Gun Owners Might Benefit from Supreme Court's Copyright Ruling

CNSNews.com ^ | February 07, 2003 | Robert B. Bluey

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(CNSNews.com) - When the U.S. Supreme Court upheld a copyright law last month, the decision had little to do with gun owners. But the ruling sent a signal to Second Amendment supporters, who say they now have another means with which to defend the individual right to bear arms.

The court's 7-2 ruling on Jan. 15 in Eldred v. Ashcroft dealt with the copyright and patent clause of the Constitution and whether Congress had the right to arbitrarily extend copyrights, like it did in 1998 with the Sonny Bono Copyright Term Extension Act.

While nothing in the language of the Eldred ruling had to do with the Second Amendment, Columbia Law School professor Michael C. Dorf noted that only two constitutional provisions use prefatory or introductory language to explain their purpose: the copyright clause and the Second Amendment.

When the copyright case was argued, Dorf said, those who challenged the 1998 law relied heavily on its prefatory clause - "to promote the progress of science and useful arts."

The Second Amendment's prefatory language refers to a "well regulated militia, being necessary to the security of a free state." Gun-control groups have argued that the language implies a collective right to bear arms, rather than an individual right.

Dorf, in a column published on FindLaw this week, said the copyright case suggests that the Supreme Court does not take the prefatory language as seriously as the main clause of the provision.

Using that logic, the Second Amendment would guarantee, "the right of the people to keep and bear arms, shall not be infringed."

"It indicates that seven members of the court recognize that just because a prefatory clause exists, doesn't necessarily mean it drives the overall thrust of whatever issue is being addressed," said Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms.

George Mason University law professor Nelson Lund, an ardent Second Amendment supporter, mostly agreed with Dorf's comparison of the two clauses. Lund, however, said there are differences in grammar between the two.

Even without the Eldred decision, Lund said the Second Amendment's main clause giving an individual the right to bear arms would have held up in court.

"Whichever way the court had gone in Eldred, it would still be the case that the Second Amendment right of the people is not qualified by the militia rights," he said. "The way they came out in Eldred would make it really far-fetched for them to say the operative clause is somehow qualified by the introductory phrase."

The Supreme Court has not ruled on the guarantees of the Second Amendment since 1939 in United States v. Miller. Even though no case is currently before the justices, there has been a mix of lower court decisions on the issue, including Silveira v. Lockyer in the U.S. Ninth Circuit Court of Appeals and United States v. Emerson in the Fifth Circuit.

Independence Institute research director David Kopel, who has written extensively on gun rights, said courts have almost always recognized the individual right to bear arms since the Bill of Rights was adopted.

"If properly read, the militia clause doesn't restrict the Second Amendment," Kopel said. "It tells you its purpose, but it recognizes a right that belongs to the people, not the militia and not the state government. You can fully enforce the opening clause of the Second Amendment and still have a very vigorous individual right."

If the Eldred case does anything for gun owners, Lund said it gives them another argument to make in court or it might sway a justice who is on the fence.

Dorf, who said he is open to both the collective or individual right interpretation, said his comparison of the copyright clause and Second Amendment might never have an impact on gun rights. He saw a parallel between the two, though, and thought there was an interesting connection.

"Before Eldred, individualists and collectivists alike had assumed that any satisfying account of the Second Amendment must explain the relation between the preface and the remainder of the Amendment," he wrote in the column. "After Eldred, however, it is possible that this is no longer true. If so, the individualists may well prevail."

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Indexing

[ml/nj]

While nothing in the language of the Eldred ruling had to do with the Second Amendment, Columbia Law School professor Michael C. Dorf noted that only two constitutional provisions use prefatory or introductory language to explain their purpose: the copyright clause and the Second Amendment.

This is very wrong.

Professor Dorf really needs to take a remedial course on The Constituion. The Preamble ("We the People ...") to the entire Constitution is certainly prefatory language which explains purpose. It is very settled that the Preamble conveys no law. Similarly it should be argued that the "preamble" to the Second Amendment ("A well regulated militia ...") must convey no law.

ML/NJ

[ml/nj]

I have had an email exchange with the Bluey who notes that Dorf included the following parenthetical note

(Of course, the Preamble that precedes the entire Constitution could be argued to have a similar function, but if so it applies to every constitutional provision, not to any particular clause.)

in the original article. Bluey says he regrets the omission and says the complete article can be found at http://writ.news.findlaw.com/dorf/20030205.html.

ML/NJ

[Redbob]

And Prof. Dorf could also benefit from a remedial course in English grammar. Comparing a clause beginning with the preposition "to" with a clause beginning with the article "a" really doesn't make sense.

Per Prof. Roy Copperud, "The words 'A well-regulated militia, being necessary to the security of a free state,' constitutes a present participle, rather than a clause.
It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The right to keep and bear arms is asserted as essential for maintaining a militia.

For a full discussion, see
http://www.saf.org/journal/4_Schulman.html

[supercat]

Similarly it should be argued that the "preamble" to the Second Amendment ("A well regulated militia ...") must convey no law.

It conveys no law, but it clarifies the second part. In particular, it makes clear that it's not about protecting "hunting or sporting weapons".

[BTW, the construct in the copyright power is different; there, the authority to pass copyright laws only extends to those which would promote the sciences and useful arts. The Second Amendment states, essentially, "Because of X, Y". The copyright power states, "[Congress may] do X by doing Y."

Personally, my interpretation of the copyright ruling is that almost nobody in power actually reads the Constitution for what it actually says.

[steve-b]

Columbia Law School professor Michael C. Dorf noted that only two constitutional provisions use prefatory or introductory language to explain their purpose: the copyright clause and the Second Amendment.

Actually, the two are not really parallel. The copyright clause grants Congress the power "To promote the progress of science and useful arts" through the means of "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Thus, the promotion of science and the useful arts is itself the provision, and the limited monopoly is the mechanism for exersizing that provision. The militia clause of the Second Amendment is purely explanatory -- at most, it serves as a guide to the definition of "arms" (forclosing the nukes-and-nervegas straw man).