AlexanderA
Member
That's correct. The "people" in the operative clause is the same as the "militia" in the prefatory clause. However, the prefatory clause is still important because it sets out the purpose for which the people are to be armed, which is the protection of themselves and the state in a military context. In other words, there are two distinct considerations here: one is the people to whom the right applies (everybody) and the other is the scope of the right (in terms of the weapons to which it applies). Justice Scalia didn't want to touch this with the proverbial ten foot pole, because it would validate his worst nightmare, which was that ordinary people would have the right to own machine guns. In fact he minimized the scope of the Amendment to common handguns in the home.The 2A militia is clearly "The People" as mentioned in the operative clause. It says the right of the people shall not be infringed, not the right of the militia.
The militia clause is going to become of paramount importance in the coming cases testing the constitutionality of "assault weapon" bans. If the Court continues to follow Scalia's reasoning that the militia clause is a nullity, then AWB's are probably going to stand. Because of not paying attention to the militia clause, we can say goodbye to our AR-15's. We'd be on firmer ground, in this respect, if the last word from the Supreme Court was the 1939 Miller case rather than the 2008 Heller case. All that the Heller case stands for, really, is that the authorities cannot flat-out ban handguns. (They can still regulate them out the kazoo, as we see in the District of Columbia today.)
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