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Comment by Shank | Hacker News Reader

The 2nd amendment already has interpretation questions around the first half -- the "A well regulated Militia, being necessary to the security of a free State," clause. It could go in any number of directions, from expanding "arms" to include "digital arms" to reducing the right only to "as part of a well regulated militia." See: https://www.law.cornell.edu/wex/second_amendment

But I wouldn't bet money on the right expanding beyond firearms any time soon, given the glacial pace of constitutional law review.

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"A healthy breakfast, being necessary for a productive day, the right to eat eggs shall not be infringed"

Would you interpret _that_ as meaning we could only eat eggs for breakfast?

No, but the supreme court might if it served their interests.

It could be interpreted that it'd be ok to ban eggs in other circumstances, certainly. The problem is that it's meaning is so ambiguous that you can't properly tell, especially when considering the arms they had at the time of writing were completely different from what we consider arms these days. If the founders said the right to eat eggs is not to be infringes, would that mean the government would be unable to regulate genetically modified eggs? I don't think so.

> given the glacial pace of constitutional law review

OTOH, the SCOTUS has achieved a political supermajority and will probably move much faster with policy changes now.

The Supreme Court does not make policy, at most it stops other branches from making certain kind of policies, when presented an opportunity to do so when resolving an actual case or controversy.

Stopping certain forms of policy and not others is a way to make policy.

Shape policy but not make policy.

Shaping policy is making policy, practically.

Shaping material given happens at the end after the material is formed.

A judge answers the question someone else asks.

They can deny policy based on existing policy.

Our current Supreme Court is creating policy from whole cloth while entirely ignoring precedent, and the text of law as a flagrant act of partisan pandering in their recent vax || test ruling.

Not to mention the "states can break constitutional protections by simply paying third parties in civil suits" thing.

"does not" or "should not" ?

SCOTUS can also roll back existing policy. The power to flip a bit is effectively power to make policy.

Not autonomously. The Supreme Court can only hear cases which are brought to it -- it cannot "make policy" in the absence of a relevant case.

The SC receives an enormous number of cases most of which it declines to hear. It has a lot of authority over what is brought before it.

Arms vs weapons of mass destruction? Digital arms could fall into the latter category.

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