The second, known as the "sophisticated collective right model", held that the Second Amendment recognizes some limited individual right. However, this individual right could be exercised only by actively participating members of a functioning, organized state militia.Kenneth A. Klukowski, Armed by Right: The Emerging Jurisprudence Of The Second Amendment, 18 Geo. Mason U. Civ. Rts. L.J. 167, 176 (2008). Some scholars have argued that the "sophisticated collective rights model" is, in fact, the functional equivalent of the "collective rights model".George A. Mocsary, Explaining Away the Obvious: The Infusibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113, 2133 (2008). Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the "sophisticated collective right model".Kenneth A. Klukowski, Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause, 39 N.M. L. Rev. 195, 200 (2009) (citing United States v. Wright, 117 F.3d 1265, 1273–74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942)).
