I've always thought that was bad opinion and courts have mostly avoided confronting both the plain language and historical context of the 2nd, which I agree requires a very tortured parsing to deny an individual right.

  Constitutional rights are subject to limitation. Look at freedom of speech from the 1st. We have defamation laws whivch are enforced by government. We have obscenity laws. We have distinctions between commercial speech (subject to greater control) and political speech. We have campaign  and political spending laws.

   If this position is adopted by the Supreme Court it does mean that all existing state and fderal gun laws will be voided nor does it mean new laws would be unconstitional. Remember the D.C. law under question here essentially acts to bar the private ownership of handguns by people who were not "grandfathered" in or have a certain status (active or retired law enforcement and there may be other categories, I'm not sure) so its a very broad (but not complete)ban and nothing approaching a narrowly tailored regulation.

  The real significance would be the starting point of a court's analysis of whether a law is constitutional. If the  individual has no constitutional right to bear arms then government has near plenary power to restrict that and the individual has little constitutional protection as to his "right" (although he may have equal protection arguments in some cases and some laws would violate even the collective doctrine0.

   If there is an individual right then the starting point is now the degreof intrustion on that individual's right and whether it is justified by the "greater good" as deemed by a legislature.  

   With any constitutional right at the very least t he burden will be on the government to show that any  regulation restricting an individual's right is rationally related to a legitimate governmental interest. Maybe more likely, a court might decide regulation must  withstand intermediate scrutiny by being narrowly tailored to address and substantially further an important governmental interest. Even if it is deemed a "fundamental" right and  strict scrutiny were applied  regulations would be permissible where a compelling governmental interest is found and the least restrictive eans to advance that interest are employed by the regulation.

  I don't think this would open the door for corner stores selling RPGs to anyone with the cash, but it would definitely call into question any laws banning or very broadly restricting  sales or possession of handguns or long guns. In the middle wer will have a ton of issues about the degree of governmental interest and the breadth of regiulations as to certain types of wepaons and ammunition. clearly, thegovernment would have a higherr burden if this were to be affirmed by the SC.

The 2nd does not "confer" a right to bear arms. It acknowledges a right which is "God-given" - that is, a little bit of natural law which predates the Bill of Rights. That was the 18th century theory, at least.

"Assault rifles" have not been "banned" since the 1920s. Machine guns have been registered and heavily taxed since the mid-1930s (National Firearms Act). That is not banning. Assault rifles - the real thing - didn't appear until the 1940s. What the gun grabbers call "Assault Rifles" aren't, in any meaningful sense. They just use the term to stampede the public, as people have votes even if they don't know flip about guns.

The 2nd Amendment did not originally refer to weapons which one could carry. Recall the agony the American privateer fleet caused to the Royal Navy and British carrying trade during the War of 1812. Privateers were all privately owned - hence the name. The armed ship was the strategic weapon of the day. A commission as a privateer did not confer a right to be armed. Ships in those days were armed as a matter of routine. Evidently a restricted interpretation of the word "bear" did not preclude such armament. A privateer commission, or, similarly, a letter of marque, meant only that seizure or destruction of British property, or attacking British subjects with guns and swords, was not piracy. The performance of the various American militias on land was not particularly impressive during the War of 1812, but the performance of something essentially indistinguishable from a militia, the privateers, at sea, was a crucial factor in the war.

And please, people, don't cite the Miller decision unless you've read it. It's not that long or difficult. It doesn't say what far too many people think it says. The Miller Court decided to play dumb, and claim that it wasn't aware that a "sawed-off" (whatever that means) shotgun contributed to the efficiency of a militia. As Miller himself had skipped town, no counterargument was offered, and the Court could claim ignorance of the fact that "sawed-off" shotguns were military weapons, and therefore also legitimate militia weapons. They were in fact used by the Army in the war with the Moros, in the trenches in France (hence the military name, "trench gun"), and, after Miller's day, by the Marines in the Pacific, in Viet Nam, and on patrol in Lebannon after the barracks bombing. On the other hand, the Miller decision does not mean that if the Court had stooped to acknowledge the fact that the weapon in question was indeed a legitimate militia weapon, that it would have found for Miller after all. It implied that the Court would at least be receptive to an argument that the 2nd meant that the public could indeed keep and bear, and maybe even transport across state lines, weapons which would be appropriate for the military. But it didn't actually say that. The decision is actually quite useless. All that Miller really tells us is that the SCOTUS shouldn't hear a case if nobody is going to show up to argue it.

