> Which isn't to say that there aren't problems with recent Supreme Court decisions in this area
The problems aren’t with the recent decisions, but the 1930s ones. I don’t think there’s a decision on the books today that was more clearly wrongly decided than Humphrey’s Executor. I mean:
> The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.
The concession in italics should have made this a slam dunk case in the other direction. Enforcement of the law is the quintessential executive power. An English peasant in the 1600s could have gotten this one right. And where does the constitution say anything about Congress being able to create “quasi-judicial and quasi-legislative” bodies? The founders spilled all this ink to make three branches of government, but they really meant “j/k mix them all up into one unelected body if you want!”
That may be the case but it’s hard to look at recent rulings by the Supreme Court and direction of things happening within the executive as anything other than “anything for my friends, for everyone else the law”, whether that’s overturning Roe v Wade (and probably Griswald too sooner rather than later) or overturning the meaning of the words “well organized militia” in usurping the legislation’s ability to regulate private firearms.
Having different playbooks for players to follow depending on whether one team is for you or against is an interesting approach but one that’s been tried many times before and not one that will leave this country unified or in a better shape than it was found.
The examples you picked aren’t great to support your point. An alien with a copy of the Constitution and the Federalist Papers would easily discern that the document intends to afford greater protection to the right to bear arms than some right to bodily autonomy. As to these particular cases, even prominent liberals have questioned the soundness of the original decisions.
The Second Amendment says: “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.”
There is nothing complicated about the prefatory clause. If the amendment read: “News reporting, being necessary to the public debate of a free State, the right of the people to free speech shall not be infringed,” nobody would say that only professional news reporters have a right to free speech. They would say that “the right of the people to free speech” refers to a preexisting right that belongs to “the people” and the introductory clause provides the rationale for protecting it. The meaning isn’t even confusing when you recall that, at the time, militias were “bring your own firearm.” You don’t even need to open up the Federalist Papers and read Hamilton’s writing on European monarchs disarming their people.
Even Larry Tribe, who hates Trump and conservatives more than anyone in legal academia, came around to this view of the Second Amendment: https://hls.harvard.edu/today/why-i-changed-my-mind.
In contrast, there concededly is no “right of privacy” in the Constitution. Griswold turned to “emanations from penumbras” to find such a right. Nobody left of center would apply similar reasoning to find economic rights in the “emanations from penumbras” of the Contract Clause. This is such a case—Lochner—and folks on both sides agree it’s wrong. Griswold and Roe are just Lochner applied to sexual liberties rather than economic ones.
Even most left of center folks would struggle to write an opinion like Griswold and Roe today. They’re relics of an age when the Supreme Court was like a Yankee WASP version of Iran’s Guardian Council, ensuring compliance of temporal law with higher moral law.
An alien given a copy of the constitution knows that the constitution is not an enumeration of rights that people have, but carve outs specifically where the federal government can supersede the power of the individual and more importantly local governments.
The right to bodily autonomy as such is implicitly protected by the 9th amendment which states the constitution is not a set of positive enumeration of rights granted but instead limits placed on the power of government to take away all rights which are inherently ours.
Whether you find those rights because you want to look for it in the 4th amendment limits on governments right to invade your privacy is largely irrelevant.
I’ll also point out that regardless of the arguments on the 2nd amendment, historically regulation of arms was completely allowed and even today that’s allowed (eg you can’t get a nuclear weapon). And ignoring that is very interesting considering the current SCOTUS’s random “historic tradition” argument from conservatives.
You’re begging the question. Just because the constitution isn’t an enumeration of all rights doesn’t mean you can gin a right into existence just by saying it exists. You still have to identify the source of that right somewhere else. What is the source that establishes that “bodily autonomy” is a right that overrides the state’s power to regulate medications and medical procedures?
In any event, whatever right to bodily autonomy you think exists, the constitution is plainly more concerned about the right to bear firearms. The document devotes a whole amendment to firearms. But the most you can say about the right to bodily autonomy is that the constitution’s silence on it doesn’t preclude its existence.
> In any event, whatever right to bodily autonomy you think exists, the constitution is plainly more concerned about the right to bear firearms. The document devotes a whole amendment to firearms. But the most you can say about the right to bodily autonomy is that the constitution’s silence on it doesn’t preclude its existence.
What it says is that the constitution cares a lot about the power of the government to regulate the natural right to hold weapons and monopolize violence and how that monopoly works. Bodily autonomy comes for the natural born right of liberty from the government and I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
> What it says is that the constitution cares a lot about the power of the government to regulate the natural right to hold weapons and monopolize violence and how that monopoly works.
That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed." The operative language is no less emphatic than the First Amendment: "Congress shall make no law ... abridging the freedom of speech."
Again, nobody would adopt this tortured reading if the underlying right was speech. You'd have Tik Toks saying "shall not be infringed means shall not be infringed!"
> Bodily autonomy comes for the natural born right of liberty from the government
What is the source of these supposed "natural born rights?"
> I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
The federal government doesn't have the power to regulate medical care. But the state governments are not governments of enumerated powers. The state governments are successors of the British Parliament, and, "vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to ... public health, welfare and morals." Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41 (1966).
> What is the source of these supposed "natural born rights?"
The US Declaration of Independence lists it:
> We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness
But I’m not sure what you mean by “origin” and clearly these truths are not self-evident to some.
> The federal government doesn't have the power to regulate medical care
Tell that to the FDA, DEA and FTC.
> That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed."
And yet we’ve regularly infringed that right if that right is interpreted at the individual level. Also “arms” as understood in the constitution was specifically around personal weapons an individual could carry (muskets, pistols, swords). Not necessarily machine guns or weapons of mass destruction; even Scalia, one of the more conservative justices recognized this, writing in Heller that weapons that are “dangerous and unusual” (e.g., machine guns, bombs, or military-grade explosives) can be restricted.
Almost all firearms regulations rests on Wickard v. Filburn, which exploded the reach of the Federal government through the same kinds of assertions on effects on interstate commerce. You might like firearms regulations, but prior to the 80's it was entirely limited to paying a tax, and registering, and event the registering part took massive contortions by the Judiciary to reconcile into assumed Constitutionality, that I frankly still find questionable to this day.
If we’re going to overturn Wickard then let’s do that. But overturning just some of the consequences of that on idealogical grounds is super weird. Especially given that the biggest proponents of gun control were conservatives in the 70s once black people start getting organized and arming themselves. Now that it’s white supremacists doing it its ok again?