Citation

Caplan DI. J. Firearms Public Policy 1988; 1(1): 12-55.

Copyright

(Copyright © 1988, Second Amendment Foundation)

DOI

unavailable

PMID

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Abstract

During 1981, courts in both Oregon and Indiana re-asserted their 1980 holdings that their respective state constitutional provisions for a right of the people to bear arms guaranteed an individual right to the private citizen. More specifically, the Oregon Supreme Court in State v. Blocker re-asserted its 1980 holding in State v. Kessler invalidating an Oregon state statute banning the private possession of certain arms, such as billy clubs. The Indiana Court of Appeals in Shettle v. Shearer reaffirmed its 1980 holding in Shubert v. Debard that an applicant for a license to carry a handgun who claimed "self-defense" as a reason for the license could not constitutionally be required to demonstrate factually the "need" for the license. The Kessler and Schubert opinions both contain detailed discussions on the scope and policy of the right of the people to keep and bear arms as a private individual right. This article reviews the historical background of that right, and the consequent signaling of judicial trend rejecting the exclusively collective right theory of the right of the people to keep and bear arms.

The exclusively collective right theory stands for the proposition that the "right of the people to keep and bear arms" - as expressed in the second amendment of the United States Constitution, or as specified in various ways in thirty-seven state constitutions - is strictly limited to guaranteeing a collective right of the organized militia or National Guard. However, both the Indiana and the Oregon courts rejected the exclusively collective right theory in favor of a theory that recognizes both a private individual constitutional right and a collective right. Because these decisions set forth with great clarity the underlying fundamental issues in a concrete context, a rather detailed review of the reasoning of these decisions is useful in understanding their important implications. Moreover, the Oregon court in State v. Kessler based its decision on an explicit acceptance of the English legal traditions of the right of self-defense and the right of the individual citizen to have arms for that purpose. Accordingly, this tradition will be explored first, followed by a review of the holdings of Schubert and Kessler. Finally, this article will explore the implications of these cases regarding the exclusively collective right theory of the right of the people to bear arms.

Reprinted by permission of: Detroit College of Law Review 1982, Winter, Issue 4. (Revised and updated by the author.)