The scope of the second amendment is surely debatable. But Burger’s “epic rant” expresses a view of the second amendment that’s not only rejected by Heller, but was wrong from inception. The idea of the Second Amendment as protecting a collective right is irreconcilable with the text: http://www2.law.ucla.edu/volokh/common.htm. See also: https://www.nytimes.com/2007/05/06/us/06firearms.html. Reading the contemporaneous works of the Founders leaves little doubt that the second amendment protects the collective right to self determination through the individual right to own weapons of war:

> Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops. - Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

I’m not sure if the “collective rights” view is as shoddy as “penumbras,” but it’s surely more offensive to the Constitution to read a right out of it than to read rights into it.

Justice Stevens has a better write up in the Atlantic about his issues with the Heller verdict.

https://www.theatlantic.com/ideas/archive/2019/05/john-paul-...

I do agree that Heller is sort of a strange re-contextualization that seems to arise because nobody really wants to deal with citizens owning the full gamut of modern military arms even if that's the natural implication of the 2nd's wording.

Steven's essay isn't easy for me to buy into in multiple respects. Like even his starting premises are basically implying that the Revolutionary was prosecuted by a bunch of criminals who, horror of horrors, stockpiled weapons in theirs homes and churches, which, as much as I dislike the modern Tea Party BS, has also long been lionized as part of America's national identity.

A lot of ink has been spilled on Heller, but here's my two cents on why I don't find Stevens' reasoning compelling.

> Point 1: "When I joined the Supreme Court in 1975, both state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia."

A lot of precedent that was on the books when Stevens joined the Supreme Court in 1975 was wrong. At that time, the Supreme Court had gutted federalism using the Commerce Clause in Wickard v. Fillburn. 20 years later, Lopez started getting things back on track. It wasn't until the 1990s that New York v. United States and Printz gave teeth to the Tenth Amendment. There is hope yet of undoing some of the damage wrought on contractual freedoms by FDR's unconstitutional threats of court packing.

> Point 2: "Colonial history contains many examples of firearm regulations in urban areas that imposed obstacles to their use for protection of the home."

These regulations aren't actually inconsistent with the Second Amendment being an individual right. Note first that Stevens is engaged in a bit of a motte-and-bailey argument. The general proposition of his argument is that the Second Amendment is an individual right. But he's recycling arguments from Heller, where the dissent took a narrower tack: urban areas present unique challenges that may justify burdening Second Amendment rights. The latter argument is obviously narrower and easier to defend than the more general one. Second, the laws he cites, such as regulations on gun powder storage, can be justified as neutral as to gun rights. Wooden cities at the time were highly flammable and it made sense to regulate gun powder storage for fire reasons. That may be justifiable, even if it has an incidental effect on second amendment rights. But that doesn't mean that, in 1789 Boston, a gun ban--a direct attack on second amendment rights--would've been considered acceptable.

> Point 3: "Until Heller, the invalidity of Second Amendment–based objections to firearms regulations had been uncontroversial."

For that point, he cites 20th-century legislation. That tells us nothing about what the Second Amendment means. Lots of unconstitutional laws were enacted with minor opposition at the time.

> Point 4: "So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime."

Again, this just means the Supreme Court believed in its incorrect precedent, until it didn't. It doesn't tell us anything about what the Second Amendment means. What Madison wrote in Federalist #46, however, does: https://www.constitution.org/fed/federa46.htm

> Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

He criticizes European governments for being "afraid to trust the people with arms." He's clearly talking about armed citizens. He also conceives of those armed citizens organizing at the local level to overthrow the national government. But in his conception, the militia is BYOG (bring-your-own-gun). The right to bear arms doesn't attach to the militia itself. It attaches to "the people," who may then be organized into militias.

The meaning of amendment itself is plain enough that many who argue for certain interpretations seem to be doing so in bad faith. As for why it has rarely mattered, at the very least until it was for-sure incorporated it had a much more limited importance at the national level since states could pretty much do absolutely whatever they felt like.

In any case, the militia clause is clearly an explanation and/or justification for what follows. It's the "why" they decided to include the amendment, and could just as soon say "because bats have wings," for how much bearing it has on the other clauses. Though I do agree the whole thing has way too many commas.