Davesf:

There's a minor problem that the rigidity of the so-called originalists ("my real, actual, enumerated rights") seems to cause them to conveniently ignore. The drafters of the constitution, well aware that the country would evolve, gave themselves (and thankfully, us) an out to let the contstitution live. It's called Article 9. It reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Hence, what originalists like to call the rights which are "new ones" or special rights, are neither - they just aren't enumerated. Which doesn't mean the Constitution doesn't protect them. Sorry, the document lives and Article 9 is there to see that it keeps right on living.

No, the meaning of Article 9 is pretty straightforward. The common law rights possessed by Englishmen were still protected under the new government. For instance, English free men under common law had for centuries enjoyed the right to arm themselves in their private homes and on their persons for personal protection. They had enjoyed a presumption of the right to defend themselves unless and until they lost that right through the misuse of those weapons.

It was certainly never written to empower judges to invent new "rights" never imagined to exist prior to the writing of the constitution.