Using the literal language of the Constitution to ascertain its meaning is simply normal legal practice. So is investigating the legislative history of disputed sections when they are ambiguous. But there are two serious problems with relying solely on text and historical practice: first, it is rare for either the text or the history to be crystal clear; and second, dramatically changed conditions over two centuries can make it impossible to ascertain the intent of the Framers in any meaningful way. What did James Madison think about the internet? Why would anyone even attempt to answer such a stupid question?
Well, we’re on the verge of engaging in a discussion like that with regard to guns. As I’ve noted before, the Court deliberately obfuscated history in order to find a personal right to bear arms in the Heller case. It is just a matter of time before the Court decides that an AR-15 is the contemporary equivalent of a musket, and therefore cannot be regulated by any level of government. Is that true, by any reasonable standard? Given the vastly increased destructive power of an AR-15 relative to any weapon existing in 1788, isn’t it fair to say that the understanding of the Framers with regard to muskets has no relevance to modern conditions?
You know the answers to those questions, but the Court doesn’t. Expect the worst.