So the question seems to be, can a provision of the Bill of Rights be rescinded by amendment or otherwise nullified by legislative act, and a power that was expressly prohibited beforehand be conveyed to government to exercise at will?
Well, let’s set aside the 2nd Amendment for a moment and ask what if the government nullified the 4th, 5th, 6th, and the 8th provisions in the Bill of Rights?
Would the government then be legitimately empowered, to search and arrest a citizen without warrant, torture a confession out of him, convict him in a kangaroo court without benefit of counsel, then take him immediately outside and have him hung, drawn and quartered?
I say no. The fundamental maxims of equal rights and equal standing and the exercise of legitimate authority and the abhorrence to arbitrary government action are fundamental tenets of the Constitution and even if the mechanism afforded by the Constitution for altering it were used to the letter, such action would be illegitimate and “unconstitutional”.
Any amendment must be in agreement with the founding principles. Marbury v. Madison confirmed the supremacy of the Constitution and the principles it is based on, over the legislature, the judiciary and all levels and departments of the executive branch.
[ul]
[li]“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?”[/li][/ul]
This is the fundamental principle of our Republican form of government. The powers of the government extend to only that which is included in the Constitution. That restriction of power is meant to be definite and final, not vague and malleable.
The Constitution itself can not be changed by normal legislative processes and neither is it subject to public opinion (as in a democracy).
If a law is passed, it must be in agreement with the Constitution. The court then asks about the ramifications of enforcing a law, that is in their words, “repugnant to the constitution.”
[ul]
[li]“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.”[/li][/ul]
So, that law does not exist. Requiring another branch of government to act upon that non-law is, “an absurdity too gross to be insisted on.” The court then tells us how to determine whether a law is repugnant to the constitution.
[ul]
[li]“It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. . . The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.”[/li][/ul]
That short paragraph speaks volumes about the shared responsibility of vigilance held by each branch of the government and the citizenry. All of them should be able to recognize and none of them can allow, governmental overstepping of authority.
In simpler terms it states; Those long and well established principles are fundamental. They act as the bedrock, the foundation from which all legitimate governmental power is built. But while the Constitution is supreme, the governmental power granted through it, “can seldom act,” (is strictly limited and has no power to retroactively change those principles) so, those principles are permanent.
I do not take the court’s language to mean that those principles, on which our Constitution rests, are flexible or evolving, or subject to modern reconstruction or worse of all, the ignorant whims of popular opinion.