I am not a lawyer, but

if the Second Amendment was meant to provide for creating a state army/organized militia (the “collective rights” view,) wouldn’t that be at odds with U.S. Const. art. I, § 10, cl. 3 “No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace…?”

Probably addressed in one of the Heller briefs I wasn’t able to read, but this is what you get reading the Constitution at midnight. 


Comments

I am not a lawyer, but — 1 Comment

  1. At the very least, if there is an inconsistency, the Amendment would control, since amendments are changes to the constitution. (E.g., the Constitution says that state legislatures elect U.S. Senators, but the 17th Amendment says Senators are selected by direct election; the amendment controls.)

    Perhaps the states demanded the 2nd Amendment because they were concerned that the phrase “keep troops” had a militia-related connotation. 😉

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