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Supreme Court Copyright Ruling May Have Important Implications for 2nd Amendment Gun Rights
FindLaw ^ | Feb. 5, 2003 | Michael C. Dorf

Posted on 02/05/2003 8:00:48 AM PST by berserker

Recently, in Eldred v. Ashcroft, the Supreme Court declined to strike down the 1998 Sonny Bono Copyright Term Extension Act. The Act had extended all current and future copyright terms by twenty years. (Previously, copyright protection had generally lasted for the lifetime of the author plus fifty years; now it lasts for the lifetime of the author plus seventy years.)

The decision is important in its own right. Yet it may ultimately hold even greater significance if its logic is applied in what may seem a completely different context: gun control and the Second Amendment.

Does Eldred Mean Prefatory Language Will Generally Be Ignored?

The Constitution's Copyright & Patent Clause grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In Eldred, the plaintiffs placed heavy reliance on the prefatory clause declaring the purpose of the copyright grant: "To promote the Progress of Science and useful arts." They argued that extending existing copyrights did not serve this purpose. Extending future copyrights might "promote ... progress" by giving authors financial incentives to create more, and better, works. But for works that have already been created, no further incentives are needed.

A 7-2 majority of the Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, rejected this argument. It pointed out that prior statutory extensions of copyrights--in 1831, 1909, and 1976--had applied to existing, as well as future, works. And it found that Congress could have rationally believed that it was only fair to give the same protection to holders of existing and future copyrights.

Putting aside the merits of the Eldred ruling (which were discussed on this site in a recent column by Chris Sprigman), now that it is law, what will its impact be? Does it mean that constitutional prefatory language can effectively be ignored by the Court? If so, that may have a profound effect on interpretation of the Second Amendment.

The Significance of the Second Amendment's Prefatory Language

The Second Amendment, like the Copyright & Patent Clause, contains prefatory language that declares its purpose, and can be read to limit its scope. Strikingly, it is the only other constitutional provision that does so. (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.)

Specifically, the Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." What is the significance of the prefatory language "A well regulated Militia, being necessary to the security of a free state"? Does it simply declare the Amendment's purpose, but lack any independent force of law? Or does it serve to limit the Amendment's scope?

Put another way, does the right declared by the Amendment belong only to the "militia" (or the People as a whole), as the prefatory language suggests? Or does it belong to individuals, as the rest of the Amendment, standing alone, could be read to imply?

That issue matters a great deal. It has already divided federal appeals courts, and will likely soon be considered by the Supreme Court.

Indeed, in a separate concurrence in the 1997 case of Printz v. United States, Justice Thomas indicated that the issue was ripe for consideration. The last time the Court addressed the issue was in 1939, in United States v. Miller, and courts and commentators alike have found that decision somewhat opaque.

To be sure, the Court can avoid the issue for now, for the appeals court decisions rendered so far do not present a perfect conflict. (One involved a federal statute; one concerned a California law; and neither struck the relevant statute down). But eventually, the high court will have to confront the question.

In an earlier column, I discussed the Second Amendment issue as it stood before Eldred. Now, however, Eldred may have changed the contours of the legal terrain in a way that matters a great deal.

How Eldred Affects Individualist and Collectivist Second Amendment Views

If the prefatory language indeed limits the Second Amendment right to bear arms, then Congress and the states likely retain the power to broadly regulate gun possession. On this reading, the right is one of the People collectively (and state militias), not of individuals.

There is some historical evidence for this understanding, commonly called the "collective right" view: The Second Amendment was inspired by fears among Anti-Federalists and others that a too-powerful federal government would use a standing army to dominate the states. Perhaps the best evidence for the collective right view is the Amendment's own preface. Accordingly, in adopting the collectivist understanding, the U.S. Court of Appeals for the Ninth Circuit, in its 2002 ruling in Silveira v. Lockyer, substantially relied on the Amendment's prefatory language.