 The word "people" nowhere appears in the 5th:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. "

  You are free to have your opinion as to the policy issues and advocate guns for everyone as tactic against crime. Those who want an outright ban as amatter of policy are free to have that opinion as are all the vast multitudes in the middle.

   We were having what I think one of the best discussions I have seen here until you plowed in with a rant.

It means [I] won't give up any constitutional right, even ones [I] may not exercise personally.

I have read Jeralyn's linked post, and find little in it which addresses Henderson's points as they relate to the second amendment's applicability to D.C., and that's only for starters.

What can be said about Henderson's dissent, is that she is quite right in her conclusion that the majority's 51 page plus opinion can certainly be added to the pile of dicta that has been volunteered by other courts equally interested in ignoring the SCOTUS' opinion in Miller.

One cannot deem the second amendment a "personal right," simply because we "love personal rights" so dearly, or merely because words are written into the so-called Bill of Rights, where the words used do not provide a personal right. And, the fact that the second is separated by the third amendment from the fourth provides little support  for the argument, except to that say that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law," does raise the question as to whether the spittle we see on the commander in chief's lower lip on the screens of our tv's implicates that amendment, especially when aired by Fox, this government's mouthpiece.

From a policy point of view, the second amendment - as read by Jeralyn - does not define "arms," as small arms only, so why not nuclear arms, or tanks, or missles, or yada, yada, yada?

Nothing makes for a better breakfast than highly charged constitutional analysis. We all know that if we take more than the hundreds of words found throughout  the constitution we can make a case for any reasonable interpretation. You, Decon, Jeralyn, and the others all take reasonable positions in logical ways, and in ways that the syntax may support. In fact, the pile Henderson coins, and the small pile of words I have left behind here, all fit that category.  

Nevertheless, I do not need to read the rest of the words of other Amendments and so on, in that, as for me, there is no ambiguity requring such a search.

I simply read the text - "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed" - in today's language:  "States," do not fear, we the Feds know you need a malitia to provide security, and so, in that repsect, you as a governmental entity may have your own malitias which may keep and bear arms.  With that, I agree, and today that is the case evidenced by the National guard.

To say, the Second means: "States," do not fear, we the Feds know you need a malitia to provide security, and by the way, everybody and anybody in your state has a right to keep and bear arms. In  this regard it has nothing to do with State's   malitias, and to "me," it is a Reductio ad absurdum.

First, Miller does not declare a collective right.  It says the right (whatever it is) must be resonably related to the preservation or efficiency of a well-regulated militia.  Justice Roberts was correct, in his Senate hearing, in stating that the SC had dodged the issue.  In fact, individual rights were justified in state constitutions (pre Bill of Rights) by broader goals and principles that were not seen as restricting the right to a collective one.  Check out the Virginia Declaration of Rights (Madison sat on the committee that wrote that one up, too).  That is to say, it is not implausible that an individual right was declared in service of a militia under civil control.  

The fear was expressed by both Henry and Mason, that the federal government's power to arm the militia would be claimed as an exclusive power, and could be used to disarm the state militia's.  Madison and Marshall disputed this, but the Second could be seen as a response to this worry.  Of course, this doesn't dictate an individual right, only makes it seem plausible (it could be, consistent with this view, a collective right, exercised by the people through their state legislatures).

