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Seems like the practice of declaring the Constitution says whatever you want it to say, text be damned, is a longstanding one. "Unless you're black" is a heck of an asterisk.
It took about 7 years for a sweeping "don't criticize the government" censorship bill to get passed (Sedition Act), though at least it was widely unpopular and they got rid of it.
Ah, our poor silly ancestors... if only they'd known the modern trick of saying they were keeping the public "safe" from "misinformation".
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It's more that the OG Bill of Rights was only enforceable against the Federal government, not the States.
It is more likely than not that the Reconstruction Congress intended the privileges and immunities clause of the 14th amendment to make the Bill of Rights enforceable against the States ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") but the corrupt pro-South Supreme Court ruled otherwise in the Slaughterhouse Cases. Rather than doing the sensible thing and just overruling Slaughterhouse alongside Plessey as bad Jim Crow law, the Civil Rights era SCOTUS used substantive due process to enforce these rights - as late as 2010 SCOTUS rejected the argument that the 2nd amendment was directly enforceable against the states under the privileges and immunities clause. So there is a whole line of silly doctrine that takes the 14th seriously while claiming not to.
In my view, there is a good originalist argument against incorporating the 2nd amendment against the States. The corresponding argument against incorporating the Establishment clause of the 1st amendment has been endorsed by Clarence Thomas in some of his dissents and concurrences. Based on the text, the original purpose of the 2nd amendment was to protect the State militias against Federal interference. (This is perfectly compatible with the idea that the 2nd amendment created an individual right enforceable against the Federal government - State militias were not required to and often did not keep membership rolls at the time, so many militia members were "just private gun owners" on paper). Incorporating the amendment against the States takes away the States' right to regulate their own militias, so it changes the nature of the right protected, whereas incorporating a right like trial by jury only changes the scope of the remedy available. Similarly, the Establishment clause was intended to protect State-level established religions (like Massachusetts puritanism) from Federal interference, not ban them.
Obviously nobody is going to make that argument, because it gores both sides' oxen.
You present a cogent argument for narrowly interpreting 2A. For this to make sense though, you have to interpret "the right of the people" in 2A to really mean "the right of the States" and that's when you run into big problems. If you read the rest of the Constitution and the Bill of rights, there's multiple references to "the people" and none of them make sense with that substitution. Consider 1A ("...or the right of the States peaceably to assemble") or 4A ("The right of the States to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures") or the neglected 10A which explicitly distinguishes States from the people. It seems odd to me to think that the Founders were willing to throw casual usage of the people all over the place, but when they wrote 2A they meant it in this very specific way and didn't bother putting an asterisk or anything.
I agree with you that any approach to interpretation which starts with the enacted text has to conclude that “the people” in the 2A creates an individual right enforceable against the Feds. The question is whether the non-enforceability of the 1789 2A against the States is about the nature and purpose of the right (in which case it still isn’t enforceable against the States) or about the nature of the remedy at the time of the founding (in line with other rights, enforcement of the RKBA against States was supposed to be based on the RKBA clauses in State constitutions, adjudicated in State courts). In the latter case, it becomes enforceable against the States as a result of the 14A.
The other way of thinking about it is about the various founding-era state legislatures who ratified the 2A at the same time they were passing laws against free blacks owning guns. Were they blithely passing legislation that violated their own understanding of the RKBA because they were unprincipled racists, or were they regulating their own militias in an obnoxiously racist way based on a sincere view of the powers they actually held? AFAIK none of the other founding-era laws restricting the rights of free blacks were obviously inconsistent with the Bill of Rights as the gun laws were under the modern Red Tribe understanding of the RKBA.
Seems like you should probably look to Scott v Sandford for some contextual clarity for the time about laws restricting rights as applied to people who may not have been considered entitled to them. The actual decision is in the national archives and should be read not summaries or opinion pieces.
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Your second paragraph is, genuinely, the first time I've heard a remotely coherent explanation for how someone could read the text of the Second Amendment and conclude that state-level firearms restrictions are permissible. I realize this is incredibly naive, but I consistently just kind of forget that Bill of Rights simply didn't restrict states in the way it does the federal government. I suspect that you're correct regarding this not getting brought up much because of implications for other rights.
For the second amendment and local gun restrictions it would perhaps fall under the interstate commerce clause. But I haven’t seen others make this argument on local restrictions.
If the Feds can’t ban guns and they are a part of commerce then it would probably have interstate commerce implications. Being that the interstate commerce clause applies to just about everything then that would seem to restrict the states on 2A.
If we had a narrow commerce clause then I would think States could ban you from having a machine gun on broadway but not ban you from shipping machine guns. But the current usage seems to be if there is any commercial interests like a gun manufacturer in Virginia making more money if a buyer exists in NYC it would still seem to give a way to prohibit any local regulations.
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Fascinating! I have no idea if it's true or not but I love it as a theory.
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