On the other hand, if the prefatory language can basically be ignored, the right would seem to be an individual one. Imagine that the Second Amendment simply read: "The right of the people to keep and bear Arms, shall not be infringed." A natural reading of the language might then suggest that the right was an individual right--like many others in the Bill of Rights, which similarly lack prefaces declaring their purposes. (No doubt that is why the NRA website includes the truncated version of the Second Amendment as its motto.)

Again, there is separate evidence for what is sometimes called the "individualist" view. Those who support it say it is individuals who have the right to "keep" arms so they can "bear" them when called up for service in a state militia, but may otherwise use those arms however they see fit. And prior to Eldred, in United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit took this view. But ignoring the preface, as Eldred suggests is a legitimate interpretive move, would strongly favor the individualist view of the Second Amendment.

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. After Eldred, however, it is possible that this is no longer true. If so, the individualists may well prevail.

How Far Does Eldred's Logic Go?

Eldred's ruling, however, may not be applicable in the Second Amendment context. After all, despite the parallels, the Copyright and Patent Clause is worded differently, and has a different history from, the Second Amendment. For example, in Eldred, Justice Ginsburg noted that Congressional practice consistently permitted retroactive extension of copyrights. But in contrast, early American practice permitted extensive regulation of gun ownership.

Moreover, Eldred involved a constitutional provision conferring power on Congress--not one that, like the Second Amendment, describes a right of the People, or of individuals (depending on one's view). The difference is significant because the effect of Eldred was to leave the underlying issue to the democratic process via Congress. The decision was expressly justified as an instance of judicial restraint.

In contrast, a decision to follow Eldred in the Second Amendment context, and ignore the Amendment's preface, would have the effect of limiting what Congress--and the democratic process--could do. Thus, it would constitute an instance of judicial activism, not judicial restraint. Or, to put the contrast more simply, Eldred gave Congress a free hand in the copyright context; a similar holding would tie the hands of Congress and the states in the gun control context.

In sum, the Eldred Court's treatment of the Copyright and Patent Clause's preface suggests an interesting line of argument about the Second Amendment, and its preface. In the end, however, that argument will have to stand or fall on its own merits, due to the contrasts between the two constitutional provisions.

Ultimately, then, Eldred really is a case about Mickey Mouse, not Yosemite Sam or other (real-life) gunslingers.


TOPICS: Government
KEYWORDS: amendment; banglist; control; elred; emerson; gun; handgun; second
Link to court opinion Elred v. Ashcroft.
1 posted on 02/05/2003 8:00:48 AM PST by berserker
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To: berserker
I dis-agree that Ginsburg's decision ignores the prefatory language. She rather declined to accept plaintiff's assertions as to how it should be applied as a practical matter. The unspoken point in the Constitution is that people will be more likely to share their inventions if they can expect to profit from them.
2 posted on 02/05/2003 8:06:29 AM PST by BenLurkin
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To: berserker; *bang_list; Victoria Delsoul; Travis McGee; Squantos; harpseal; sit-rep; Noumenon; ...
On the other hand, if the prefatory language can basically be ignored, the right would seem to be an individual one.

What BS. This guy doesn't know what he's talking about.

3 posted on 02/05/2003 8:15:52 AM PST by Sir Gawain
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To: Sir Gawain
"What BS. This guy doesn't know what he's talking about."

Exactly. My right to KABA doesn't depend on manipulating the meaning of words or a truncated statement of that right.

4 posted on 02/05/2003 8:20:21 AM PST by Badray
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To: BenLurkin
people will be more likely to share their inventions if they can expect to profit from them

True, which might justify adding to copyright lengths of future works (although I doubt anyone honestly believes the difference between life+75 and life+95 is going to cause works to be created which otherwise wouldn't). But it's logically impossible for retroactive extensions to promote creation. The bill was a blatant payoff to Hollywood, and I agree with the dissenters that at least the retroactive portion is unconstitutional.

