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Second Amendment as an illustration

A thought just popped into my mind, aided perhaps by a rising ethanol level (which might cast some light upon the brain/mind differentiation, but I digress...). The right to arms for some reason (perhaps that it remains controversial, perhaps that it is an area where traditional liberal-conservative thought tends to reverse itself) is place where manners of constitutional interpretation are highlighted. To make some rough distinctions, we can posit:

Natural rights approach (perhaps the Originalism of the Originals?): individuals have certain rights, which are ascertainable by logic. Humans can reason and communicate, hence they have freedom of expression. The need to defend themselves (particularly if government fails to do so) indicates that self defense is the most fundamental of rights, and hence that there is a right to have the physical means of self-defense. This would have made great sense to the framers (remember that the bill of rights takes the rights as a given ... it does not proclaim that free speech or ownership of arms is now and henceforth a right, it says that Congress shall make no law abridging the first right, nor infringe the second, in each case presupposing the right in question) but wouldn't be an argument you'd make in court today. If you meant to win, I mean. Individual rights view here wins out.

Originalism (which can be split into original intent, what did the Framers mean by their writings, and original understanding, which did the American people understand when they ratified those results). A form of legal positivism, which implicitly treats the rights in question as created by the writings or the understanding. The meaning of a right, like the meaning of a statute, is derived from the thoughts and purposes of its drafters or the decisionmakers who validated the decision. Again, the individual rights view wins, unless one is willing to go to extraordinary lengths (i.e., be less than intellectually honest) to evade that result.

I don't quite know what to entitle a third approach. It is not natural rights theory, nor true positivism. I suppose it amounts to "there is no constitutional right where I do not approve of the result." Under that, collective rights may win out. I'd suggest that this flunks one core standard of constitutional interpretation -- the interpretative tool must yield results independent of the interpreter's policy desires. Otherwise (1) courts are indeed non-elected policymakers and (2) the constitution is no more than the passing and personal desires of a court.

There is a fourth approach, I suppose, that of the idea of an evolving constitution. Prof. Volokh, while rejecting this idea, points out that (a) if we look at how the Congress has viewed the right to arms, it has several times in legislation stated it is an individual right; (b) if we look at how States have viewed it, all changes to State constitutions have made it more clearly individidual; (c) if we look at how the people at large view it, all surveys show a large majority believe they have an individual right to arms. That leaves only (d) the socio-economic class that includes judges don't think it is individual, but this last class view is hardly something one can base an ethical view of the constitution upon.
There is the variant of this discussed by Prof. Amar, who notes that meanings of words change over time -- but he also notes that the meaning of "right to keep and bear arms" seems to have shifted, not toward a collective right, but toward an individual right (vide the fact that in the 14th amendment period, the phrase "bear arms," which sounds quite military, came to be used in a clearly individual right sense).

· Second Amendment wording