Someone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, [i]including the constitutional right to bear arms[/i], shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery