The statute, 10 U.S.C. 311, distinguishes between the organized militia (the National Guard) and unorganized militia (Everyone else over 17 years of age). Since the initial clause of the 2A states that a "well-organized militia [is] necessary to the preservation of a free state," the subsequent clause about the right to bear arms on its face does not apply to the unorganized militia, but only to an organized militia.
Here's the statute:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
10 U.S.C. § 311
Here is the crucial passage from one typical case of how a (rather conservative) Court of Appeals dealt recently (1996) with an attempt to hide behind 10 U.S.C. 311. It treated the "organized: militia as essentially fictional -- "hypothetical or sedentary" as the Court put it.
Alito was on the panel and dissented, but not the grounds that membership in the organized militia meant that there is some sort of responsibility to belong to a militia or requirement, duty, obligation, responsibility, or even a right to bear arms, but because he thought that in the light of Lopez v. US, the commerce clause powers of Congress don't permit the federal govt to regulate the possession of machine guns (to put it roughly). For him, the issue was federalism under the 10A, not the right to bear arms under the 2A.
"Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity. Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. § 311(a): The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are ... citizens of the United States.... Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976)."
U.S. v. Rybar 103 F.3d 273, *286 (3rd Cir. 1996)
--- Jordan Hayes <jmhayes at j-o-r-d-a-n.com> wrote:
> > The 2A [...] does suggest that a
> > well-organized militia is necessary to the
> security of
> > a free state, but it does not say or suggest even
> > there that any citizen has a responsibility to
> belong
> > to such a militia ...
>
> I believe Title 10 US Code 311 has clarified this
> issue for the modern
> day. It turns out there are two militias. I'm not
> a lawyer, but I
> read things here and there.
>
>
http://www.law.cornell.edu/uscode/search/display.html?terms=militia&url=/uscode/html/uscode10/usc_sec_10_00000311----000-.html
>
>
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