I'm not going to repeat what the role of the US Supreme Court is, but it is not to create laws.
It's is to interpret them according to legal method.
Not to follow flights of fancy and create meanings which aren't there.
Especially since it's power of judicial review is not explicitly mentioned in the US Constitution! The power of judicial review was formally established in the 1803 Supreme Court case Marbury v. Madison, 5 U.S. 137 (1803).
In contrast, the US Constitution makes it clear it deals with matters of common defence. This is set out in the preamble. In other legal systems, the preamble, or whatever you wish to call that statement of intent, is considered important because it sets out the intent.
So if something starts with "A well regulated Militia, BEING NECESSARY TO THE SECURITY OF A FREE STATE", that might give you a clue that the text relates to the militia. This is very true if it is silent on other purposes.
I'm not going to get into how many times common defence terms, such as, but not limited to Army, navy, militia, etcetera are mentioned in the Constitution. But I will tell you how many times personal uses of firearms, such as self-defence, are mentioned.
Not once. Zero, never.
And since the concept of the militia as conceived by the founders is pretty much non-existent, the Second Amendment has fallen victim to desuetude:
In law, desuetude is a doctrine that causes
statutes, similar legislation, or legal principles to lapse and become
unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete. It
is the legal doctrine that long and continued non-use of a law renders
it invalid, at least in the sense that courts will no longer tolerate
punishing its transgressors.
So, Scalia, the buffoon that he was, stated incorrectly:
Undoubtedly some think that the Second Amendment is outmoded in a
society where our standing army is the pride of our Nation, where
well-trained police forces provide personal security, and where gun
violence is a serious problem. That is perhaps debatable, but what
is not debatable is that it is not the role of this Court to
pronounce the Second Amendment
extinct.
It most certainly is the role of the court to declare it extinct. Unfortunately, Scalia wears his ignorance with pride with his statement about the standing army.
What, sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty.
Now, it must be evident, that, under this provision, together
with their other powers, Congress could take such
measures with respect to a militia, as to make a standing
army necessary. Whenever Governments mean to invade
the rights and liberties of the people, they always attempt
to destroy the militia, in order to raise an army upon their
ruins. This was actually done by Great Britain at the commencement
of the late revolution. They used every means
in their power to prevent the establishment of an effective
militia to the eastward. The Assembly of Massachusetts,
seeing the rapid progress that administration were making
to divest them of their inherent privileges, endeavored to
counteract them by the organization of the militia; but
they were always defeated by the influence of the Crown. --Elbridge Gerry, House of Representatives, Amendments to the Constitution
17, 20 Aug. 1789, Annals 1:749--52, 766--67
And can't forget this precursor to the Second Amendment from the Virginia Bill of Rights of 1776:
13. That a well regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free state; that
standing armies, in time of peace, should be avoided, as dangerous to liberty;
and that, in all cases, the military should be under strict subordination to,
and governed by, the civil power.
One of the evils the Second Amendment was supposed to protect us from was the establishment of a standing army, which Scalia should have known. It's a big topic in Anglo-American legal history.
So, it IS NOT the role of the court to improperly modify the US Constitution to its personal prejudices which have no basis in reality. It was bound by the text of the US Constitution as well as the precedent of US v Miller, 307 U.S. 174 (1939) which referred to Aymette v State (21 Tenn. 152 [1840]):
To make this view of the case still more clear, we may remark that the
phrase, "bear arms," is used in the Kentucky constitution as well as in
our own, and implies, as has already been suggested, their military use.
The 28th section of our bill of rights provides "that no citizen of
this State shall be compelled to bear arms provided he will pay an
equivalent, to be ascertained by law." Here we know that the phrase has a
military sense, and no other; and we must infer that it is used in the
same sense in the 26th section, which secures to the citizen the right
to bear arms. A man in the pursuit of deer, elk, and buffaloes might
carry his rifle every day for forty years, and yet it would never be
said of him that he had borne arms; much less could it be said that a
private citizen bears arms because he had a dirk or pistol concealed
under his clothes, or a spear in a cane. So that,
with deference, we think the argument of the court in the case referred
to, even upon the question it has debated, is defective and
inconclusive.
Miller's true holding was:
In the absence of any evidence tending to show that possession
or use of a "shotgun having a barrel of less than eighteen inches
in length" at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment, or that
its use could contribute to the common defense. Aymette v.
State, 2 Humphreys (Tenn.) 154, 158.
The Constitution, as originally adopted, granted to the Congress
power --
"To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions; To provide
for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render
possible the effectiveness of such forces, the declaration and
guarantee of the Second Amendment were made. It must be interpreted
and applied with that end in view.
This precedent should not have been overturned based upon nonsensical reasoning from outside the text of the US Constitution.
The ultimate point of this is that the US Supreme Court acted outside of its powers and as such, the cases coming from DC v Heller are not valid since the US Constitution is silent on what they created.
The only correct way to create "gun rights" would be to amend the US Constitution: not by judicial fiat.
