On Preambular Clauses

Whatever staffer over at The Brady Campaign who is responsible for their blog is going to have to be careful not to get carpel tunnel syndrome from blogging out so much crap as of late. Their latest steamer repeats the old tired explanation of why the Parker decision was wrong and out of touch with the purpose of the second amendment:

If the Second Amendment is read naturally, in the order it is written, then its militia purpose explains “the right of the people to keep and bear Arms,” not the other way around. A “well regulated Militia” is the Amendment’s aim, not merely some side benefit of arms owned for “private purposes.”

The Brady’s are arguing here that the introductory clause, where the founders explain a purpose of recognizing the people’s right to keep and bear arms, renders the operative clause, “the right of the people to keep and bear arms shall not be infringed” without meaning, since there’s no longer a “well-regulated militia”.

It’s not the first time an argument like this has been made before The Court. In the case of Eldred v. Ashcroft, which challenged the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, the attorneys representing Eldred tried to argue similarly the the copyright power, which is granted Congress in Article I Section 8:

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

Was limited only to those purposes which promoted the progress of science and the useful arts, and since the 1998 Copyright Act extended the copyright period well beyond death, it could not possibly be construed to do such a thing, since dead people seldom produce useful art. Here’s what The Court said about that argument:

The CTEA’s extension of existing copyrights categori-cally fails to “promote the Progress of Science,” petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created. As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist, 499 U. S., at 349. The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.” Graham, 383 U. S., at 6.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.

The Court in Eldred felt that the preambular clause in the copyright power served as no meaningful limit on that power.  If The Court is unwilling to find a preambular clause as being a limit on a power of Congress, what makes them so confident they would be willing to go so far as to believe a preambular clause would render part of the Bill of Rights completely meaningless?

5 thoughts on “On Preambular Clauses”

  1. i wonder what they would say if we started arguing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” only meant that Congress couldnt pass those laws, but any other government body or organizations could restrict all of the above?

  2. They probably are not, in all reality… In fact, I would almost wager money that they are confident the Court is going to rule against them and all of the other anti-rights organizations out there. But now they are doing what they have always been doing… waging a war of popular opinion. More often than not, they resort to pathetic emotional ploys, but imagine if they could get enough people convinced that the Second Amendment does not say what it does… and imagine the resulting hue and cry if the Court does rule that it is an individual right. In the end, this is only the slightest change of tactics for anti-rights organizations, but hopefully it will have as limited success as anything else they try.

  3. That’s what it’s beginning to sound like to me, too. They’re (implicitly) conceding that the SCOTUS is going to run (however narrowly) that a complete gun ban is an infringement; and are prepping the battlefield, as it were, for the next fight.

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