Amen, I've ranted on HN about that a few times. [0] There is zero question that the Second Amendment was created as limit on the federal government interfering with individual states, and did not bar any state from whatever policy they chose for themselves. (Also, at that time, every state was already mandated by mutual treaty to have a "well-regulated militia" with state-appointed officers and state-funding, so the term had existing meaning.)
Whether that narrow scope is/should-be still true is trickier given the 14th amendments, although I believe it was wrongly included in the incorporation doctrine. [1]
[0] I know Google-search scoped to HN used to find them, and today it doesn't. The enshittification continues, is it time for me to start slowly scraping my own comment-history?
You have to account for the fact that several states have equivalent provisions in their constitutions, some of them explicitly protecting individual rights, and other states have added such provisions shortly after.
That is, the right was broadly recognized as an individual one and not just a state/federal interaction issue early on. The federal constitution didn't consider that case for the same reason why it didn't consider them for all the other amendments - it was simply out of scope there then. But given the historical recognition of the right at the time 14A was enacted, it makes sense to incorporate it.
> There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, the whole people of the United States, by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do, and have never even attempted to do; that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.
> Allow me, Mr. Speaker, in passing, to say that this amendment takes from any State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy.
-- John Bingham, 39th Cong., 1st Sess., p. 2542
> Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be -- for they are not and cannot be fully defined in their entire extent and precise nature -- to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.
-- Jacob Howard, 39th Cong., 1st Sess., p. 2765
It's correct to say that the second amendment was a limit on the federal government only as decided in Barron v. Baltimore (1833). Total incorporation was the intent of the 14th even though the courts ultimately re-affirmed Barron in US v. Cruikshank (1876) which was a 14th amendment case over the 1st and 2nd amendment. De Jonge v. Oregon (1937) overturned part of Cruikshank by incorporating the right to peaceable assembly from the 1st, later that year Palko vs. Connecticut created selective incorporation doctrine and incorporated double jeopardy from the 5th, and of course McDonald v. Chicago (2010) overturned the other part of Cruikshank by incorporating the 2nd. All this to say, incorporation doctrine is pretty convoluted. If you think that the 2nd amendment should not be incorporated but the rest should then that would make things even more absurd. There's just no way via either total or selective incorporation that you can exclude the 2nd without it becoming nine judges determine what rights the government grants you, thus defeating the entire purpose of the bill of rights.
> All this to say, incorporation doctrine is pretty convoluted. If you think that the 2nd amendment should not be incorporated but the rest should then that would make things even more absurd.
Please indulge me in a hypothetical. Suppose the 2nd amendment had almost exactly the same practical effect when ratified, but was phrased as: "The Federal government may not restrict any State maintaining its militia, nor seek to restrict or impair that state's supply of future potential volunteers and their armaments."
Would you consider that to be a rule about the fed<->people relationship (creating a personal right for all "potential volunteers"), or do you read it as a rule about the balance of power between fed<->state layers?
Does the difference between those categories matter when it comes to applying the 14th, and which fed-can't-do-X rules autogenerate new state-can't-do-X rules?
> [...] without it becoming nine judges determine what rights the government grants you, thus defeating the entire purpose of the bill of rights.
Maybe, but that's an appeal to consequences, the truth of something shouldn't depend on whether we like what it says about the universe... and that's a problem we already have.
> There is zero question that the Second Amendment was created as limit on the federal government interfering with individual states, and did not bar any state from whatever policy they chose for themselves.
Amendment 10, brought into force at the same time as amendment 2, says that the states can't infringe upon the right to bear arms either. That is very far from "zero question" as you stated.
> Amendment 10 [...] at the same time [...] says that the states can't infringe upon the right to bear arms either.
Uh, no. Just... no. Perhaps you've mixed-up the 10th and 14th, which occurred about a century later.
The 10th does the exact opposite of limiting state power, it says states continue to have all powers they didn't specifically give up by joining. It sets the default for when there's ambiguity, and it sets it in favor of not-the-feds.
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.