A well regulated Militia,

[Eleanors38]

18. I've read this and similar essays, both in DU & elsewhere.

I don't know how "settled" the law was since through much of the first 2 centuries since the revolution there have been fewer than than a dozen SCOTUS cases that even mentioned 2A.

He didn't mention the Miller case in his militia clause argument, but the ban on short-barreled shotguns came as a result of government counsel's argument, and not of defendant Miller: He was dead and his lawyer a no-show when the case was heard.

Not much argument about the militia service requirement he references, don't know what is "surprising" there. But that does not impinge on the RKBA being retained by "the people" unless, as he seems to imply once again, that the "justification" clause conditions the "operative" clause. It does not.

I can't link on this hand-held, but Eugene Volokh in his essay "The Common Place Second Amendment" (google this) makes a sound argument that "justification" clauses did not impinge in "operative" clauses, nor cause a right to "expire" once the justification (militia) no longer exists; it is merely a justification.

Tellingly, Volokh cites several state constitutions which use the same justification-operative language structure when listing Other rights. Who would argue that such justifications condition civil rights in those states? Nocera's views on 2A are outliers when compared with the bulk of scholarly work on 2A.

http://www2.law.ucla.ed