I like to explain the Second Amendment by comparing it to another, Art.
I Sec. 4, in which Congress has a pre-emptive power of regulation over
state regulation on the same subject. When combined with the Militia
Clauses of Art. I Sec. 8, it does provide for firearms and militia to be
regulated as part of the "discipline" clause, but only in the direction
of enhancing the effectiveness of militia. In the same way, the
regulation of the time, manner, and place of elections could only be
regulated in the direction of making voting more convenient, accurate,
and fair. Put in another way, a delegation of a power to regulate was
not a "plenary power" within its "sphere", as Justice Marshall would
later say in /Gibbons v. Ogden/, but a power that could only
constitutionally be regulated in a certain direction. Under this
construction, a state regulation or prohibition on firearms, or the
convening of militia, would be unconstitutional if it did not enhance
the effectiveness of militia, not because it was a regulation of
something that could not be regulated in some ways. The use of the
phrase "shall not be infringed" indicates not that no one could ever be
ordered not to use a particular weapon in a certain way while on militia
duty, such as by requiring someone on sentry duty to bear a shotgun, and
on sniper duty to bear an accurate, long-range rifle, but that it was
unconstitutional to do so when a person is not in called-up status, or
in a way that would impair his ability to defend against a threat to
public safety. Thus, an order to stand down or surrender in the face of
invasion would be unconstitutional. Militia, unlike an Army, may not
surrender.
-- Jon
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