The prefatory statement was intended to be explanatory and not conditional. This is a quarter-millennium of language drift on display.
I know this has been the dominant judicial reading; you’re quite right about it being explanatory but I disagree that it is not conditional - to the contrary, it sets a
pre-condition: the necessity of the defense of [the free states]…*therefore* the right of the people…etc, etc. Not inconsequentially, if the people were forbidden arms no such defense would be possible.
It’s an archaic sentence structure, sure, but it’s not a foreign language - certainly not for anyone who’s spent time studying letters & documents from the same era.
Since the precondition of the militia is at issue, let’s see what Article 1, Section 8 says about militias and related issues:
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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
Point by point:
Congress can raise money for an army - but only for two years, beyond which it became a standing army (see colonial issues with Redcoats: founders wanted NO PART of a professional military). This became an issue for us following WW2, when there was a lot of money and pressure behind the idea of creating and maintaining permanent readiness (Strategic Air Command, the Dew Line, in-air refueling, weapons research) in the face of Soviet Russia. To throttle back to a skeleton army would have made such preparations impossible, but the constitution was clear. The response was to build out a fulsome plan for our military future, and to fund it - and get around the constitution itself - they appropriated the buildup expense in two-year chunks - each bigger than the last.
To regulate land and naval forces, the militia would themselves be subject. Military regulations ‘infringe’ on rights every day, and those in the military know it.
’Providing for the calling forth of the militia’ is *EXACTLY* how we got the National Guard…before which there was little military tradition that attached to called-up troops, unless individual units created traditions and standards for themselves. Those supporting rag-tag, ad-how collections of gun owners and tactikids as militia talk about fighting off Indian raids, but running down fugitive slaves not so much. There’s truth to the idea that the original concept of ’the militia’ evolved (or degenerated) into what we now call police forces as “civilization” spread.
TBoMK there is NO ‘provision for organizing, arming, and disciplining the militia’ that applies to ANY gun club of ‘second-amendment patriots’ - just as none of them have - *
as* militia - been trained according to the discipline prescribed by Congress.
In short, given the moribund state of the founders’ dream of a citizen army and its replacement by the current US Army machinery, the 2nd amendment is as dead as the ‘3/5 of a person’ rule. If we want it back, then we want it INSTEAD OF “the world’s most powerful military”, or we need to rewrite it.
The problem with rewriting it is, some of our least-favorite people have been PLANNING a rigged constitutional convention for some time (search ‘ALEC Article V convention’…and if you’re not familiar w/ ALEC, search ‘American Legislative Exchange Council’ too). I spent a few years working out updates & additions myself…before I found out that Edwin Meese & John Ashcroft were thirsty to overhaul it too. With the nation as it is, I must conclude that we dare not attempt a rewrite in as hardened a partisan atmosphere as we currently endure
