isadore;1875416 wrote:
Before that the precedent set by United States v Miller set the rule. The 2nd Amendment was about a militia and the government had the power to regulate it.
No, they corrected an erroneous "precedent". As I said, it that is only about the militia and the govt right to regulate it, then there would be no need for the second clause. I think it's unmistakable that the purpose for that second clause is actually placing a limit on the first - we need to regulate the militia, we are not regulating you privately....and that is so important, we are specifically saying your right to own and bear arms "shall not be infringed".
This is the Bill of Rights - individual rights and freedoms so important and valued they are spelled out explicitly. EVERY SINGLE ONE of the 10 is placing limits on govt power, and guaranteeing individual due process and liberty. The govt is not granting itself powers here but rather placing immutable restrictions on the govt's power.
You can see the pattern and same logic very specifically in 3 of the 10, exceptions being almost exclusively with respect to war:
2) No infringement on the right to own and bear arms, EXCEPT with respect to a militia in defense of the country
3) No forced housing of soldiers, EXCEPT as to be prescribed by law in a time of war
5) Due process - again with an EXCEPTION related to war
10) Possibly the most important, which is basically a catch-all saying the Fed has no power not explicitly granted under the Constitution. And then a literal reading of the other 9 makes even more sense - the only thing really carved out for the Fed is control of the army, which makes perfect sense in war time instead of several disorganized militias in each of 13 different states.
The BoR is, literally, the Fed handcuffing and limiting it's power with ONE EXCEPTION: the centralization of military leadership and organization in time of war.
Honestly, whether "strict constructionist" or "living document", it should be blatantly clear from context and language that the US CONGRESS shall not infringe on the right to bear arms. That second clause isn't just thrown in because they thought the Feds might not be able to arm their army - if you regulate the militia, you don't need to call out the right to bear arms because you just give them the guns, which you have the power to do because you gave yourself control over the militias.