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[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

[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).