Living Constitution dilemma
According to a recent survey, 64% of Americans believe that a city handgun ban violates the Second Amendment, far outnumbering the 26% who either don't believe in an individual right, or reason that a ban wouldn't violate it. Even among non-gunowners, the 2A prevails by 3/2, or 50% to 35%.
This of course poses problems for the concept of a "living Constitution," at least one that would consider the beliefs of the American people (or the States, or Congress). A concept that ignores all those is all to clearly one of "the Bill of Rights contains only things that a sitting judge likes."
Hat tip to Dan Gifford...
Well, of course, the "living Constitution" concept sort of begs the question: if the Constitution is so malleable, why do we still need it?
Posted by: C. Cox at June 23, 2008 06:48 PM
to C. Cox, they need the constitution so they can say it, what it is at the moment, is in the constitution. isn't that obvious :)
Posted by: Rich at June 24, 2008 11:51 AM
The dubious nature of the "living document" theory is exposed by the Constitution itself.
Why would the people ratify a fluid constitution and yet in it create a congress with limited and enumerated powers? Why would they allow the courts to define the law and yet explicitly reserve the power to modify the Constitution to the people?
As David points out, the continued belief in the original intent of the Second Amendment is testament to the fact that the Constitution is the express written will of the people (the Kelo decision not withstanding).
When certified as such in the Heller matter, expect Brady et al to begin campaigning for an amendment. They know without a revision of the Second Amendment that all gun control laws are in jeopardy.
Posted by: Guy Smith at June 25, 2008 10:00 PM
Actually, I think American society is in jeopardy. I do not expect the Heller decision to be beneficial to the citizen or consistent with "shall not be infringed".
I can hardly wait to see how words are parsed, substituted and redefined to maintain illegitimate state power, while still insisting the constitution isn't being raped as in Kelo.
Posted by: straightarrow at June 25, 2008 10:34 PM