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Wrong order. When there wasn't a large active movement of citizens fighting for gun rights, the 2nd amendment was treated like an inkblot.
I totally agree, and this is a big part of why I oppose a bill of rights. Ultimately paper laws are worthless in the face of public will, and so creating constitutional protections that are supposedly above the normal democratic process actually just creates incoherent law as judges pretzel around provisions that don't have support. That and the inherently vague nature of these broad proclamations inevitably lead to a politicized judiciary.
It's not above the normal democratic process. Congress could repeal the bill of rights tomorrow if they put their minds to it.
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The entire point of having a bill of rights is to give rhetorical ammunition to the pro-rights side- sure, "rule of law" is always going to be "rule by law" to some degree, but even an explicitly worthless bill of rights (like, say, Canada's) still codifies how the public should ideally restrain its worst impulses and, much like guns, provides a common co-ordination point around which political action might crystallize.
Sure, this depends on a bunch of things- mainly that the past was freer than the present (though that's why bills of rights from countries that post-date the US' founding are all much weaker than the US's BOR in the first place!)- but giving [classical] liberals the ability to convict traditionalists and progressives of institutional and intentional unfairness is still a big deal especially when those factions start losing political ground, and gives those who might be in favor of returning to that stated ideal the same cover of "I just want to be treated fairly" that the corrupt enjoy when public opinion favors them.
I think the constitution is the wrong place to put rhetorical ammunition. If it were statutory law (like the Racial Discrimination Act which our government just suspends when it gets in the way), not so bad. There's value to making the government explicitly say "yes we are in fact abridging this right". But the current system rewards people for pretending that actually the second amendment wasn't meant for weapons of war or other similarly asinine things.
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On balance I do favour a Bill of Rights, but with a get-out - either something like the Canadian notwithstanding clause, or a Constitutional amendment process that is easy enough that a stable 55% majority who know what they want can amend the Bill of Rights in order to get it.
I think the ability of a court to ask the political branches "Are you sure your really want to do this?" is valuable because the nature of politicians is that sometimes they do stupid stuff for a quick headline, and the sort of rights that get put into Bills of Rights ought to be taken seriously. And the possibility of being overruled acts as a deterrent to judges who want to get their inner politician on.
Yeah this is fair. I wouldn't massively object to a statutory Bill of Rights that effectively just forces governments to own their decisions when they come into conflict with it.
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