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I don’t see how codifying that all US citizens have the right to own any small arms (defined as X) and to own unlimited (or some other large amount) of ammunition for them would lessen gun rights compared to the current situation. You and @Walterodim seem to almost be making the opposite argument from the same perspective - he would like more codification of the actual rules, you don’t, because you think they’d inherently make things worse than the current vagueness.
I would be fine with explicit codification in principle, but I think the current state is that my opponents are bad faith interlocutors that want to disarm people as much as possible. I would only support Amendments that add restrictions for explicitly called out weapons of mass destruction. Anything spelled out as a positive right is likely to be interpreted as a negative right - think of it like the dormant commerce clause, but for weapons. With regard to small arms, I have zero interest in explicit codification beyond the existing, very easy to read 2A, which covers the relevant rights as clearly as plausible.
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Codifying ownership of small arms can (and would) be interpreted as excluding them from ownership of anything larger. If justices are capable of reading "shall not be infringed" as "can be infringed to an arbitrary degree", they're surely capable of reading "the right to small arms" as "the right to only own small arms".
Almost everyone believes that though, they just vary on what degree, as far as I can tell. I haven't found a 2A advocate in person who thinks prisoners in prison should be allowed to bring rifles in with them, for example (though there probably are some), and quite a lot think felons even after release should not be allowed them. So as per the old saw, all we're really doing is haggling over how much infringement there should be, most people seem to agree that infringement is indeed required in some degree.
If almost immediately after being written, in order to function your society has to add the unspoken caveat, well except people in jail obviously, and the clearly mad, and, and and. Then you're just admitting from the get go, that it doesn't actually mean exactly what it says. You're just haggling over the price from then on and logically once you have admitted that it is flawed, then that makes it much easier to ignore. The right was neutered from the beginning because it was written for theory not for practice.
First, you're missing the key word "arbitrary". Even if we accept for sake of argument that almost everyone agrees that it can be infringed on to a degree, it does not follow that it can be infringed upon to an arbitrary degree.
It's one thing to argue that waiting periods don't interfere with the purpose of the second amendment and therefore is not "an infringement" in any significant sense. It's a completely different thing to argue that semi-automatic firearms can be banned because "stopping school shootings is more important than preserving the right to keep and bear arms". And if you try to argue that banning semi-automatic firearms "isn't a significant infringement" because you think "stopping school shootings" (or whatever the claimed motivation is) is more important than the right to keep and bear arms, then it's just the latter dishonestly presented as the former.
The point of the comment you're responding to is that justices have shown a complete lack of integrity in pretending that clearly significant infringements "aren't really infringements" because they want to infringe. Even if their desire to infringe is justifiable (like in the case of nuclear weapons, for example), that doesn't mean "Well... it doesn't really mean what it says. It means do whatever we think is appropriate while giving lip service to this 'right'". It means get your shit together and pass an amendment that says "The right to keep and bear arms shall not be infringed further than prohibiting private ownership of weapons of mass destruction" -- and whatever other infringements that you think are so clearly appropriate that you can get the necessary supermajority support for.
Second, even if we did all agree that "some infringement is necessary" (rather than, e.g. taking the stance that criminals imprisoned/awaiting execution following due process no longer count as "the people" who are being protected, and the right of the people to keep and bear arms shall not be infringed), the very premise of "we all agree" means that there is sufficient support for passing an amendment and the only reason it's not being done is that we're all on the same page about what is meant. If it ever gets to the point where we're even discussing whether or not "we all agree" that "shall not be infringed" didn't apply to that kind of infringement, then we clearly do not all agree -- so get your shit together and pass the damn amendment if you think you can justify it, or make the case if you think you have important insights that aren't shared by the necessary supermajority.
This is basically my point though. We did this almost immediately. Of course people who don't like guns will use this tunnel to try and drive a battleship through it (or to prevent other owning a battleship perhaps!), that is a given, but the response is not to put our fingers in our ears and pretend the tunnel doesn't exist at all. It does, it exists because the right as written was too broad to be practically useful, and therefore every court since has had to define what exactly that unwritten tunnel should or should not include.
As for passing an amendment to clarify, that applies to pro 2A people more so. Once you have established there is an unwritten tunnel, then it's just a matter of convincing enough people it should be bigger, if you are pro gun control. It is the pro 2A people who would have benefitted from an amendment more accurately specifying a max size to the tunnel. Of course that isn't going to happen either, because the amendment process itself has just as many problems in the modern world as the 2A does if not more!
