Here's a quote from Carl Bogus' contribution to the book he edited, The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms (p.1):
The United States Supreme Court addressed the amendment three times -- in 1876, 1886, and 1939 -- and on each occasion held that it granted the people the right to bear arms only within the militia. Although in some circles today there is much discussion about what the word 'militia' means, the Supreme Court had no trouble with the term. It held that the amendment referred to the militia defined in Article I, section 8, of the Constitution, that is, the militia organized by Congress and subject to joint federal and state control. This is generally referred to the as the "collective rights" model because it holds that the Second Amendment grants the people a collective right to an armed militia as opposed to an individual right to keep and bear arms for one's own purposes outside of, even notwithstanding, governmental regulation."
Note the easy slide between what the Supreme Court has held, and Bogus' interpretation. The fourth sentence gives the impression that the Supreme Court has endorsed the collective rights model. Then on pages 7 and 8, Bogus makes explicit what was only implicit before: since Congress has "the power to organize the militia", "the militia is what Congress decides it is". Now this is interesting inasmuch as the exegesis of "organizing" that came out of the Convention debates is that of Rufus King, who "said that by organizing the Committee meant, proportioning the officers & men" (Farrand, 2:385). Add to that what was said in the Miller opinion:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected tom appear bearing arms supplied by themselves and of the kind in common use at the time.
So Bogus was right: "the Supreme Court had no trouble with the term." Unfortunately, Bogus has leapt over the exegesis of the Convention, over the Supreme Court's own language in Miller, and given us his own spin on "organizing" and thus "militia" -- to Bogus, "the militia is what Congress decides it is", and the Supreme Court can just go fly a kite (though, of course, the discrepancy between Bogus' and the Supreme Court's view of the "militia", is never mentioned by Bogus).
by Richard Henry Morgan on January 18, 2003 at 6:09 PM