I keep saying that the uninformed always attack decisions they see as activist as liberal abuses, but decisions, such as the Heller case, which was activist in expanding the II Amendment, and the recent voting rights act decision, eviscerating the act show that activism isn't limited to the left wing.
Do you seriously want to compare making up doctrines out of whole cloth like Abortion out of a bizarre compilations of amendments to defining the details of something clearly mandated under the constitution (gun rights)? One has a textual basis, the other does not.
If things are so flexible under your view of the constitution, what exactly was wrong with Lochner or the Slaughter house cases? Is it just a ideological litmus test of "i agree with this policy"? Because I agree with underlying substance of Lochner, but realize it was legislating from the bench and hence wrong. Those like me will try to convince the public and change policy through the political process- not encourage philosopher kings.
It's not a bizarre compilation of amendments. The XIV and V Amendments dovetail each other in protecting life, liberty and property, and the pervasive interests of liberty -the right to be left alone- is inherent in the First and Fourth Amendments. Certainly you believe there are unenumerated constitutional rights as well as numerated rights. The framers did, and the several states that ratified the Bill of Rights would not have done so without the Ninth.
And regarding Heller, there is no textual argument that the second Amendment protects a person's right to own firearms for self-defense as Heller suggests in a 5-4 decision. Here's where original meaning comes into play. A key phrase in the Amendment is "The people." When dealing with individual rights, like those in the Fifth Amendment, the word "person" is used to connote a personal right. When the term ""the people" is used (as in We, the people, or the people's right to assemble), it refers to the citizenry of free men acting for a public purpose. The language of the Second Amendment tying the right of "the people" to the purpose of national defense, defines the right. Moreover, some state constitutions at the time of the federal constitution's origins included provisions recognizing self-defense and hunting as bases for the right to own firearms. The founders specifically rejected these as a basis for the Second Amendment. Also, the phrase "bear arms" carried a connotation that was limited to military or national or state defense, not for an individual purpose.
Therefore Heller (the first time the Second Amendment was ever interpreted to involve an individual right and"invented" right to owning a gun for self-defense) is an activist decision that expanded the meaning of the Amendment.
The Slaughterhouse cases were based on the privileges and immunities clause while Lochner was based on the due process clause. Nobody puts much credence in slaughterhouse as good law, and Lochner is also deemed as flawed. But these are economic cases, which today have a nuch lower level of scrutiny by the courts than individual rights and fundamental rights.
