I understand the need for interpretation when new and unexpected things arise.
However, let me quote one of my favorite dissents, by 9th Circuit Judge Alex Kozinski in the decision to deny an en banc
re-hearing of the Silveira v. Lockyer
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon - a sawed-off shotgun - was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
The majority falls prey to the delusion - popular in some circles - that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth - born of experience - is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history - Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few - were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The sheer ponderousness of the panel’s opinion - the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text - refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it - and is just as likely to succeed.
From that same decision, the dissent of Judge Kleinfeld:
I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.
The panel opinion holds that the Second Amendment “imposes no limitation on California’s (or any other state’s) ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms” protects that “right” in the same fictional sense as the “people's” rights are protected in a “people's democratic republic.”
Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.
The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative, but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: “entering a crowded cocktail party and looking over the heads of the guests for one's friends."
Much of the panel decision purports to be an attempt to figure out what the word “militia” means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the “militia” consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term “militia” in the Second Amendment meant, and means, "all males physically capable of acting in concert for the common defense.” We are an inferior court, bound by this holding of the Supreme Court.
The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as "bear," which itself means only to carry arms as part of a military unit."
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden.
The case is here
if you want to read the whole thing, but those two say it about as well as I've ever seen it put.