Frank Ettin, ....I think you're missing a point:...
I deal in reality. The following is reality (in summary -- I've written in depth on these points and won't repeat all the detail here):
- As I've discussed many times, the Constitution provides that issues or disagreements about what the Constitution means or how it applies are the province of the federal courts. It is also well settled that constitutionally protected rights are subject to limited governmental regulations.
So the RKBA will be regulated. The limits of constitutionally permissible regulation of the RKBA will be discovered as cases are litigated. While we have a theoretically good foundation with Heller and McDonald, we've gotten some lousy court of appeal decisions. But Second Amendment jurisprudence is in its infancy, and we can anticipate considerable evolution in the scope of permissible regulation. And for that reason we need to approach Second Amendment litigation wisely and prudently to minimize the development of more unsatisfactory precedent.
- The Declaration of Independence was essentially a public justification for our breaking up with England. Unlike the Constitution, it is not law.
The philosophical points you raise are, perhaps, best addressed in the political arena. Whether they will get much traction there is an open question.
- Remember that the underlying causes of the American Revolution were economic.
At the time of the Revolution, the Thirteen Colonies were in their own rights significant economic and political entities, and they had been for some time. Each was substantially self governing, subject to the oversight of the Crown. Each had its public administration infrastructure. The independent economic prosperity of the Colonies in fact laid the foundation for the Revolution. England wanted money, and the economic prosperity of the Colonies made them an attractive revenue source. And so England started to increase its economic demands (in the form of taxes and control of commercial activities) to the point that many of the more successful colonists, like many of our Founding Fathers, were motivated to resist the English attempts at stifling colonial prosperity. And colonial resistance to English economic policies led to English political constraints.
...Would the Founders have abided by a law that said they did not have the right to "alter or abolish" their government?..you seem to be arguing that this system is the proper system, and is what the founders intended when they crafted the Constitution....
It's fatuous to believe that the Founding Fathers all agreed on exactly what they meant and how the Constitution would apply. The reality was that although fifty-five delegates attended the Constitutional Convention in 1786-87, only thirty-nine signed the proposed Constitution. Thirteen left early without signing, and three refused to sign. There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.
The Founding Fathers well understood how people do disagree and how politics works. They were active, mostly successfully, in the commercial and political world of the time. Many were lawyers. A few were judges. Almost all were very well educated. They were generally politically savvy. Many were members at various times of their home colonial assemblies or were otherwise active in local government or administration. They were solidly grounded in the real world and knew how to make things work in the real world. That is why they were able to bring our nation into being.
The Founding Fathers left us with --
- A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);
- Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;
- Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;
- A Constitution that could be changed, albeit with difficulty.
So indeed the system left us by the Founding Fathers offers built in provision for altering it. We elect our representatives and can influence, through the exercise of political power.
And the judiciary, as other branches of government, is still subject to checks and balances. So if a judge's decision is unsatisfactory, the ball might well be in the court of the legislature.
It's not the proper role of a court to decide if the result is good or bad. It's the job of a court to apply the the law and applicable precedent to decide the case. It can sometimes be argued that in a given case the law was not properly applied, or the result of applying the law and precedent can in fact be unsatisfactory to some. We could think that a law is a bad idea or bad public policy, and that law could be entirely within the power of Congress to enact and perfectly constitutional. Being constitutional does not guarantee that a law is a good thing.
I often cite the case of
Kelo v. City of New London, 545 U.S. 469 (2005) as an example of this phenomenon. It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a
Kelo result. "Checks and balances" at work.
And if we aren't getting the result we'd like it's not the fault of the system. It's a fundamental error to believe that it’s about "systems" -- that there is some system, any system, which will automatically produce the right results.
We live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give us to promote our vision of how things should be, others may and will be using those same tools to promote their visions. The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we to elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.
We are "the system." We elect our representatives. We have the final say at the ballot box. If some of us aren't happy with how things are working it means we're failing to get enough people to go along with our values and beliefs. We're failing to inspire.
The Constitution does not bestow wisdom. It's up to the body politic to be wise and to use the processes provided for in the Constitution to make wise decisions and promote wise policies. A "system" can't be wise. A "system" is just a mechanism. It is up to those using the mechanism to use it wisely.
If we can't effectively use the existing legal and political process to better further our interests and values --
"The fault, dear Brutus, is not in our stars, But in ourselves ..."