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by samman
3850 days ago
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>Note that the "right of the people to keep and bear arms" is a precondition, according to the 2A, for a "well-regulated militia" Arms are indeed a precondition for a militia, but it seems to me the 2A only exists because the need for a militia was perceived at the time. I'm not so sure that's the case today. In any event, you make a very good point about the danger of 'creative' interpretations. |
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> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
> Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. [...] [A]part from [its] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
The court also examined the meaning of the word "militia". The word had a different meaning at the time than it does today. The militia did not refer to a specific military force, like the National Guard today. Rather, it referred to a section of the populace:
> As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
> We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.