5 posted on 02/05/2003 8:21:20 AM PST by ThinkDifferent
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To: berserker
Horse poop.

The ruling has zero affect on the 2nd Amendment or the RKABA. The author's opinion is an absurd conclusion.

6 posted on 02/05/2003 8:23:58 AM PST by FreeTally (How did a fool and his money get together in the first place?)
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To: Sir Gawain
Yeah, but his inability to know up from down is fairly representative of our current crop of legal scholars, "our best Constitutional authorities" -- feh!

The "non-mainstream/wacko" Gun Rights people have the best reconstruction of original intent. Would that their minds and scholarly efforts be brought to bear on the copyright and patent clause as well.

7 posted on 02/05/2003 8:28:30 AM PST by bvw
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To: berserker
The author would have much more credibility if the 2nd Amendment were correctly quoted.

There is only one comma in the the original Constitution.

It makes a difference to the context.

8 posted on 02/05/2003 8:30:04 AM PST by wcbtinman
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To: berserker
My interpretation of the second amendment, before it was interpreted for me, was that the people regulated the militia by being armed.
9 posted on 02/05/2003 8:37:48 AM PST by Nephi (Extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.)
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To: berserker
WE, are the militia. You & me..THE PEOPLE. Who made up the militia? Everyday people...with their OWN guns, they WERE NOT given to them. And, they drilled on Town Greens, not military installations. When they say militia, they say WE THE PEOPLE. PERIOD.

Funny, but WHY are ALL the amendments that make up the Bill of Rights of, for & by The People...EXCEPT THE 2ND AMENDMENT? Why not the 5th, the 1st? Hmm?

10 posted on 02/05/2003 8:47:50 AM PST by Puppage (You may disagree with what I have to say, but I will defend to your death my right to say it.)
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To: berserker
While I believe the author's conclusion about the 2nd amendment is absurd, the copyright question is far more important than it would seem on the surface to most people.

I believe Lawrence Lessig has one of the most comprehensive explanations of the current (messed up) state of copyright law here:

http://www.oreillynet.com/pub/a/policy/2002/08/15/lessig.html

I highly recommend the mp3 version as it is much more enjoyable.
11 posted on 02/05/2003 8:48:20 AM PST by Lizard_King
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To: berserker
"Put another way, does the right declared by the Amendment belong only to the "militia" (or the People as a whole), as the prefatory language suggests? Or does it belong to individuals, as the rest of the Amendment, standing alone, could be read to imply?"

Since in the view of the FOunding Fathers "the militia" was all able bodied males capable of bearing arms, this is an irrelevancy except in the minds of liberal left-wing revisionists who are apparently always intent upon misinterpreting and redefining original intent.

12 posted on 02/05/2003 8:51:09 AM PST by ZULU
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To: Sir Gawain
If the argument made by the author held then it would tend to even further bolster arguments about the Second Ammendment being a recognition and guarantee of the individual right.
13 posted on 02/05/2003 8:51:28 AM PST by harpseal (Stay well - Stay safe - Stay armed - Yorktown)
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To: Nephi
I believe "regulated" meant "trained" in colonial parlance.

Like "gun control" means being able to control a gun, i.e. to hit a target with it.
14 posted on 02/05/2003 8:54:17 AM PST by ZULU
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To: Badray
The way I inderstand it, the Bill of Rights merely recognizes certain basic human rights, it in itself doesn't "grant" those rights, because they come from God.

Every creature has an inherent right to self-defense. The Second Amendment addresses that, as well as the fear of the Founding Fathers that a powerful central government would be more likely to abuse the basic rights of its citizens if those citizens did not possess the wherewithal to overthrow said abusive government. That is very clear in the Declaration of Independence.
15 posted on 02/05/2003 8:57:42 AM PST by ZULU
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To: ZULU
Since the left is trying to construe people's interpretation of the second amendment to their way of thinking, I think my interpretation reqires less contortion and would be in line with most people's assumption of the mindset of our freedom loving founders.
16 posted on 02/05/2003 8:58:37 AM PST by Nephi (Extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.)
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To: ZULU
I believe "regulated" meant "trained" in colonial parlance.

