If that's Bork's idea of original intent doctrine maybe it's just as well he never made it to the USSC bench. Anyone who thinks the author's of the 2nd amendment intended it to guarantee a state-regulated militia's right to bear arms hasn't studied or understood the background of the amendment.
In 18th century parlance the phrase "well regulated" simply meant well trained. When asked who was the militia as mentioned in the 2nd amendment, Madison answered to the effect that it is the whole of the people, except for a few public officials. The term "people" in the 2nd was also used by the authors in several other amendments in which there is no doubt whatsoever about it's meaning. Why do judges and justices claim to believe it has an altogether different meaning in that one amendment? Personally I don't think they believe that, it's just a convenient way to attempt to justify their incorrect interpretation of an amendment they don't like.
When the Constitution was being written the Americans had just come through an eight year war of independence against the most powerful nation in the world. Without the privately owned arms of the early unorganized militia forces in New England the revolution might have been crushed at the onset before it gained enough momentum to be supported by the rest of the colonies. Also, throughout the war private arms made up an important part of the Continental Army's and Navy's arsenals. The authors knew that well enough, and that was the primary reason for the 2nd amendment, to insure that privately owned arms and the unorganized militia would always be available to provide a bulwark against tyranny, whether foreign or domestic. Anyone who honestly reviews the reasons for the 2nd amendment must come to the conclusion that it was intended to guarantee an individual right, and not a corporate right as so many now claim. Granted, it was intended to guarantee an armed militia, BUT we the people ARE that militia it was intended to guarantee.
I'm sure Bork knows what the author's intended, he just doesn't believe their intent was a good idea. IOW he doesn't believe the "common people" can be trusted to possess weapons, a belief typical of the elitists among us.
Bork's statements regarding the 2nd concern me, not because he will be on a court, but because I now wonder what the supposed conservatives on Bush's list of judicial appointees believe, or rather want to impose on us, concerning the amendment. Any candidate, conservative or liberal, who puts his own notions of what is best for us above the known intent of the authors on any issue shouldn't be given a seat on the court. The question is how many, if any, candidates for judiciary appointments currently in Bush's waiting room have the integrity to place the intent of the author's above their own personal prejudices and beliefs if elevated to the court. If we are to judge by Bork, considered to be a solid conservative constitutionalist, who it seems would be willing to subvert the intentions of the authors in order to avoid nullifying most of the nation's firearms laws, I'm afraid not many of Bush's appointees have that integrity either.
And that reinforces my belief that we can only prevail on the issue through the legislative branch and the political process, and that to depend on the judicial branch to uphold the RKBA will only lead to disappointment and eventual loss of the right completely. After all is said and done, the facts are that the judiciary at it's upper levels is composed mainly of elitists, and historically elitists have always been reluctant to allow commoners to be armed.
The Second Amendment arose out of concern about the Article 1, Section 8, Clause 15 powers of the federal government over the state militias, and coincidentally it's powers under Clauses 12 and 14.
A historically accurate criticism of Judge Bork's remarks (that makes your point IMO) would be that he seems in this extract to ignore how the amendment protects the state militias- by reserving from the federal government an individual right to bear arms rather than a state's right to arm it's militia. Of course the actual language of the amendment does not limit it to just protecting the state's powers over their militia. It accomplished that intent by enumerating and reserving a right of the people from the federal government.
The Virginia Ratification Convention, SATURDAY, June 14, 1788 (continued on June 16th) debate over the proposed Article powers of the new government by Madison, Marshall, Mason and Henry shows the concerns that led to the Second Amendment.
Many of the Anti-federalist's arguments could be answered but not the general suspicion that a standing federal army would, by hook or by crook, supercede the militias.
George Mason's words are, of course, most instructive.
"Mr Mason: "There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army. The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them.
Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. Here is a line of division drawn between them — the state and general governments. The power over the militia is divided between them. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army...
An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.
[Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed?
The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.
If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one.
I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power. "
"When asked who was the militia as mentioned in the 2nd amendment, Madison answered to the effect that it is the whole of the people, except for a few public officials. "
The quote is by George Mason in the debate on June 16th:
"Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.
If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different."