Originalism like Textualism are doctrines the Right uses to justify their bastardization of the Constitution. For example Bork and Scalia wanted to find a way to limit social rights they didn't want the People to have... like same sex relationships and marriage. Clearly the federal government was given no power in this area and therefore these were individual rights maintained by the People... and protected by the Ninth. But the Ninth's phrasing was its weakness. It read
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
instead of a more clear statement protecting rights from the Rights Of Man (French 1789)
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.
Bork and Scalia claimed we could not know what those unenumerated rights were (Bork's ink blot) and therefore we must assume government DOES have the power to limit those rights and instead of being seen as natural rights... they must be CREATED legislatively.
Dems have never really pushed back against this argument any more than they have against the Right's bastardization of the Second to negate the militia clause in Heller. So if we're to believe Heller then it seems Congress now DOES have the power to disarm state militias (National Guards) when the Second was created to PROTECT state militias. Several states REQUESTED such an amendment as a condition of ratification... including VA... where Madison signed on...
That each state respectively shall have the power to provide for organizing, arming and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion, and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own state.
https://www.usconstitution.net/rat_va.html
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