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Comment by acdha | Hacker News Reader

> At least in the United States, sadly that ship has sailed as SCOTUS precedent repeatedly emphasizes the 2nd Amendment as a purely individual right.

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.

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The original interpretation is, quite frankly, largely irrelevant, because the entire BoR was written in the context where the chief concern was guarding the rights of states against the federal government. With 2A, they wanted to make sure that the feds couldn't suppress state militias, as the British tried to do. When it came to the rights of citizens against their respective state governments, that was what the state constitutions were supposed to protect.

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.

An important thing to remember is that the discussion was about state militias being able to resist a federal army. Being in the militia was both a privilege and a responsibility - they had problems with people skimping on equipment & maintenance in addition to training – and that has to be understood in the context of the Whigs’ concerns about standing armies full of property-less men. They wanted militias tied to the local community, with their own property at stake, which is a rather different starting point than the late 20th century maximalist “no requirements, no restrictions” position.

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 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.

And, also, the prefatory clause of the text of the Amendment itself.

Back when the Constitution was written, the militia was "all able bodies males" who could be called to service. It wasn't a formal organization like the military today. It was basically all male citizens.

So that actually aligns with it being an individual right.

> Back when the Constitution was written, the militia was "all able bodies males" who could be called to service

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.

This is leaving out a lot: the militia usually had equipment requirements, was often restricted to men of property, and had training requirements. It especially was not all male citizens - for example, even in the north where the militia didn’t do slave patrols there were often racial restrictions excluding free black men, and the Whigs were big on restricting it to property owners out of fear of groups of armed unattached men being swayed against the local community.

https://global.oup.com/academic/product/a-well-regulated-mil...

https://uncpress.org/book/9780807896419/citizens-in-arms/

True, but that eliminates people who belong to groups that we no longer recognize at all. We don't recognize slaves at all, so that slaves can't own guns doesn't matter. Nobody would complain about a law that makes it illegal for slaves to own guns: there are no slaves. Laws that blacks or women are somehow different and thus cannot own guns might be historically supported, but today we elevate those groups to the same level as white land owners, and so they get the rights of white land owners.

Sure but we also interpret all other Constitutional rights as belonging to everyone regardless if they were unjustly restricted in the past.

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.

It only sounds weird because you reworded it to remove the main points: even if you ignore the portion about the groups of people who were excluded, you still have the militias being groups with rules and requirements rather than a free-for-all.

Rules required to make sure the militia was “well regulated” (functioning properly). But the rules (other than race, money) only excluded those without equipment, everyone was still a part of the militia otherwise.

You’re leaving out the other parts, most importantly the training and the concept that you were working in a group rather than acting as a lone wolf. Any remotely historical reading does not preclude safety standards and, indeed, American history is full of those and they were not considered controversial prior to 2008.

I'm not sure you understand what the militias looked like during the time the Constitution was created. It was basically "calling all men to service". There was no standing army, membership was fluid and as long as you were able to fulfill the requirements of physical health, bring a weapon, be willing to follow orders.

Yes: it would not take a legal genius to say “these words were included for a reason, here are period discussions confirming that and two centuries without serious question”.

> With the current court, yes

Given the ages of quite a few justices, the current court will remain mostly unchanged for decades to come.

Barring court packing.

FDR got his pee-pee wacked by his own party for trying to pack the Supreme Court back in the 1930's.

It's a non-starter.

That’s far from a given. The current court’s willingness to just ignore long-standing precedent to take away major rights, the stolen seat, and Thomas’ massive conflicts of interest (not just Ginny organizing the insurrection but also receiving money from groups going before the court) have permanently damaged faith in an institution which relies on authority granted to it on the trust that it not do things like that (note how much more limited the court’s direct constitutional authority is).

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.

No, no, no.

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.

I find it interesting that you’re talking about hyperbole but offering only emotional rhetoric.

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.

Not legitimate? It was seen as blocking some of the most progressive policies helping the desperately poor during the Great Depression.

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).

Again, please note what we’re talking about: legitimacy of the court itself.

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.

there was no question that any of the judges hadn’t been properly appointed

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.

>the greatest economic collapse the US has ever known?

Jpow: Hold my beer.

It's not the 1930s. It's a very different country with different politics.

Precedent itself took a beating on Friday.

Yes and no. For several decades even liberal jurists have made a joke of Justice Douglas' now infamous "penumbra" explanation in Griswold v. Connecticut that undergirds a general right to privacy. I remember thinking as a law student that every chuckle, every eye roll, especially by liberal leaning students and professors, was another nail in the coffin of that whole line of jurisprudence.

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.)

The fundamental problem with "penumbras" is that once you allow that as a way of reasoning, pretty much anything goes. At which point the Supreme Court becomes an insanely powerful body for something unelected and with a lifetime tenure, and SCOTUS nominations become worthy of scorched earth mode of political warfare.

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."

or just pass a bill

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