At least in the United States, sadly that ship has sailed as SCOTUS precedent repeatedly emphasizes the 2nd Amendment as a purely individual right. The so-called preamble discussing states and militias is now formally a dead letter.
With the current court, yes, but that interpretation only dates back to 2008. It would be much less of a reversal than we just saw for a future court to find that Heller was decided in error, and unlike Alito’s pretense of research there’s far more historical precedent supporting the collective interpretation going back at least as far as what the people drafting the second amendment discussed when they did so, as well as two centuries of general agreement on that point.
But, conversely, the very notion that the federal government would even be able to ban state citizens individually from possessing arms would be just as alien to the authors - the constitution simply didn't grant that kind of power to it back then, not even close.
OTOH the notion that the right to keep and bear arms was widely perceived as individual by the American society as a whole has solid historical basis. Here's one simple thing anyone can do to verify this: go look up the list of 2A-like clauses in state constitutions, along with dates they were adopted:
https://gun-control.procon.org/state-constitutional-right-to...
You might notice that the earliest examples often specifically talk about individual rights, e.g.:
“The right of the citizens to bear arms in defense of themselves and the State shall not be questioned” (Pennsylvania, 1790; Kentucky, 1792)
Such language becomes rarer over time, though, until we get to the end of the last century.
Here are two books which cover the period discussion and the structure of the militia in early America. It’s a surprisingly under-covered part of our history.
https://www.amazon.com/Citizens-Arms-Militia-American-Societ...
https://global.oup.com/academic/product/a-well-regulated-mil...
The other thing we have to remember is how much more powerful modern weapons are. At the time this was written there was no concept of some lone wolf being able to mow down a crowd - they’d be limited to a first volley with the loaded, not especially precise or long-ranged, weapons they brought with them before getting subdued. The founders were thinking in terms of armies because period firearms were most effective in large coordinated groups.
And, also, the prefatory clause of the text of the Amendment itself.
So that actually aligns with it being an individual right.
You are focussing on what the militia is (and erroneously pretend that it has changed over time; it still essentially the same thing, see, e.g., the codification in Title 10 of the US Code.)
But my point is about what the second amendment says the militia is necessary for, not what the militia is. Because that's the part that is relevant to the claim that the 2nd Amendment provides a right of the type that should be applied by the 14th Amendment to be protected against the states or rather than that explicitly has a role for the benefit of the states and to which the incorporation logic of the 14th Amendment does not apply.
Incorporation of rights protected against federal encroachment by the Bill of Rights against the states isn't universal (the requirement of indictment from the 5th Amendment is not incorporated, for instance), even for rights that are expressly individual rights. Incorporation is a separate question.
https://global.oup.com/academic/product/a-well-regulated-mil...
Your argument sounds like “we denied black people rights in the past so there for the 2nd amendment right doesn’t apply to everyone.”
Weird argument.
Given the ages of quite a few justices, the current court will remain mostly unchanged for decades to come.
It's a non-starter.
I think it’s quite plausible that there’d be significant public support for a reform package: pin the number of justices to the number of lower courts (we have 9 because that’s how many there were the last time that changed), add term limits for new justices, and adopting the ethics rules which other federal judges are required to follow.
You’re telling me the situation is more contentious than the 30’s when FDR was trying to pass his New Deal during the greatest economic collapse the US has ever known?
No. Your reply and your hyperbole suggest you don’t know much about the court’s history.
If you want to do better, note that I was talking about the legitimacy of the court itself, which is critical to an institution with a great deal of inferred power which is not explicitly spelled out. The FDR-era court did not have a justice whose legitimacy was dubious. Similarly, you could look at the various New Deal rulings for examples which completely broke with long-standing precedent or relied on cherry-picked history if you want to argue that those rulings were not unusual.
If it was legitimate why would you need to stack the court. A legitimate court’s decisions would be accepted, not changed by adding judges.
And the reason why the idea to stack was defeated was because it was viewed as a run around judicial independence (e.g. making it less legitimate).
New Deal proponents didn’t like those rulings but there was no question that any of the judges hadn’t been properly appointed, nor was there a huge break with past precedent on the same issue.
We’re living in a time where a majority of the court are acting in blatantly politicized ways, interfering on behalf of their party to prevent fair elections and flipping alleged legal theories whenever necessary to produce their desired outcome.
That is incredibly risky for an institution which has considerable power on the grounds that it not play games like that.
The same can be said today. Supreme Court appointments have always been political. Hell being "Borked" got its name from political games during Reagan.
Just because you don't think the process was "proper" doesn't change the fact they were all confirmed by the senate, as per the "proper" process.
Funny how many people complain about the politics of Supreme Court nominees only when it works against their own political views.
Jpow: Hold my beer.
Stare decisis is critically important, but when it comes to substantive law the fact is that historically decisions don't have staying power unless there's some internalization of the underlying legal logic. Liberal justices walked away from Douglas' phrasing almost immediately and were never able to replace it with anything.
I never had a problem with penumbras. It's as apt a description as anyone could conjure to refer to positive rights which exist by implication. And in fact usage of that term goes back to jurists far more esteemed than Douglas. Conservatives have long tried to use the 10th Amendment for similar effect, but that likewise has failed, and frankly as an analytic device "penumbras" works much better.
I used to think Kennedy's "dignity" reasoning in Obergefell v. Hodges was awkward, but upon closer inspection of broader legal theory he's actually drawing upon a vein of jurisprudence that could become a cornerstone of American legal theory in this area. It's much more well developed outside the U.S., but that doesn't mean it's not consonant with American jurisprudence. Yet I haven't seen many law review articles, let alone case decisions, try to further develop this principle. I think like penumbras, liberal jurists are inclined to roll their eyes at it, even though they haven't yet got to the point where they literally roll their eyes at it. I suspect Hodges will fall quickly, unless Gorsuch is able to refashion a theory based on sex discrimination much like he did for Title VII in Bostock v. Clayton County. (But that's a stretch as Gorsuch claimed to be using a plain text approach to statutory interpretation.)
Thing is, we have the constitutional amendment process for a reason - it is supposed to be a living document, true enough, but it's supposed to be updated through political process, not judicial. The problem, of course, is that the bar for amendments is so high that they become impossible in practice; but it's also impossible to fix that without an amendment. Thus, so long as enough political forces believe that the status quo is preferable to other options, it'll remain that way, and we'll see increasingly contorted Supreme Court decisions to reach goals of whatever party controls it at any given moment.
That leads to another problem, which is that SCOTUS, and the system as a whole, rapidly lose legitimacy. At this point, it already doesn't matter much whether any given decision is legally sound or not - it will be supported or opposed consistently along partisan political lines. The same people will castigate the judges for "inventing" rights in one decision, then blame them for not buying into the rights "invented" by other judges. I don't know how much longer we have left, but this passage from Federalist Papers (#22) comes to mind:
"... two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third."