We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad... Undoubtedly some think that the Second Amendment is outmoded. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
The virtue of a democratic system with a [constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.
[T]he enshrinement of constitutional rights
necessarily takes certain policy choices off the
table.... Undoubtedly some think that the
Second Amendment is outmoded in a society
where our standing army is the pride of our
Nation, where well-trained police forces
provide personal security, and where gun
violence is a serious problem. That is perhaps
debatable, but what is not debatable is that it
is not the role of this Court to pronounce the
Second Amendment extinct.
As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.
In Torcaso v. Watkins, (1961), we did indeed refer to ‘secular humanism’ as a ‘religion.'
Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of the political community, not an unspecified subset... The Second Amendment extends, prima facie, to all instruments that constitute bearable arms... The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.'
There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
In the eyes of government we are just one race here. It is American.
The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.
The basic problem is simply that the Congress has become professionalized. It has interest much higher than ever existed before in remaining in office. It has a bureaucracy that is serving it. It is much more subject to the power of individualized pressure groups as opposed to the unorganized feelings of the majority of the citizens.