Subject: Re: Another Win For President Trump
I've found it interesting over the years that the anti-2A set chooses to focus on the first part of the amendment while ignoring the last.

I think that reflects a misunderstanding of the argument - namely, that both parts of the amendment have to be read together.

The argument (generally) is that the text of the reference to the militia defines the scope of the right being granted. It's important to remember that the U.S. at the time was a collection of sovereign nations - not a single country, as we would understand that today. It was more like the EU than a single entity. The conversion from the Articles to the Constitution was a major transfer of governmental authority away from those sovereign nations to a new, federal governmental body.

One of the major, MAJOR points of contention was military power. The States each had their own military forces. They were loathe to allow the new federal government to have a monopoly on military power. Not even a monopoly - there was considerable distrust of even letting the federal government have its own standing army. Like so many other issues, the primary concern during the Founding was about how much power the federal government was going to have, not at all about protecting the "rights" of individual citizens.

The Bill of Rights, as initially conceived, has to be understood in this context. Nothing in the Bill of Rights protected citizens from "government," writ large. It protected them from the federal government. State governments were perfectly free to abridge their speech, take their property without compensation, prohibit certain religions, or any host of other measures (consistent with their own State constitutions). And take away their guns, or regulate them in any way they wanted. No citizen at that time had an inalienable right to own a gun, any more than they had an inalienable right to practice their religion - the Bill of Rights merely identified which government was in charge of determining whether they could own a gun or practice their religion.

So, for example, the reason the federal government couldn't establish a church wasn't because government churches and official state religions were bad. It was to make sure that the States retained decide which church would be the official church - or to have a state church at all. The BoR allocated power between the Feds and the States.

In this view, the Second Amendment did not grant individuals a right to own guns - after all, the States were perfectly free to prohibit guns altogether. It preserved the ability of the States to keep their citizenry armed, so that the States would always have the option to have a military force under their control rather than cede all military power to the newly-created federal government.

Flash forward to 1868, and the Reconstruction Amendments are adopted - and for the first time, the States now have some real substantive limits coming from the Federal Constitution on what States are allowed to do to their own citizens. The purpose of the Amendments was to carve out a sphere of rights that the States couldn't interfere with, that would be protected by the Federal Constitution against the states. In addition to being protected against chattel slavery or the denial of equal protection, citizens would now be protected against the States depriving them of "life, liberty, and property" without due process.

But what does that mean? What is "liberty" in that context? The Courts eventually settled on that term meaning (at a minimum) the sorts of things that the Framers originally protected citizens from Federal authority, that the enumeration of them in the Bill of Rights means that they're the sorts of things that are "liberties" and could meaningfully be ported from applying to the federal government to the state governments.

Two clauses, though, are a little weird - the Second Amendment and the Establishment Clause. Those are the two things within the Bill of Rights that aren't necessarily understood as being there to protect individual freedoms, but can instead be understood as protecting the prerogatives of the state - because both involve state action. Only a State can establish a church; only a State can establish a militia. Private individuals can't do either of those things. They involve the exercise of governmental authority. So there are arguments that neither of those things are protections granted to individuals as "liberties," rather than being more properly understood as a division of power between State and Federal government.

Under that framework, the "right" granted by the Second Amendment is actually only a limitation on federal authority so that States would have the ability to maintain their own military forces independent of the national government. It is therefore only a right exercisable by the State itself, or collectively on behalf of forming a militia - not a right that can be asserted by an individual that wants to own a gun for their own purposes, and certainly not against the State.

Albaby

N.B. - Clarence Thomas has continually argued against the incorporation of the Establishment Clause for exactly this reason; that it is not an individual right granted to ensure that individuals are "free" from state-sponsored religion, but a collective right to allow the people to determine at the State level whether (and which) religions should be officially sponsored without interference by or competition from a Federal religion.