The language of the US Constitution also suggests some interpretations.  While the federal government has the power to raise armies, the Constitution speaks of the militias as pre-existing bodies (as indeed they were, just as the states, for the most part, had constitutions and militias that predated the US Constitution).  Indeed, as Rufus King said (as a member reporting the language out of committee, in response to a question at the Philadelphia Convention), the federal power to provide for organizing the militia was restricted to deciding what portion were to be officers, what portion enlisted.  

Each state decided it's own membership, and indeed it's own rules for exclusion from serving.  These persist to the current day, and have not been overruled by federal law.

As Madison made clear (in Philadelphia) the power to provide for arming extended to determing who would provide the arms, and what arms were to be provided.  Thus the first federal militia act had all males of military age to provide their own weapons (as specified), and with the War of 1812, the federal legislature commanded states to arm their militias.

It seems to me that Silberman is wrong on this point.  The idea that carrying arms is subsumed under bearing arms doesn't stand up to analysis.  There is a body of loose usage, but it is the smallest part of usage.  To bear arms is to serve, not to carry (thus the first part of the Second Amendment, mentioning the militia).

Just reacting from the news reports, it strikes me that Henderson has a point.  Militias were creatures of the states, and the guarantee of the Second Amendment does not extend beyond the states.  The SC has never incorporated the Second in the Fourteenth.

This does not resolve the problem of individual versus collective.  Both seem plausible.  The fulcrum point, I think, is that the Second prohibits the federal government from diarming state militias, whose composition was a state matter.

Interstingly, there seem to be only two statements of interpretation that were more or less contemporaneous with the adoption of the Second.  One was by Tench Coxe.  The other was by William Rawle.  Both endorsed the individual rights view.  And both had both legal and real world experience relating to the matter.

Tench Coxe sold arms to the militia, came from a distinguished legal family, and indeed had some command of the law himself.  Rawle was offered the position of Washington's first Attorney-General of the US, but turned it down.  He was Quaker, who prosecuted the malefactors of the Whiskey Rebellion.  He taught law at Pennsylvania, and authored the standard legal text of the day.

[Miller] says the right (whatever it is) must be resonably related to the preservation or efficiency of a well-regulated militia.

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

People who want to enshrine an individual right, read the word "interpret" as "resolve ambiguities in the text," so they say that the unambiguos parts such as "the right of the people" clearly mean it's an individual right, but terms open to interpretation (such as "arms") must be read in a way consistent with assuring the continuation and render possible the effectiveness of the militia.

Anyone who says that the D.C. Circuit was "ignoring the SCOTUS' opinion in Miller" either hasn't read Parker v. D.C., or is deliberately trying to deceive others that haven't read it, because the opinion clearly lays out its rationale for interpreting Miller as it did.

To be sure, as the District argues, the Miller Court did draw
upon the prefatory clause to interpret the term "Arms" in the
operative clause. As we note below, interpreting "Arms" in
light of the Second Amendment's militia purpose makes sense
because "Arms" is an open-ended term that appears but once in
the Constitution and Bill of Rights. But Miller does not
command that we limit perfectly sensible constitutional text
such as "the right of the people" in a manner inconsistent with
other constitutional provisions. Similarly, the Second
Amendment's use of "keep" does not need to be recast in
artificially military terms in order to conform to Miller.

Interstingly, there seem to be only two statements of interpretation that were more or less contemporaneous with the adoption of the Second.  One was by Tench Coxe.  The other was by William Rawle.  Both endorsed the individual rights view.  And both had both legal and real world experience relating to the matter.

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." [emphasis added]

First, if you read the Virginia Declaration of Rights, you will notice a curious structure to some of the rights.  They are stated in the form of a chain of clauses, connected and separated by semi-colons.  They proceed, on occasion, from individual rights, through a chain to sometimes very specific though general principles.  The arms amendment, for instance (if memory serves), ends in a statement that the military must be subordinate to the civil authority.

Now nobody with any sense would claim this was a statement of the scope of the right  --  that the right to arms enjoyed only the scope of maintaining the military subordinate to the civil.  The statement is really an argument, proceeding through a chain of justifying reasons, to the one most felt palatable politically.  Madison served on the committee that drew up these rights.

