Replies

"On the contrary, the 2nd Amendment is clear. It's the 9th, 10th, and 14th that are harder to interpret."

I agree, but if you wouldn't mind I'd like to narrow that a bit further.

It really is the 9th Amendment that is difficult to interpret. You certainly have reason to bring the 10th and 14th amendments into the picture here, given that so many path-breaking decisions of the Supreme Court over the past several decades have used those two as justification for rulings handed down. But have any recent cases of note clarified the 9th Amendment? It's there, so it must have meaning, but I don't recall any significant cases which used it.

The literature pertaining to the 2nd Amendment is voluminous. So too is the body of written jurisprudence over the last 150 years or so. Of the recent court decisions regarding the RKBA, both the Emerson decision by the 5th Circuit and the Silveira decision by the 9th Circuit have one thing in common with every other case on the RKBA: neither of them (and indeed, none of the cases from the last century) address the last four words: shall not be infringed. The reason is simple. Every judge who has ever read those words knows exactly what they mean - that every gun law in the United States is unconstitutional.

neverdem:

"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions," noted Sanford Levinson of the University of Texas at Austin School of Law in 1989 in "The Embarrassing Second Amendment" in the Yale Law Journal.

On the contrary, the 2nd Amendment is clear. It's the 9th, 10th, and 14th that are harder to interpret.

St Jacques:

I agree, but if you wouldn't mind I'd like to narrow that a bit further. It really is the 9th Amendment that is difficult to interpret. You certainly have reason to bring the 10th and 14th amendments into the picture here, given that so many path-breaking decisions of the Supreme Court over the past several decades have used those two as justification for rulings handed down. But have any recent cases of note clarified the 9th Amendment? It's there, so it must have meaning, but I don't recall any significant cases which used it.

The 9th is being used [without being refered to] in any case dealing with our unenumerated rights to privacy.

Niether the 9th, 10th, and 14th are hard to interpret, if your start with a Constitutional "presumption of liberty", as per Barnett:

"--- Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten "police power" of the states.
All along, with sporadic exceptions, judges have ignored the Ninth Amendment. --"

Sample Chapter for Barnett, R.E.: Restoring the Lost Constitution: The Presumption of Liberty.

Address:http://www.pupress.princeton.edu/chapters/i7648.html