Desuetude is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time. It is what happens to laws that are not repealed when they become obsolete.
Unfortunately, this doctrine currently enjoys recognition in the courts of West Virginia and nowhere else. Perhaps this is why Scalia somehow decided that he could bring an outdated, anachronistic, and defunct section of the US Constitution kicking and screaming into the 21st Century. It's bad enough the Second Amendment serves no real purpose these days since there is no longer a citizen's militia (as if there really ever was) and it has been replaced by a large, standing military in peacetime.
The best argument in favour of desuetude might also be the simplest. In
the words of one commentator, "it is part of the intelligent cooperation
the courts owe the legislature to relieve it from the burden of seeking
out and repealing statutes that clearly serve no modern purpose." Given the purpose of the Second Amendment is to ensure the continuation of a system which died out at childbirth and was possibly stillborn), it serves no purpose.
If anything, it stirs the minds of those not willing to understand it to take it out of context: Historic and Constitutional. It has been removed from its purpose by judicial fiat which has decided that the purpose is not relevant to the guarantee.
On the other hand, repeal by desuetude is much like repeal by sunset clause. Indeed, we could
call the doctrine of desuetude an implied and indefinite sunset clause. Once the purpose was declared invalid, then the guaranteed right becomes invalid.
Recent events demonstrate the mischief an antiquated law can cause if it is not properly repealed: especially when the law is as misinterpreted and subject to misconceptions as the Second Amendment. The Second Amendment does not address self-defence.
Even more importantly, it cannot be conceived as allowing people to act against the legal framework (e.g., article I, Section 8, clause 15; Article III, Section iii; and 14th Amendment, section 3). The fact that absurdity has been given any credence goes beyond my comprehension.
It makes far more sense to declare the Second Amendment dead judicially than to amend it completely out of Constitutional context. In fact, judicial amendment of the Constitution is totally ultra vires (beyond its power).
