Thoughts on an "evolving constitution"
I'm beginning editing on my 2d Amendment documentary film (may get around to posting some clips, but that will take a while). In one clip, Prof Gene Volokh of UCLA law (and host of The Volokh Conspiracy makes a very interesting point.
In opposing the individual rights view (and sometimes in trying to assail/defend non-RTBA doctrines) some have advanced the idea of the "living constitution," that is, that the document somehow changes meaning over time (and in this context can change meaning so dramatically that X becomes non-X).
Gene says he can't agree...the very purpose of having a written constitution is to bind yourself by a specific past decision of the people. (And it might be pointed out that the constitution's requirement for amendments -- 2/3 of both Houses plus 3/4 of the States -- demonstrates that any changes were meant to be formal and reflect, not a vague perception of consensus, but a formal, democratic, decision supported by an overwhelming majority of Americans). But, he asks, IF we were to take that view, how would we decide whether the Constitution had changed or evolved?
We could look to decisions of Congress (the most doubtful, since the BoR was meant to restrain Congress). But in the Firearm Owners' Protection Act of 1986, in the preamble, Congress specifically found that the 2d amendment was an individual right. There are other similar findings in other legislation, all supported by a Congressional majority vote. So Congressional decisions cannot support a view that the Constitution has "evolved" so as to exclude a right to arms. If anything, it would suggest that the Constitution "evolved" toward a stronger individual rights view.
Maybe decisions of State legislatures, or the people of the States as a polity? He points out that the overwhelming majority of State constitutions have right to arms clauses, and almost all of those point to individual rights. All the changes in these over the last 20-25 years have been to make the provisions more clearly individual rights related. So we can't cite decisions of the States, or the people of the States acting as such, either. If anything, this, too, suggests that the right would have "evolved" toward a stronger individual right.
Maybe the people at large? Without formal vote, this is hard to calculate, but he points out all polls show a great majority of the American people believe they have an individual right to arms. So the three ways we could calculate whether the right has "evolved" all point to it evolving toward a stronger right.
The only approach, he suggests, where one could argue that the right has "evolved" the other way, is to say the heck with Congress, State legislatures, the people of the States, or the people in general -- the views of judges, the legal elites, etc., have "evolved" against an individual rights. This, he suggests is the one completely impermissible approach to constitutional "evolution."