The 2nd Amendment as a dead letter?

As we noted, the Second Amendment provides:

A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms shall not be infringed.

U.S. CONST. amend. II.

The provision's second comma divides the Amendment into two clauses; the first is prefatory, and the second operative.  Appellants' argument is focused on their reading of the Second Amendment's operative clause. According to  appellants, the Amendment's language flat out guarantees an individual right "to keep and bear Arms." Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like "Arms," does not qualify the right guaranteed by the operative portion of the Amendment.

The District of Columbia argues that the prefatory clause declares the Amendment's only purpose -- to shield the state militias from federal encroachment -- and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment "protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state." Individuals may be able to enforce the Second Amendment right, but only if the law in question "will impair their participation in common defense and law enforcement when called to serve in the militia." But because the District reads "a well regulated Militia" to signify only the organized militias of the founding era -- institutions that the District implicitly argues are no longer in existence today -- invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today -- in fact, at oral argument, appellees' counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District's position to be that the Second Amendment is a dead letter.

We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment's exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as "Congress shall make no law disarming the state militias" or "States have a right to a well-regulated militia."