[andyfox]

Good post.

1. (and 2.) I agree that the Bill of Rights does not grant rights, it preserves and guarantees pre-existing rights. That was the reason for the Bill of Rights to begin with, to assuage fears of anti-federalists that the Constitution would denigrate too many rights. Indeed, the language of the 9th amendment confirms this.

3. The militia clause to the 2nd amendment was not added.
The amendment's purpose was to allow the states to keep their militias and to protect them against the possibility that the new national government would use its power to establish a powerful standing army and eliminate the state militias. It's purpose was the protection of militia rights.

As Federalist 29 states, "It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union 'to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS'."

The original language of the amendment was:

"The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of baring arms shall be compelled to render military service in person."

It is not clear why the first two clauses were reversed, or why the third clause was left out. But it is clear that the amendment is talking about arms necessary for militia

The amendment's actual language is an embarrassment. That we are arguing over what it says, shows why. If it were written clearly it would say, "So long as [or inasmuch as] a well-regulated militia of the whole people stands as our preferred military protection in a free society, the Congress shall make no law disarming those citizens of the weapons necessary for their military duties." But let's disregard that for the moment.

The Second Amendment was a vitally important provision to the founders, expressing distrust of the professional standing army (which was the handmaiden of the European tyrants), and providing that, whatever was said in the body of the Constitution about the military arm of the new government, the people still relied on local units, comprising all eligible citizens, trained and regulated, armed with their own weapons. And further, the Amendment served notice that no jealous organ of the central government should ever try to weaken the people's army by making laws depriving the eligible citizenry of their weapons necessary for such people's armies.

There are no militias now that are like the militias at the time of the founding. It is not unusual that things that were important in the eighteenth century are not important now. One thinks of the third amendment, forbidding the quartering of troops in private residences during peacetime. Or the 7th that guarantees a trial by jury for all civil cases where the amount in dipute exceeds $20.

I do not think the Second Amendment has any bearing on the question of whether guns should be freely available or sharply controlled. The Amendment is irrelevant to the issue (as important as that issue is).

That leaves the matter completely in the hands of the political branch. Which is, I think, how it should be. The people decide, by legislative choice, many important aspects of their lives together in society. The wisdom, effectiveness, configuration, and moral virtue of gun control is an appropriate matter for the expression of popular sovereignty rather than constitutional control. Indeed, the 9th amendment supports this viewpoint. The right of the people to decide what they want to do with guns is not prohibited or prescribed by the constitution.