There are two problems with the Second Amendment. First, under any circumstance, it is confusing; something that an English teacher would mark up in red ink and tell the author to redo and clarify.
The only people "confused" by the wording are those who desire to illegitimately restrict the right.
SCOTUS has been unwavering in its determinations of the right to arms and the 2nd Amendment (two separate, distinct things) . . . . The right is not granted, given, created or established by the 2nd Amendment
thus it is not in any manner dependent upon the words of the Amendment to exist.
Once one conforms his/her thinking to the principles of conferred powers and retained rights, any confusion one had about the 2nd Amendment is relieved.
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"the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."
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If I was to address the wording of the Amendment I would offer that the the theory that the 2nd Amendment speaks to militia control or organization is not something there is evidence of.
The 2nd Amendment has never been inspected to inform or held to instruct on any aspect of militia powers, federal or state. The 2nd Amendment has, as SCOTUS has said, only one function, to restrict the actions of the federal government, not modify, expand or establish powers.
With the declaratory clause nothing was intended other than to re-affirm what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).
So without a doubt the inactive, dependent declaratory clause is only a statement of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right, it only tells us
A POLITICAL REASON why the fully retained right is being forever shielded from government interference..
The framers were very used to constitutional provisions containing inactive declarations of principle.
When one examines state arms provisions one sees statements securing the citizen's right to arms and the antipathy the framers held for standing armies sharing the same constitutional provision. Those concerns were grouped together because they have similar objects, to limit the power of government in one specific arena, military affairs.
Those state provision's inactive declarations, (typically, "and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; . . .") were certainly inactive statements. Nobody believed these provisions really forbade the forming and maintaining of a federal standing army; these were state constitutional provisions with zero effect beyond the state line.
They were merely stating an ideal . . . The declaration, "
[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "
as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the founders / framers each conveyed the same principle and had the same power . . . NONE.
State provisions in force or enacted from the time:
1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and
as standing armies, in 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.
1776 Pennsylvania: 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.
1777 Vermont: That the people have a right to bear arms for the defence of themselves and the Stateand
as standing armies in 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.
1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as,
in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
1790 Pennsylvania: 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.
