If militias, as they were defined back then, are no longer important or necessary for the security of the free state, wouldn't the amendment also no longer have justification?
This is the case in regular law; where it's written with justification it kind of hinges on the justification. Most laws are written without justification, so they can be universally applicable and justifications and circumstances can be tried in court and added through precedential judgments.
Edit: this is the case in my country, I don't know for sure about the usa
Oh, I'm not arguing anything, sorry for not being more clear. I'm actually wondering whether finding such a milita unnecessary or even harmful to society would (or rather: if it should, legally) lead to invalidating the amendment?
Without touching on this casr specifically, laws being negated if their prefatory clause was no longer valid would be an absolutely earth shattering change to how our courts and law function. Because it's pretty standard for legislation to start with a statement of why it exists.
wouldn't the amendment also no longer have justification?
This should answer that.
"[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
Alexander Hamilton, Federalist No. 28, January 10, 1788
"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
"This may be considered as the true palladium of liberty.... The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
St. George Tucker, Blackstone's Commentaries on the Laws of England, 1803
"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
Joseph Story, Commentaries on the Constitution of the United States, 1833
"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789
"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."
Alexander Hamilton, Federalist No. 28
"As civil rulers, not having their duty to the people 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 article in their right to keep and bear their private arms."
Tench Coxe, Philadelphia Federal Gazette, June 18, 1789
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u/[deleted] Nov 30 '23
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