The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.
None of the Court’s precedents forecloses the Court’s interpretation. United States v. Miller, decided on May 15, 1939, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. This particular holding, which was recently affirmed by the United States Supreme Court in Caetano v. Massachusetts on March 21, 2016, calls in to question the constitutionality of New Jersey’s prohibited weapons statute, 2C:39-3. Since some of the weapons that are presently prohibited in New Jersey, like stun guns, may be considered to be “in common use for lawful purposes”, those weapons may be protected by the Second Amendment to the Constitution. Being the supreme law of the land, the U.S. Constitution trumps laws (also known as statutes) like New Jersey’s 2C:39-3 and the one that Heller challenged in the District of Colombia.
