So the issue arises as to what impact the reference to the Militia should have on 2A interpretation and jurisprudence in terms of black-letter protections and "rights." Setting aside "sophisticated" and "collective rights" interpretations, the technical answer is none. A prefatory clause does not impact on the operative clause's statement. For example, United Nations Resolution 1244, which ended the shooting in the 1990s Kosovo War, explicitly says in its preambular bullet points: "Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of [Serbia]." Yet, in 2007, Kosovo declared its independence from Serbia, and most countries were relatively quick to recognize it. The ASPIRATION had been to keep Serbia in one piece, but the reality of carrying out the accord didn't quite make it happen.
The aspiration of 2A is obviously an armed citizenry prepared to act militia-style:
Hence, the argument is that common citizens are to be militarily armed. One of the earliest uses of the "common use" approach to 2A used to the term to refer to what was in "common use" in the military, and that people had a right to the standard military arm of the time (but see TDF 10). Such was reversed at Heller to common use in CIVILIAN life (see TDF 17).
The lower-end take, closer frankly to the Heller decision, however, might narrow the right down to the primordial elements circa the 1688/89 English Bill of Rights, which was interpreted to allow for basically a "blunderbuss to ward off burglars."
The lower-end take, closer frankly to the Heller decision, however, might narrow the right down to the primordial elements circa the 1688/89 English Bill of Rights, which was interpreted to allow for basically a "blunderbuss to ward off burglars."
In today's terms, that would be a carbine or a home-defense shotgun in modern technology (similar to how online publication is held equal to printing paper copies). Add in a pistol for "bearing," and one could see a very minimalist fulfillment of 2A--one that would low-end traditional American armament, while still more firmly securing more firepower than other countries with any sort of constitutional Right to Arms provisions (see TDF 28 and TDF 43/44).
This is where the "shades" come in. From this, one could argue that the Founders indeed wanted a populace armed with full-on Militia-suitable arms ("in common use" militarily) as much as possible, but only secured the baseline rights of Englishmen plus carry ("bear") to give flexibility for future generations. (DISCLAIMER: Even this fuddster rejects endorsing this view, but bear with the theory--remember, TDF is more about practicality than principle.) By this reading, the people would be protected from disarmament against criminal elements and retain some baseline community service ("posse") functionality and resistance for invasion--Federalist 46 matters notwithstanding--with a provision for higher-end arms becoming incorporated by custom. Such a view would fit with Heller's "common use" twist.
It might also be taken to support a certain selectiveness on higher-end arms guarantees. (See TDF 10 for an originalist view of such things.) For instance, for veterans and drill-status militia to be afforded more protection for higher-end arms than civilians, or other plays on the "suitable to the Conditions" clause in the original English right codification, might be read into that. That would raise "equal protection" issues, obviously, but it is always debatable just how far the Founders saw that provision reaching.
The upshot in all of this, as well as much of TDF, is that at least marginally viable alternate readings of 2A are possible without losing a meaningful private right. The aim is to prepare 2A practitioners for whatever the post-Election Steal liberalizing America might hold for this core element of American heritage. The various takes in this series can be mixed-and-matched to give RKBA defenders concepts to be used politically and legally to defend and maintain as much RKBA as possible, in part of setting up ways for liberal courts, including the soon-to-be-packed SCOTUS, to see clear to maintain the obvious private-right element--something supported even by many liberals--as they push other arms agendas.
It might also be taken to support a certain selectiveness on higher-end arms guarantees. (See TDF 10 for an originalist view of such things.) For instance, for veterans and drill-status militia to be afforded more protection for higher-end arms than civilians, or other plays on the "suitable to the Conditions" clause in the original English right codification, might be read into that. That would raise "equal protection" issues, obviously, but it is always debatable just how far the Founders saw that provision reaching.
The upshot in all of this, as well as much of TDF, is that at least marginally viable alternate readings of 2A are possible without losing a meaningful private right. The aim is to prepare 2A practitioners for whatever the post-Election Steal liberalizing America might hold for this core element of American heritage. The various takes in this series can be mixed-and-matched to give RKBA defenders concepts to be used politically and legally to defend and maintain as much RKBA as possible, in part of setting up ways for liberal courts, including the soon-to-be-packed SCOTUS, to see clear to maintain the obvious private-right element--something supported even by many liberals--as they push other arms agendas.
It's not ideal, but it is what it is. And it's a damn sight better than nothing.
