constitutional challenges by persons con-
victed of felonies or violent crimes,
29
and some involved challenges to restrictions
similar devices adaptable to military use (May 8, 1961); Memorandum for Byron R. White, Deputy
Attorney General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of Legal
Counsel, Re: Proposed report of the Department of Defense on H.R. 2057 “To provide for the securing
of custody and disposition by the United States of missiles, rockets, earth satellites and similar devices
adaptable to Military uses, and for other purposes” at 1 (Mar. 22, 1962).
25
See Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency
of the Senate Comm. on the Judiciary, 89th Cong. 40–41 (1965) (statement of Attorney General
Katzenbach). For subsequent treatment of the Second Amendment, see, e.g., Memorandum for Richard
G. Kleindienst, Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General,
Office of Legal Counsel, Re: Proposed “Federal Gun Registration and Licensing Act of 1969” (Feb.
19, 1969) (in one-sentence discussion, citing Miller and Tot to find no “serious legal obstacle” under
Amendment to proposal for federal registration of firearms and limited federal licensing); Memoran-
dum for D. Lowell Jensen, Assistant Attorney General, Criminal Division, from Theodore B. Olson,
Assistant Attorney General, Office of Legal Counsel, Re: Proposed Legislation Relating to Firearms
and to Mandatory Sentencing, at 2 (May 27, 1981) (citing Miller as basis for “perceiv[ing] no basis for
suggesting that the [1968 Gun Control] Act so interferes with the powers of the States to raise militias
as to transgress the Second Amendment”); Firearm Owners’ Protection Act, Pub. L. No. 99-308,
§ 1(b)(1)(A), 100 Stat. 449, 449 (1986), codified at 18 U.S.C. § 921 note (2000) (law signed by
President Reagan that recognized “the right[] of citizens . . . to keep and bear arms under the second
amendment”).
26
Pub. L. No. 90-351, 82 Stat. 197.
27
See, e.g., Love v. Pepersack, 47 F.3d 120, 122–24 (4th Cir. 1995); United States v. Warin, 530
F.2d 103, 105–07, 108 (6th Cir. 1976) (dismissing “the erroneous supposition that the Second Amend-
ment is concerned with the rights of individuals rather than those of the States” and rejecting claim
involving gun admittedly bearing reasonable relationship to preservation or efficiency of the army);
Gillespie v. City of Indianapolis, 185 F.3d 693, 710–11 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98,
99–102 (9th Cir. 1996). The Third Circuit’s present position is at least the quasi-collective right view,
if not the collective right view. See United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996).
28
See, e.g., United States v. Hale, 978 F.2d 1016, 1019–20 (8th Cir. 1992); United States v. Oakes,
564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1272–74 (11th Cir. 1997),
vacated in part on other grounds, 133 F.3d 1412 (1998). These courts make clear that the right under
the quasi-collective right view protects only members of organized militia units such as the National
Guard, not members of the “militia” defined more broadly. Oakes, for example, rejected a claim based
on the defendant’s membership in the Kansas militia, which consisted of all able-bodied men between
twenty-one and forty-five. 564 F.2d at 387; see also Wright, 117 F.3d at 1271–74 (similar); Hale, 978
F.2d at 1020 (similar); Warin, 530 F.2d at 105, 106, 108 (similar).
29
See, e.g., United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie, 185 F.3d at 710–
11; Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976); United States v. Johnson, 497 F.2d 548,