The original collective rights theory had its first judicial acceptance in City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905), where neither side briefed the “collective right” because that theory did not yet exist. Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 Univ.of Dayton L. Rev. 59, 76-77 (1989). The earliest federal Court of Appeals statement of the original collective rights theory appears in U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942). See generally, Brannon P. Denning, Can the Simple Cite be Trusted?: Lower Federal Court Interpretations of United States v. Miller and the Secons Amendment, 26 Cumb. L. Rev. 961 (1996).
"Actually, the origin of the modern sophisticated collective right thesis that the initial phrase in the Amendment serves as a context-establishing clause for what follows is relatively recent and stems from quite contemporary ideological needs. [FN14] ( http://web2.westlaw.com/result/documenttext.aspx?service=Find&rs=WLW8.03&cnt=DOC&mt=LawSchoolPractitioner&n=1&fn=_top&sv=Split&rlti=1&cxt=DC&rlt=CLID_FQRLT4051294&ss=CNT&scxt=WL&vr=2.0&rp=%2fFind%2fdefault.wl&cite=16+Const.+Comment.+269#F14112639162 ). The most authoritative statement of the idea that the Second Amendment contains a “purposive preamble” appears in Laurence Tribe, American Constitutional Law 299 n.6 (Foundation Press, 2d ed. 1988). A much shorter version of this precise footnote, which appeared ten years earlier in the first edition of Tribe's book, did not include such a statement. Tribe incorporated this thought in the much longer note that appears in his second edition in direct response to an article by Don Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204-73 (1983) ( http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.03&referencepositiontype=S&serialnum=0101992365&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=273&db=1192&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner ). Apparently Tribe felt the necessity of thwarting the ideas of this leading Standard Modeler and so added this statement, which emanated from his own ideological predilections rather than from any additional research into the subject." Robert E. Shalhope, To Keep and Bear Arms in the Early Republic, 16 Const. Comment. 269, 275 (1999). Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [EMAIL PROTECTED] >>> "Raymond Kessler" <[EMAIL PROTECTED]> 4/1/2008 4:34 PM >>> Am researching the origins of the collective rights approach to the 2nd Amend. Would appreciate help with the following 2 questions (with sources or links to sources if possible).What is the earliest U.S. (state or federal) judicial opinion utilizing the collective rights approach? What is the earliest law review or periodical article on the collective rights approach? Thanks! Ray Kessler
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