Do you mean "Once you have established that politicians and justices have been dishonestly passing unconstitutional laws", "Once you have established that doing so is legitimate", or are you conflating the two?
The former can be argued, but the latter is clearly false. You're essentially arguing that we shouldn't expect our government to be intellectually honest -- is this a bullet you will explicitly bite?
Absolutely, because almost no-one is intellectually honest in my experience let alone politicians.
But thats not my point, reading the 2A as written, causes issues for pretty much any government, so almost immediately it had to be ignored in certain circumstances. That would have been the case regardless of changing out which politicians were in charge. Its not about individuals it's about how society responds to necessary things even if the necessity is apparently illegal. We've (both left and right) accepted that the 2A does not allow guns in prison since it was written basically. We (generally) have accepted that the constitution can only work as written with onventing tests about how narrowly the government must override them, and only when it is in the public interest and so on. But it was accepted.
Letting people in prison have guns, renders prisons unworkable and we need prisons therefore either prison is an unwritten exception or criminals are an unwritten exception or something else is an unwritten exception.
And once you have accepted there is an unwritten exception it becomes an avenue for further unwritten exceptions that are also "necessary".
The fact that people behave poorly does not make the behavior good. If you take off the pressure to behave well, you get worse behavior, not better behavior.
And it actually is the point, since the rest of your argument rests on this idea that intellectual dishonesty is okay so long as enough people do it.
And this is a perfect example. Once you justified intellectual dishonesty, you allow yourself to start saying things like this in a way that conflates "intellectually dishonest people are going to claim this, but they're clearly wrong and behavior is deserving of shame" with "it's true".
I've already given you two reasons why this doesn't work.
The first, IMO, is that once due process has been followed and you have been considered to be a threat to "the people" to the extent that you need to be locked up and maybe executed, you are no longer part of the protected class "the people". This seems quite clear to me too, since you can't exercise any rights once you're dead.
The second is that even if you were able to find an infringement so slight that everyone agrees it "doesn't count", then there's no need to amend things because no one disagrees. The moment you have people pushing back saying "Actually, 'shall not be infringed' means 'shall not be infringed'", it's not true that everyone agrees and now intellectual honesty requires amending the constitution in order to do that infringement. This is how it works in every other instance. If someone says "Do not touch me", in unqualified language like that, then you don't get to push them and justify it by saying that you expect they would have been okay if you hugged them. If they say "Do not touch me means do not touch me", then that does not give you the right to hug them just because you can justify why you think they don't/shouldn't mean it in the absolute. It is as absolute as the person whose rights being infringed on insists on, no less.
The only way you can miss either of these problems, even before they're explained but certainly after, is by relying on the mistaken idea that intellectual dishonesty isn't intellectual dishonesty if it's common.
I'm not making a moral point. Intellectual dishonesty may be bad, but we must deal with the world as it is, not as we wish it to be. If you're writing rules and you know most people are intellectually dishonest, then regardless of if you support their dishonesty or not, you should account for it.
And I think in some cases in making Constitutional amendments that was done better than others. Due process claims is a method of defining your way out of the problem. But if the problem was specifically addressed, you have closed one area of attack.
Intellectual dishonesty is human. We are writing rules for humans, therefore those rules will be subject to it. Whether you think that is great or terrible is unimportant. It is.
It may well be bad that people try to drive a bus through a hole that previous people thought should only allow a mouse through. Intellectual honesty can require whatever it likes. But if most people are not, then it doesn't matter.
The moral valence of peoples actions is not relevant when discussing how bureaucratic laws and rules can be used or misused, and how gaps can be exploited and used. It might be good to use the hole to ban personal nuclear weapons, it might be good to use the hole to disallow criminals to have guns in prison. It might be bad to try and restrict black people from owning guns, and it might be bad to prevent New Yorkers from owning guns.
But Morality is subjective, once you allow for the hole, you must expect people with different moral opinions than you to use it for things they also think are good.
And early on we accepted there were holes. If you can define criminals as not being the people then you can certainly define blacks as not being the people. If you can define arms to exclude nukes you can certainly define arms to exclude high capacity assault rifles. And indeed that is exactly what we saw happen.
I'm not being prescriptive, I'm being descriptive of what actually happened. Good or bad is just pushing the argument to the moral sphere where different morals will have different answers. Doesn't matter because people do have different moral compasses. If you allow x because you think y is bad you can't be surprised when people want to allow a because they think b is bad.
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