So the broader issue is whether the Federal Constitution protects un-enumerated as well as enumerated individual rights.
Right -- and the problem is there is absolutely no plausible,
remotely objective method for judges to identify those unenumerated rights.
Given that the Federal Government was supposed to be a government of strictly limited, enumerated powers
only, it was barred from doing
almost everything except those things for which it was granted express authority. So what are we supposed to do -- assume that everything it couldn't do from day one is an "unenumerated right?", then incorporate them as limitations on the states by the 14th Amendment? That clearly can't be the right answer, because then states couldn't really do anything. So what you end up with is judges deciding -- based on nothing more than their own personal morality -- what these unenumerated -- but "fundamental" -- legal rights are.
Whether you agree or not, the SCOTUS has expanded the Constitution's reach to protect natural rights not enumerated therein.
I don't agree, though I realize that SCOTUS has indeed done that with respect to a relatively few rights in cases I believe were wrongly decided. But that is no excuse to make a bad situation worse, and encourage the Supreme Court to keep doing the same and inventing even
more unenumerated rights as it sees fit. Because we're starting to see that now with lower courts inventing new "rights" to shut down completely Constitutional actions by the President, simply because they don't like them. And the very next step -- and we're not far from it at all now -- is for the Supreme Court to start recognizing unenumerated
positive rights, like "the right to a college education", the "right to housing" the "right to freedom to cross borders", etc., etc. etc.. And at that point, we'll have lost our Republic, and essentially be ruled by judges rather than by elected representatives.
To me that's a good thing - why should the state forbid a couple from practicing contraception? And, likewise, why should the state make it impossible for a citizen to have the means to protect his home from intruders? To me, the "living Constitution" has expanded the protection of human liberty from encroachment by the state.
And to me, that is an absolutely terrible thing. It amounts to saying you'd rather have judges deciding what our rights are than...us.
And honestly, I can't believer you played the
Griswold/contraceptive card. You do realize that case was a complete set-up, right? That the law wasn't enforced because it wasn't supported by the people anyway, so they had to stage an arrest with a compliant DA to create a court case to challenge the law? The solution already is built in to our system. When "the people" truly want to recognize a completely new right, they'll do it via legislation or some other
representative means. What you want is for
judges to make up new rights even when most people
don't support them. That is
fundamentally undemocratic.
The narrow issue here is whether the individual RKBA is an enumerated or un-enumerated right. Heller says the former, and I believe that ruling stands on very fragile ground, and will likely be overruled in future years. But the right can still be protected as an un-enumerated right. Will a liberal SCOTUS agree? That's the risk -
Oh come
on. You can't possibly believe there is any chance in Hades that a liberal SCOTUS would strike down Heller, but then recognize an individual right as an "unenumerated right".
Nobody thinks that is remotely possible -- it is a non-issue.
ETA: I have to add here that the argument that the individual legal right should be found not in the Second Amendment, but as an "un-enumerated right" is just horrible as a basic matter of legal reasoning. We already have an Amendment, the Second, that deals squarely with the right to keep and bear arms. If you're going to assume that the Framers did not intend that Amendment to protect
individual gun owners from the federal government, but rather only state militias, then you'd actually be going
against their intention by deciding that they really meant to protect that right as an "unenumerated" right. The Second was the clear place to protect individual gun rights, so if it isn't there (which I think it is), then inventing it out of nothing can't be justified.
But the process of revoking a statute is very different than overturning a court decision. The former requires the action of the peoples' elected representatives, who must ultimately account to the voters for their decision.
Striking down
Heller doesn't accomplish anything on its own. You'd still need legislative bodies to pass actual gun control laws. And the only way those legislative bodies are going to pass those laws is if they are
already willing to be accountable to the voters in the passage of those restrictions. You're literally accomplishing nothing because as soon as they have the votes to pass gun restrictions, they inherently have the votes to overturn/amend your codification of Heller. Seriously,
think about what you're saying here. Congress isn't going to pass a new gun control law because of the codification of Heller? That makes zero sense.
And while the codification remains on the books, it represents a practical check to the behavior of a court, since most judges recognize their job is to interpret and apply the law, not second-guess political decisions.
Unless those decisions are about contraception, abortion, immigration, trannies in the military, or any other political decision with which activists judges who believe in a "Living Constitution" happen to disagree.
