Alright so I'm tired of all this bullshit regarding the "durr durr well regulated militia : D" garbage so I'm gonna make another effortpost that can be linked to whenever someone wants to regurgitate some nonsensical talking points.
A common talking point amongst anti gun folks is that pro-gun people willfully ignore the prefatory clause of the second amendment. As you well know that reads "A well regulated Militia, being necessary to the security of a free State". Ignoring for the moment that this is simply a prefatory statement we need to break down what it actually means. "Well regulated" as an adjective in the 1600-1800's was commonly understood to refer to things like proper discipline and being in working order and there's several examples to be found of it demonstrating such:
"If a liberal Education has formed in us well regulated Appetites and worthy Inclinations."
"The practice of all well regulated courts of justice in the world."
"It appeared to her well regulated mind, like a clandestine proceeding."
Those are taken from the
Oxford English Dictionary and range from the early 1700's to the 1860's, though there are earlier and later cases as well. The phrase didn't come to mean government regulation until much later and thus obviously had no bearing on what Madison wrote in the 1700's.
Another important part of judicial history that needs to be taken into account is the 18th century English case Copeman v Gallant which stated that “the preamble could not be used to restrict the effect of the words of the purview". Whilst our English cousins would change this a hundred years later to lend more credence and importance to preambles this has never changed in American jurisprudence and thus the settled law in the United States is that the preamble has no control over the operative clauses of anything.
Another common misconception is the second amendment is unique in its usage of a prefatory clause. Whilst this is true for the federal bill of rights it is not true of America as a whole at the time.
Rhode Island, 1842 wrote:The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty
New Hampshire, 1784 wrote:In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed
Massachusetts, 1780 wrote:The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
The thing all of these have in common with the second amendment is that each has a prefatory clause that serves as nothing more than an introduction and reason as to why the right exists. None of them create arbitrary lines on whom the right applies to.
Lets go a bit further and see what the states had to say about the masses owning weaponry shall we?
Pennsylvania Declaration of rights wrote:That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Vermont Declaration of rights wrote:That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.
Kentucky Declaration of rights wrote:The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
Missouri bill of rights wrote:That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.
Starting to notice a pattern? Odd how if the right was only supposed to apply to members of the militia that everyone everywhere made sure to extend that right to the entire citizenry.
Oh lets also not forget that DC v Heller was not the massive precedent upsetter that the gun control lobby likes to label it as. Lets dive into a bit of SCOTUS history!
Dred Scott v Sanford wrote:“It would give to persons of the Negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
Huh, if the second amendment applied only to members of the militia why would it immediately give "persons of the Negro race" the right to keep and carry arms wherever they went in addition to all those other ones? I'll tell you why, it's because it's always been understood that the second amendment protects an individual right to bear arms just as all the other amendments dealing with individual rights do. But lets go a bit further.
US v Cruikshank wrote:“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”
This particular bit is commonly held up as proof that the second amendment doesn't protect the right to bear arms by those who fail to understand what it's saying. Whether you agree with it or not the foundation of our nation was based in the idea of natural rights and Cruikshank affirms that belief. What the court is saying there is that people naturally have the right to bear arms and that all the second amendment does is restrict the power of the national government (this was before incorporation under the 14A really began but this has since been extended to the states as well in McDonald v Chicago) to infringe upon and restrict that right.
Practically the entire basis of the "collective right" theory that anti-gunners love to spout originated in 1939 with US v Miller. Miller was a dude who had a short barrel shotgun that was not registered with the recently passed National Firearms Act and when caught brought a case against the government alleging it violated the second amendment. I'll spare you all the boring details but this case was absurdly shady and filled with so much BS that it should be thrown out entirely. Miller died before the hearing at SCOTUS started and his lawyer went missing thus leaving only one party present. FDR's administration then flexed it's muscles and put lots of pressure on the court to rule in their favor and uphold the NFA, which they did by claiming that short barrel shotguns had no militarily relevant usage (an objectively false statement too, they were widely used by the Army) and that the government could regulate them as a result. Of course this ruling works both ways given they indirectly said the second amendment also protects any weapons useful in a military context, which makes all the harping on about "military style semi automatic assault rifles" rather amusing.
So all in all the collective right theory has no basis in reality except for a single absurdly shady court case that has since been largely overturned. If anyone who likes to parrot the "muh militia" line would like to challenge any of this please feel free to.
potato