@Maj. Bill Martin , we may rarely agree but I always appreciate it when you respond to my posts.
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.
I think where we differ is that you appear to have never gotten comfortable with the 14th amendment. The 14th is the most significant amendment since the first ten, since it fundamentally altered the relationship of the States to the Federal Constitution.
Before the 14th, it is indeed true that the States could confiscate your guns, throw you in jail for criticizing the government, and deny you the practice of your religion. Putting aside for a moment the question of enumerated rights vs. unenumerated rights, the Federal Constitution was largely irrelevant to the States; it certainly placed no brakes on a State's denial of one's fundamental, natural liberties.
With the 14th, the States became obliged to protect the same rights as recognized by the Federal Constitution (and let's not forget, the 14th itself created a new enumerated right - the right to the due process of law.) As a lover of individual liberty, I view the 14th amendment as correcting the original Constitution's most significant flaw.
As for limiting the Constitution's protections to enumerated rights, I must disagree with you. The foundation of the Constitution's protection of un-enumerated rights derives directly from the Ninth Amendment and the concept, trumpeted by many on this board, that we have a slate of inalienable natural rights. Among these are the rights of individual self defense, individual self-determination, and individual privacy. The latter two have been found to be Constitutionally protected though un-enumerated, and the first one has been found to be Constitutionally protected by reading out of the 2A its predicate clause as merely prefatory.
The Constitution's protection of human liberty is its greatest achievement. That some of that protection has been affirmed by judges does not bother me in the slightest. There is always the Constitutional amendment process if the people want to codify the abrogation of their liberty. And I am not persuaded that protection of un-enumerated rights is dangerous because a judge could find a un-enumerated "affirmative" right to, say, a good education. That is a slippery slope argument that I decline to accept as a principle of debate. Moreover, and significantly, an affirmative right to a specific material commodity or outcome is fundamentally different than the right to have one's individual liberty/autonomy protected from the state. It's not a slippery slope, it's a different slope entirely.
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
Again, we disagree. Obviously Heller found the 2A protective of the natural right, but just as obviously the four dissenters disagreed. As I've noted before, traditional notions of conservative statutory interpretation would not ignore the predicate clause.
The issue for me is the fragility of the Heller decision, and what to do about it. It seems to me that it will be far easier to overturn Heller on the basis of a mistaken view of the predicate clause than it would be if Scalia had found the natural right to be protected by the Constitution without regard to the 2A. To me the natural right's protection is far better grounded as an un-enumerated right under the Ninth Amendment. That way, the right's protection isn't jeopardized by the Constitution's own flawed language.
