The Second Amendment and the Living Constitution

Eugene Volokh has an excellent essay on the Second Amendment – and I think it’s obvious that I wholeheartedly agree with him.

A friend of mine recently got her class “A” gun license here in Massachusetts – a process which took several months, and included classes & letters of recommendation from quite a few people. That sort of thing disturbs me; that it takes all this effort to get a “license” to own something that you are constitutionally guaranteed the right to own.

In any case, Eugene wraps up his essay beautifully:

So under all these approaches, the right to bear arms should be read as forcefully today as in 1791 – or perhaps more so. What then do people mean when they say that “evolving standards” should lead courts to reject the individual rights view of the Second Amendment? Seems to me there’s only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls – but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don’t like a constitutional right, your honor? You don’t think it makes sense today? No problem! Just evolve it out of existence.

“The very purpose of a Bill of Rights,” Justice Jackson wrote in the 1943 flag-salute case, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Words to live by, it seems to me.

Indeed.