I agree with the statement that "[t]he words in the Constitution and Amendments must be given the same meaning they had when ratified" so long as it is recognized that some of the words and phrases in the Constitution delegate to future interpreters the duty to interpret and apply them in the context of the facts, conditions and standards prevailing at the time of the future interpretation. Take for example a statute adopted in 1700 that requires all parents to provide their children with a "suitable education" and "appropriate health care." While the words might have the same literal meaning in 2000 as they did in 1700, changing standards and circumstances might require that parents behave differently in 2000 than than they did in 1700 in order to comply with the statute. I interpret the term "due process of law" in the Fourteenth Amendment in the same fashion. While the literal meaning of the term may not have changed since the 1860's, its practical meaning has changed as conditions and standards have changed.
Among other arguments, I would attack the disparate regional laws infringing the individual right protected by the 2nd Amendment through the 14th Amendment's prohibition against a state's depriving a citizen of the liberty to peaceably act to protect himself because it cannot be argued that a law enforcement agency is either able or obligated to protect him, especially since it cannot act against a potential criminal until a criminal act has been performed, and it has been historically unable to prevent criminal acts with handguns or criminals from having handguns.
If the Fourteenth Amendment's due process clause is interpreted to impose a limitation on the power of states in the area of their substantive laws (as opposed to their procedural laws), then the due process clause might be interpreted to require states to comply with the Second Amendment. The extent to which the application of the Second Amendment would limit the power of states to adopt anti-gun laws is another matter.
The Supreme Court's experiences with "substantive due process" have often been very controversial (e.g., the Lochner era, Roe v. Wade) and there are many people who believe that "substantive due process" is a misuse and an impermissible construction of the due process clause. However, it seems clear that every current member of the Supreme Court believes that the due process clause includes within its meaning a limitation on the states' substantive laws and practices. (See, e.g., Boy Scouts of America v. Dale (2000).)
Agreed. Good example.
If the Fourteenth Amendment's due process clause is interpreted to impose a limitation on the power of states in the area of their substantive laws (as opposed to their procedural laws), then the due process clause might be interpreted to require states to comply with the Second Amendment. The extent to which the application of the Second Amendment would limit the power of states to adopt anti-gun laws is another matter.
The Supreme Court's experiences with "substantive due process" have often been very controversial (e.g., the Lochner era, Roe v. Wade) and there are many people who believe that "substantive due process" is a misuse and an impermissible construction of the due process clause. However, it seems clear that every current member of the Supreme Court believes that the due process clause includes within its meaning a limitation on the states' substantive laws and practices.
Well said, and I agree with the bolded supposition whether it is true or not.
It may be well to note that when the SCOTUS overturned the repugnant state laws substantively disenfranchising black voters in the early '60s, it left it to those states to enact their own procedural laws to reapportion their representation under what came to be known as the "one man, one vote" doctrine. A similar attack and resolution was when the SCOTUS overturned states' capital punishment laws several years later. Their legislatures were left on their own to come up with new procedures that ensured that application of capital punishment was not repugnant to the Constitution.
I do have to ask: What conditions are you referring to? What has actually changed that would give rise to a different understanding of the meaning of "due process"?