Replies

A. Preambles Cannot Negate Operative Text.
By its own terms, the rationale of the Second Amendment’s preamble is not exclusive. The operative rights-securing clause is grammatically and logically independent of the preamble. Skilled diplomacy, a powerful army, or adherence to the constitution may sufficiently provide for “the security of a free state,” and still the people would enjoy their right to arms. Most critically, the preamble cannot contradict or render meaningless the operative text.
As Petitioners note, preambles are examined only “[i]f words happen to still be dubious.” Pet. Br. 17 (quotation and citation omitted). “[B]ut when the words of the enacting clause are clear and positive, recourse must not be had to the preamble.” James Kent, 1 COMMENTARIES ON AMERICAN LAW 516 (9th ed. 1858). “The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.” Norman Singer, 2A SUTHERLAND ON STATUTORY CONSTRUCTION § 47.04, at 295 (7th ed. 2007).
The Framers were familiar with these rules of construction. One influential English precedent held:
I can by no means allow of the notion that the preamble shall restrain the operation of the enacting clause; and that, because the preamble is too narrow or defective, therefore the enacting clause, which has general words, shall be restrained from its full latitude, and from doing that good which the words would otherwise, and of themselves, import; which (with some heat) his Lordship said was a ridiculous notion.
Copeman v. Gallant, 1 P. Wms. 314, 320 (Ch. 1716); see also Edward Wilberforce, STATUTE LAW: THE PRINCIPLES WHICH GOVERN THE CONSTRUCTION AND OPERATION OF STATUTES 288-89 (1881).
[G]eneral words in the enacting part, shall never be restrained by any words introducing that part; for it is no rule in the exposition of statutes to confine the general words of the enacting part to any particular words either introducing it, or to any such words even in the preamble itself.
King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723); see also Mace v. Cadell, 1 Cowp. 232, 233 (K.B. 1774) (“if the statute meant to comprehend nothing more than is contained in the preamble, it means nothing at all”).
Preambles are “properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble.” 1 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 326-27 (2d ed. 1851). Accordingly, the Constitution’s other preambles are given no weight. “Although that [opening] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power. . . .” Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with the infinitive that introduces most powers of Congress. The power “[t]o promote the Progress of Science and the useful Arts,” U.S. CONST. art. I, § 8, cl. 8, viewed with the same breadth as the power “[t]o regulate Commerce,” U.S. CONST. art. I, § 8, cl. 3, could stand alone absent the text that follows. In contrast, the Second Amendment’s preamble merely declares a concept. Yet “Congress need not ‘require that each copyrighted work be shown to promote the useful arts.’ ” Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (citations omitted). And this Court does not question whether copyright and patent laws serve the preambular purpose of promoting progress, though some laws might fail such examination. Eldred v. Ashcroft, 537 U.S. 186, 212 (2003).
That the Second Amendment contained a declaration of purpose was not unusual for its day. But such declarative language was never given the transformative effect urged by Petitioners. E.g., Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U.L. Rev. 793, 794-95 (1998). The same Congress that passed the Second Amendment also reauthorized the Northwest Ordinance of 1787, containing this language: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52. But nobody would seriously contend that were religion, morality, or knowledge one day found unnecessary for good government, schools should no longer be encouraged in the states of the former Northwest Territory.
Petitioners argue that the preamble should be given controlling weight because “ ‘it cannot be presumed that any clause in the constitution is intended to be without effect.’ ” Pet. Br. 17 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)). But their citation to Marbury is incomplete—the passage concludes: “unless the words require it.” Marbury, 5 U.S. (1 Cranch) at 174. Because Petitioners urge an interpretation of the preamble inconsistent with the plain meaning of the operative text, and considering the established rules of construction governing preambular language, the “presumption” urged by Petitioners is rebutted. Notwithstanding Marbury, the Court did not give force to the opening preamble in Jacobson or to the Copyright preamble in Eldred.
No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble- based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context. “A bill of rights may be considered, not only as intended to give law, and assign limits to government . . . , but as giving information to the people [so that] every man of the meanest capacity and understanding may learn his own rights, and know when they are violated. . . .” 1 St. George Tucker, BLACKSTONE’S COMMENTARIES, app. 308 (1803)