Comment by jack_h

If you change what the 2nd says then it would be interpreted differently. That would not have the same practical effect either, it would invalidate a chunk of the Militia Acts of 1792.

I understand that one side of this debate really looks towards the prefatory clause as somehow being operative, but that doesn't even mesh with contemporary usage of the pattern. Two very analogous examples:

> The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.

-- Massachusetts Constitution of 1780, pt. I, art. XVI.

> The liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved.

-- New Hampshire Constitution of 1784, pt. I, art. XXII

This was in fact a very common construction in early American legal history. While membership in civil society may impose civic duties and responsibilities the foundational philosophy underpinning these amendments, including the 2nd, is that civil society could not abolish natural rights. The right to self-defense is deeply rooted in English common law stretching back nearly a thousand years. We therefore arrive at my two original quotes from Representatives Bingham and Howard addressing what they considered a weakness in the original construction of the Bill of Rights for which the people had no redress; Howard even mentions the operative clause specifically. They are not the only ones to mention this either given the backdrop of Southern Black Codes.

> He should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.

-- Samuel Pomeroy, Congressional Globe, 39th Cong., 1st Sess., p. 1182

> As citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.

-- James Nye, Congressional Globe, 39th Cong., 1st Sess., p. 1073

The Second Freedmen’s Bureau Act even plainly states that "the right… to have full and equal benefits of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery."

To say that incorporation doctrine of any variety would not incorporate the 2nd would be to ignore both founding era law, philosophy, and the context surrounding the passage of the 14th which would render it a useless doctrine.