In an effort to help, I sent the following to Gura & Possessky:
“I read with great interest your brief in the “Heller” case. I think that it is a magnificent document, shredding the arguments of the District of Columbia.
There is, however, one point that I don’t think you made regarding the issue of the preamble. I hope that if you find my statement below to be helpful, you can supplement your brief or otherwise get this information before the Court. At the very least, it will give you an additional arrow in your quiver at the time of the hearing before the Court this Spring.
Please note that what follows clearly isn’t itself suitable for submission, but the idea conveyed should be sufficient to determine its worth (or lack thereof).
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Advocates of the preamble as operative law make the assertion that only people actually in the militia have a right to arms, and then only in the performance of their militia duties. OK, fine, let’s take that to its logical extreme.
Presently, U.S.C. Title 10, Section 311 states that the militia is composed of “all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.” Section 311 goes on to indicate that the National Guard and the Naval Militia compose the organized militia, and all other militia members are in the unorganized militia.
Let’s now propose a hypothetical situation: Congress ratifies a bill, and the President signs it into law, the substance of which changes the definition of the militia to “...all able-bodied males at least 18 years of age and, except as provided in section 313 of title 32, under 19 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
Is this highly limiting change in the definition of the militia sufficient to deprive every other citizen of the right to keep and bear arms? According to the logic of those who view the preamble as operative law, the answer would be “yes.” Such would be, however, absurd on its face to the drafters and ratifiers of the 2nd Amendment. It would be akin to the initial, rejected, text of what is now the 2nd Amendment, wherein the Congress could have declared all persons to be religiously scrupulous - and thus deprived of arms because they couldn’t be part of the militia.
Let us take this one step further: What if, in conjunction with the change of the definition of the militia, Congress and the President enacted a draft, forcing all males to report for 2 years of service on the day when they turn age 18. The result would be that NO ONE would be part of the unorganized militia, a plainly absurd, and constitutionally improper, result.
Is that what the drafters and ratifiers of the 2nd Amendment intended?
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Again, I hope that this information will be of use to you. I don’t require any thanks or attribution, but I will be available for any consultation (for no fee) that you may need or desire.”
Very truly yours,
Etc.
Methinks the issue was suitably addressed in the section reviewing revolutionary history. At that point, militias were flatly illegal and actively prosecuted - the ultimate end to your concern. Nonetheless, the Founding Fathers engaged in their natural right to RKBA, formed militias, and acted against an oppressive tyrrany. Heller then goes on later to address the “strict scrutiny” view, reaching a conclusion that naturally precludes the scenario you submit: whatever standard of review applied must not be suceptable to “tweaking” into oblivion, and must not be subject to remanding back to lower courts for more “findings”.