"penumbra" is legalese for umbrella. it is a term for a legal doctrine fashioned from whole cloth. for example, though the word "privacy" does not appear in the constitution nor any of its amendments, privacy is viewed as a "right" existing under the penumbra of other rights that are.
in other words, heretofore, it has been a fancy word to invoke to describe when judges make a doctrine up, and look for an excuse to establish it.
well, it has been to this point.
but, i suggest a penumbra doctrine for the bill of rights in the u.s. constitution which actually makes some sense. and, that would be simply that the whole of the bill of rights is also a "penumbra" or an expression of each of the separate bills of right, and that whenever a specific right belonging to the people is implicated by governmental action in one area, then all of the protections of the other bills of right are exercised as well to protect the people.
for instance, "freedom of speech" also should enjoy the case law and gloss given to the right to be secure in your papers, and in your home against unreasonable search and seizure. and, in like manner, and in equally good sense, a "freedom of speech" issue should also encompass the protections enjoyed under the rubric of freedom on association, and the like.
and, likewise the right "to keep and bear arms" under the second amendment should be recognized and be protected by the doctrines which inhere in freedom of speech, right to petition the government, right to be secure in ones papers and expression of beliefs, and the right to be free from unlawful search and seizure or violations of due process.
so, when some thug under the employ of the government tries to enter your home to seize your weapons without process and notice, or probable cause to investigate suspected & specifically enumerated criminal wrong doing on the pretext of unpopular or anti-government sentiments, then the entire panoply of rights and protections under the bill of rights is implicated.
it is a modest thought.
but, i think a good thought. for the right to be free of government intrusion and abridgment of right is nothing without the means to assert it by arms and rebellion, if necessary. and, such ought to be explicitly recognized under the law.
of course, legalisms such as proposed above, were called "parchment protections" by opponents of the bill of rights, who viewed such things as inherent in the proper political order. proponents of the bill of rights said, no, they are more than parchment protections, they serve to remind the people of the embodiment of their heritage and political right. by "parchment protections," it was meant that words written on paper were worthless things to a populous that did not have the starch to rise up and shoot tyrants, when it was needful, to protect against tyranny and factions.
you don't understand. then read "the federalist papers," by jay, hamilton and madison to get a fuller exposition of what i speak, and to understand what the founders meant by having the right to possess guns come in the bill of rights, just after freedom of speech and right to religious observance of choice.
in every way conceivable, the founders meant the second amendment right to keep and bear arms was the intellectual and factual penumbra to all the rest of the bills.
john jay @ 02.14.2015