Turning to the Second Amendment, the first clause should be read as a justifying clause, not a statement of scope.  Nobody suggests that the right was limited in scope to maintaining a free state  --  the militia served as a police force too.

Secondly, Silberman (for whom I have great respect), simply does not have a grasp of the specific meaning of 'arms' in late 18th century usage.  He views it as an open-ended term, cited Aymette as meaning weapons in general, and then presupposes (nearly) an individualist interpretation to suggest that it should be read as weapons for individuals.

This is wrong.  'Arms' were already, by the very meaning of the word, restricted to weapons of war suitable to individuals (check out the 1797 definition of the OED).  In fact, check out the Articles of Confederation, which opposes arms to field pieces and to camp equipage.

'Arms' derives from the etymological root 'ar' which is to join or fit closely to (check out the Oxford dictionary devoted to etymology).  Arma was contrasted with things that were projected, like the tela (a net).  Arma were weapons offensive and defensive, joined to the body of an individual, for close combat with individuals.  It particularly applied to shields (see Virgil).  It is a mass term.

'Arms' suggests an individual right  --  or (less plausibly) the right of the states to only provide weapons for the individual. The confusion comes from 'arming', which was so loosely employed to include all equipping and provisionally (a metaphorical meaning, as in everything necessary to a purpose  --  also see the OED).

For a wholly fanciful contortion of the etymology, see Wills' article in the 1996 (or was it 1995?) New York Review of Books.  He goes to a full verb form  --  a verb for "to fit out", which he translates as "equip".  From this he reads the meaning of a full verb form back into the etymological root (ar), and then brings it forward in time to inform the use of 'arms' in the Second.

True, the meaning was stable (as opposed to its extension), but the meaning he assigns it is wrong, and is based on an entirely fallacious etymology, employing a truly fanciful technique.

So, the use of 'arms' in the Second suggests an individual right.

Silberman is also wrong in putting the loose usage of 'bear arms' on the same level as the strict usage.  'Bear arms' just means the right to serve in the militia.  This is supported by simultaneous colonial statutes declaring the duty to bear arms, and prohibiting the carrying of arms.  

That is, the federal government could not reach into the state power to determine the make-up of the militia, thereby creating a force responsive to a temporary federal majority.  This is a protection against a select militia of Federalists.

The right to "keep" is just that  --  an individual right to possess.  Those are the twin rights.  An individual right to serve in the militia, and an individual to possess those weapons used by individuals severally (not artillery).  This accords with Jefferson's draft for the Virginia Constitution.  He certainly was not declaring an inescapably individual right to possess artillery.

On the subject of State, Silberman errs again.  It is jejeune to simply read 'State' as synonymous with 'country', based on the presence of the latter in Madison's first proposal.  First, there were no committe records back then to establish a legislative history.  Secondly, Madison, in a letter to one of the Nicolas brothers, stated that some of the changes were for the worse (without specifying which).

One of the supposed fears of the Antifederalists, is that the state militia would be turned into a national force and marched off again and again across the country, to put down local problems (Mason expressed this point, in particular).  The more effective a force a state militia might be, the more likely that state would be so burdened.  The change to "State" in the Second was probably well-considered, and meant to pacify the fears of Antifederalists.  The "State" of the Second, is the same State as the rest of the Constitution.  Henderson is right.

I think the Second declares an individual right (against the federal government, but not necessarily the state) to serve in the militia, and to keep individual weapons.

This brings me to my last point.  In an effort to strip the Second, many historians today have overly denigrated the role of the militia in the War of Independence.  Their abilties were mixed.  That was a result of the fact that they were not in the field for long periods.  The standard histories of the Roman army make clear that that the militia armies of the Republic were mediocre in their first few battles also.  They however, stayed in the field, and climbed the learning curve.  So much so, that Polybius attributed the entire success of the Roman enterprise to the fact that they relied on militia.

This brings up an historiographical weakness.  Modern historians have a fondness for turning point battles.  There were few if any such battles where the militia provided a decisive contribution.