Legal Commentary

Both because plenty of others are far more well-versed in the debates than I am and because my own views are a bit odd, I've largely stayed out of the Second Amendment conversations invigorated by Heller and McDonald, and the concomitant debates over originalism in constitutional interpretation. There's one place, though, where Second Amendment originalism does dovetail with some work I've done, and that's with regard to the "Militia Clauses" of Article I, which empower Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." 

To get to the point, here's my basic thought: As I've argued at some length elsewhere, the "militia" for constitutional purposes has basically become a dead-letter, thanks to both Congress and the Supreme Court. Congress has rendered the militia obsolete by (1) authorizing use of the federal regulars in circumstances where the Constitution appears to only contemplate use of the militia; and (2) setting up a "dual enlistment" system with the National Guard pursuant to which guardsmen are always federal regulars (and not militia) for constitutional purposes, even when they're only acting in their non-federal capacity. And the Supreme Court has sanctioned these developments in a series of lesser-known decisions, especially the Selective Draft Law Cases during World War I (which rejected an argument that draftees could only be used in the circumstances specified in the Calling Forth Clause) and Perpich v. Department of Defense in 1990 (which rejected a similar argument with regard to guardsmen).

If all of the above is true, i.e., if history (along with Congress and the courts) has rendered Article I's reliance upon the "militia" obsolete, should that have any bearing on whether we look to the original understanding of the militia in interpreting the Second Amendment? I recognize, as I must, that the ship has basically sailed. But isn't there at least an academic argument that where different provisions of the Constitution refer to the same entity, it makes little sense to apply different methodologies to interpreting those distinct provisions? Or, put another way, if Heller and McDonald are methodologically correct, might the Selective Draft Law Cases and Perpich be wrong?