The problem with constitutional interpretation is that we often confuse the question of what the law should be with the question of what the Constitution says the law is. Non-lawyers often confuse their policy preferences with constitutional interpretation. Actually, legal scholars do it too. Otherwise there would be no such things as 5-4 Supreme Court decisions.
Therefore, when you take a complicated issue, such as gun control, where there are decent arguments on both sides, and you throw in the task of trying to interpret a constitutional provision that is both (1) written in eighteenth-century language and (2) confusingly worded even for the eighteenth century, it’s easy to throw your hands up and say, “How the hell do I know?”
That’s what I sometimes do.
That’s why we essentially have to flip a proverbial coin and agree that the majority decision by the court is what the law is for now.
It’s the process that matters, not necessarily the end result, because even if there is some mythical objective absolute of what the law should be, it’s totally irrelevant to living in the here and now. We have to deal with what the law is within socially agreed upon framework and process — or else we end up with chaos.
Because we’re human, we’re guaranteed to make mistakes and we won’t get everything right — but the process has helped us do pretty good. Even when egregious mistakes are made (e.g. Dredd Scott, Bowers vs. Hardwick) they can be remedied.
I have my own ideological reasons for opposing gun control, so I think the Court made the right decision, but if they had ruled differently I would have dealt with it because it would have been a legitimately rendered decision according to our Constitution.
This goes along with my total inability to understand why so many people think “judicial activism” is a bad thing — justices should be active! It seems just like sour grapes when justices make decisions that someone doesn’t like.
One thing to keep in mind is that handguns, in their modern form, didn’t exist at the time of the framers.
I wonder if a conservative court will decide that everyone has the individual right to have nuclear arms.