How does the pro-gun side explain the preamble’s reference to a “well regulated Militia”?
The Supreme Court has construed the Fourteenth Amendment as having “incorporated” ― i.e., made applicable to the states ― most of the individual rights granted in the first eight amendments. The Court has not yet, however, addressed whether the Second Amendment should likewise be incorporated. The issue is not directly presented in this case because, of course, the District is not a state. But the issue lurks close to the surface. If the Amendment only limits the authority of the federal government, it accomplishes far less than the pro-gun advocates desire. In the end, I think, it is impossible to separate the incorporation issue from the merits. If the Second Amendment means what Heller says it means ― as protecting a fundamental individual right, untethered to service in a state militia ― it is difficult to see why it would not be incorporated. See Amicus Brief of Texas et al. 23 n.6 (“[a]lthough the Court need not reach the issue of incorporation in this case, amici States submit t