I hear that stated a lot in RKBA circles but never see anything to back it up. If you have any references at all to indicate that that was part of their usage, I'd love to see it.

17 posted on 02/05/2003 9:00:00 AM PST by inquest
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To: ZULU
You understand correctly. But you knew that, didn't you? ;-)
18 posted on 02/05/2003 9:06:18 AM PST by Badray
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To: berserker
There's no comparison here.

The "prefatory language" in the commerce clause explicitly states what the patent protection is intended to do, using the preposition "to", while the Second Amendment's "prefatory statement" begins with the indefinite article "a".
In the first case, the meaning of the sentence absolutely depends on the prefatory clause - without it, there'd be no sentence! - while in the case of the Second Amendment, the meaning is clear without reference to the prefatory clause at all.
19 posted on 02/05/2003 1:11:26 PM PST by Redbob (Tony Orlando was NEVER any good...)
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To: ZULU
Regulated back then meant operating smoothly or in the proper manner. Like a clock that runs on time is well regulated.
20 posted on 02/05/2003 7:55:28 PM PST by TheErnFormerlyKnownAsBig
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To: Nephi
I, too, have always interpreted the wording in that same context.

The right of the people to keep and bear arms shall not be infringed.

Why not infringe on the people's right to keep and bear arms? Because a "well regulated" militia is necessary to ensure the security of the free state.

The free state must have a militia to defend itself but, at the same time, the people must be able to regulate the power of the militia.

Checks and balances here, checks and balances there, checks and balances everywhere...

21 posted on 02/06/2003 11:23:36 PM PST by InfraRed
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To: InfraRed
Checks and balances apply ONLY to government.
Not to indeviduals.

The phrase "The people" refer to indevidual citizens NOT the Government. The government is a seperate entity

"Well Regulated" back then meant "Well trained".

For a better understanding of the founding fathers meaning substitute the word "trained" instead of regulated and you will understand
22 posted on 02/08/2003 1:01:16 PM PST by kennyboy509
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To: kennyboy509
Checks and balances apply ONLY to government. Not to indeviduals.

Re-read what I wrote. In no way did I insinuate that balance is needed to keep the people in check. The people (individuals) have a right to keep and bear arms, and this ensures the security of the free state because the government is not allowed a monopoly on arms. The balance keeps the government in check.

The phrase "The people" refer to indevidual citizens NOT the Government.

Agreed.

"Well Regulated" back then meant "Well trained".

If you say so. Perhaps you can cite a much older dictionary that I've not yet seen?

For a better understanding of the founding fathers meaning substitute the word "trained" instead of regulated and you will understand

Been there, done that, and I still don't see where your version of a civilian militia differs from mine. Unless, of course, you are trying to mandate that the people are trained per some defined standard -- for the purpose of obtaining certification, maybe? If so, you have a monumental task ahead to convince me that the authors had such a vision in mind while listing the Bill of Rights. Keep in mind that it is not called the Bill of Requirements.

23 posted on 02/08/2003 8:39:49 PM PST by InfraRed
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To: inquest
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss."

An excerpt from The Federalist No. 29
24 posted on 02/08/2003 8:54:39 PM PST by Roscoe
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To: Roscoe
Fascinating. Thank you.
25 posted on 02/08/2003 8:57:50 PM PST by inquest
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To: berserker
Supreme Court members bent on abolishing the RKBA will not be hampered by Eldred, logic, grammar, history, custom, legal reasoning, common sense, statistics nor the clear intent of the Founders.
26 posted on 02/08/2003 9:15:36 PM PST by Plutarch
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