Even if one subscribes to the living breathing document theory (which I don't)...
That the Constitution is subject to judicial interpretation is beyond dispute, as intended by the Framers, who understood and anticipated this. Scalia acknowledges such in
Heller, as ‘original intent’ is not evident, he bases his opinion on ‘original understanding,’ where ‘a variety of legal and other sources [are used] to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation.’ (See
DC v Heller, 2008.)
Indeed, the word ‘individual’ is nowhere in the Second Amendment, yet in
Heller the Court interprets an ‘individual right’ nonetheless. If two hard-core arch-conservatives such as Scalia and Thomas agree that the Constitution is subject to interpretation/judicial review and infer an individual right where no such right is mentioned in the Original Text, I fail to see how any conservative of any stripe can still maintain the position that the Constitution is not subject to interpretation.
...it's hard to interpret "shall not be infringed" as anything but...well...shall not be infringed.
Heller did not address the issue of regulation, as that was beyond the scope of the review. Scalia does note, however, that the Second Amendment is no different than any other enumerated privilege in the Bill of Rights, in that it is subject to limitations:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
DISTRICT OF COLUMBIA v. HELLER
The sensible middle position is that you should have the ability to own a gun in the same context that you are able to own a car- only after you've been trained, licensed and insured to do so.
Is one required to be trained, licensed, or insured to give a speech, practice a religion, or peaceably assemble? Is one required to wait three days before he may give a speech so the authorities may review the content of the speech for ‘dangerous ideas’?
Of course not. Yet the same is being required of those who wish to exercise their Second Amendment rights, determined an individual right by the Court.
Again, that one may use a firearm to harm someone or himself is not legal justification to preempt that right.
As with abortion, where the solution to the problem is not bans or restrictions, firearm violence is a social and cultural issue requiring difficult choices, not simple Band-Aide for a brain tumor remedies.
