Gura makes a point I have long made on this site:
Respondents err in assuming that the 1868
Framers’ conception of the right to arms was necessarily
limited or altered by the Second Amendment’s
militia preamble. Respondents’ focus on the Second
Amendment’s ratification history is simply irrelevant
here. Even were Heller wrongly decided, the relevant
inquiry in this case concerns the original intent and
public meaning of the Fourteenth Amendment.
And even if that Amendment’s Framers and their
public erred in interpreting the Second Amendment
(or Article IV, or anything else), their understanding
nonetheless defines the content of the Amendment
they enacted. No serious question exists that the
Fourteenth Amendment was designed to secure the
right to arms against state infringement. Constitutional
Law Professors Br. 28.
Here's what I said, trying to explain this very point:
Regardless of what Madison and the rest of the Bill of Rights' Framers meant, there is another issue. The Constitution can be legitimately modified by amendment. And the fourteenth time that the Constitution was amended the Second Amendment was affected.
...
You see,
the Framers of the Fourteenth Amendment are right by definition. If next year an Amendment were ratified that said that the Third Amendment means only that soldiers may not be quartered in citizens’ homes in times of peace during leap years,—and thus quartering during peace is legal most years—that would be the new meaning of the Third Amendment. It wouldn’t matter what Madison or the original signers meant.
...
It seems to me that whatever the Second Amendment originally meant, it now means that there is a personal, individual right to keep and carry arms, enforceable against the all of the states—Illinois, New York, and California included.
Source:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x229712Sure, we word it differently. He speaks of the meaning of the Fourteenth Amendment, I speak of the new meaning of the Second Amendment as enforced against the states by the Fourteenth, but the bottom line is the same. Even if
Heller were wrongly decided, and even if the Second Amendment originally applied only to on duty militia members under total state control, the Fourteenth Amendment still changes the status of the right to keep and bear arms.
Another gem I was really impressed with:
The Second Amendment’s framers assumed that
the People’s ability to act as militia, preserved by the
ownership of self-defense weapons, “is necessary to
the security of a free state.” U.S. Const. amend. II.
The constitutional text thus reflects the Framers’ conclusive
judgment that the right to arms is essential to
“ordered liberty,” were that the selective incorporation
standard.
This is a devastating brief. I really hope the Court doesn't sidestep the "privileges" and "immunities" clause. It's time to remove the blot from America's judicial history, the long line of sophistries and lies that have supported unconstitutional gun control and other abominations.
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