In your opinion. I clearly disagree, finding more agreement with Breyer's dissent in McDonald v. Chicago (2010) that incorporation under the 14th was inappropriate because it is not a fundamental, individual right.
The Second is the only Amendment in the Bill of Rights that explicitly explains the intent behind the right enumerated there -- that the ownership of firearms is intended for the establishment of well functioning militias. That means the right is limited and not fundamental, and the government should have a free hand to regulate so long as that purpose is not thwarted. To hold otherwise is to regulate the militia clause meaningless. I do not think any phrase in the Constitution should be treated so.
I agree, mostly, with your comment about the 10th amendment. It has two parts - the States and the People.
However, your reading of the 2nd seems to imply that the 2nd grants a right rather than restricting a power. The preamble to the Bill of Rights states the intention of the BoR to be a further set of restrictions on the government and not a grant of rights to the people.
I, obviously, find it very difficult to accept that the 2nd amendment is not a fundamental right given the preamble to the Bill of Rights, its inclusion in the Bill of Rights and its appearance near the top of the list.
It's difficult for me to see how I could agree with your conclusion without some significant manipulations of the purpose of the document and language:
- The overall purpose of the Bill of Rights is to place further declaratory and restrictive clauses on the power of the government not on individual rights
- The Bill of Rights enumerates individual rights and, except for the 10th, mentions no other entity except in a restrictive capacity. In the 10th the states are mentioned in order to further restrict the powers of the national government.
- Whatever the purpose of the 2nd amendment its conclusion is direct, "...the rights of the people to keep and bear arms shall not be infringed." The directness of that statement can not be ignored. The authors could have just as easily said, "...the rights of the states to arm their citizens shall not be infringed." An insistence on using the first part of the sentence to modify the second ignores the plain language of the second. There are many elegant ways to write the sentence to support your position and none of those were selected.
Finally, I believe that all our rights are fundamental. The concept of a fundamental right is a fiction invented by the Supreme Court and one that really started to erode in the 1930s. Nevertheless, it is part of our current jurisprudence.
What is most disturbing to me is that we now have to demonstrate that a right is fundamental in order to have that right incorporated against the states. This is another example of why Roberts and other Supreme Court justices are wrong when they start with a presumption of constitutionality when examining a law rather than a presumption of liberty. That presumption began in the 1930s with the wholesale redefinition of "commerce" in order to expand the reach of the national government.