The ?collective rights? interpretations of the Second Amendment depend entirely upon reading its explanatory preamble as a limit on the substantive right preserved in the amendment?s operative clause. Apart from the contrary history discussed above, the argument fails as a matter of grammar, statutory construction, and precedent.
As a simple matter of English grammar, the Second Amendment?s first clause is prefatory and explanatory; it does not modify the subject ?right of the people.? The ordinary grammatical rule is consistent with ?longstanding and generally accepted principles of statutory construction, that, at least where the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning.? Emerson, 270 F.3d at 233 n.32 (citations omitted).
Aside from the analysis in Emerson, there are many cases where people have independently asked experts on the English language this exact question. I'm not aware of any such query that suggested the preamble was a firm limitation. One of the earliest attempts to perform this analysis was an article by J Neil Schulman entitled The Unabridged Second Amendment.
That the Second Amendment?s preamble cannot be read to eviscerate the substantive rights clause is also clear upon examining the manner in which the Supreme Court has interpreted the other two constitutional preambles. With respect to the opening preamble, the Supreme Court has long held that ?[a]lthough that 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 conferred on the Government of the United States or on any of its Departments.? Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). Plaintiffs are unaware of any case in which a court has interpreted the preamble as a limitation, enjoining governmental action as inconsistent with ?establish[ing] justice,? ?insur[ing] domestic tranquility,? ?promot[ing] the general welfare,? or ?secur[ing] the Blessings of Liberty.? U.S. Cost. pmbl.
One flaw in this argument is that the preamble to the Constitution itself is explicitly set apart from the rest of the document, while the 2nd Amendment's preamble is within the same sentence. Yet, given that the 2nd Amendment consists of only a single sentence, that's not necessarily a strong argument. The legal interpertations of preambles in general are useful, however.
The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with ?To,? the infinitive that introduces most powers of Congress. If Congress has the powers ?To lay taxes,? U.S. Const. art. I, sec. 8, cl. 1, ?To borrow Money,? U.S. Const. art. I, sec. 8, cl. 2, and so on, then the power beginning, ?To promote the Progress of Science and the useful Arts,? U.S. Const. art. I, sec. 8, cl. 8, could stand alone absent the remainder of the Copyright and Patent Clause. In contrast, the Second Amendment?s preamble would in isolation do no more than declare an ideal.
This is a better analogy for our point, since this preamble is also contained within the same sentence, and there are precedents relating to its interpertation and lack of limitation. Some of those precedents have unamusing consequences; for example, one major problem with software patents is that they do not "promote the progress of Science and the useful Arts," but instead impede that progress. The patent office is unable or unwilling to properly filter out unoriginal patents, and lawsuits have been filed challenging the continuing expansion of copyright terms designed to keep Mickey Mouse in Disney's pocket.
There are some more details on those cases below, and they constitute useful Supreme Court precedent on interpertation.
Still, courts have not barred Congress from issuing copyrights and patents that do not ?promote the Progress of Science and Useful Arts.? See, e.g. Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (?Congress need not ?require that each copyrighted work be shown to promote the useful arts? . . .?) (citation omitted).
In Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), aff?d sub nom Eldred v. Ashcroft, 537 U.S. 186 (2003), plaintiffs asserted that Congress did not ?Promote the Progress of Science and useful Arts? in lengthening the terms of pre-existing copyrights, because doing so provided no incentive to create new works. The plaintiffs argued that the phrase ?limited Times, ? U.S. Const. art. I, sec. 8, cl. 8, should be interpreted to reach ?only as far as is justified by the preambular statement of purpose: If 50 years are enough to ?promote . . . Progress,? then a grant of 70 years is unconstitutional.? Eldred, 239 F.3d 372, 377-78 (D.C. Cir. 2001).
This Court rejected that argument. The Supreme Court precedent marshaled in support of Eldred?s argument ?never suggests that the preamble informs its interpretation of the substantive grant of power to the Congress.? Eldred, 239 F.3d at 378 (citation omitted).
The Supreme Court was only slightly more generous:
[W]e have described the Copyright Clause as ?both a grant of power and a limitation,? and have said that ?the primary objective of copyright? is ?to promote the Progress of Science.? The ?constitutional command,? . . . is that Congress, to the extent it enacts copyright laws at all, create a ?system? that ?promotes the Progress of Science.?
Eldred, 537 U.S. at 212 (citations and footnote omitted) (emphasis added). Acknowledging that the Clause as a whole may act as a limitation, the Supreme Court gutted the effect of the preamble by confirming that promotion of the Progress of Science and useful Arts is not the power?s sole objective. Moreover, ?it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.? Id., (citations omitted). Congress had a rational basis for determining that the extension of existing copyright terms ?promoted the Progress of Science.? Ibid.
It should be noted here that Eldred [PDF] is a case from 2003. Although we have replaced 2 justices since then, we can have a pretty good idea what the court thinks about preambles from this case, and the fact that the precedent is recent will make it hard to dismiss or counter with opposing or narrowing precedents.
Eldred?s lesson for the Second Amendment is clear. If the ?Progress? limitation in the Copyright and Patent preamble cannot restrain Congress from creating a system that retroactively benefits existing copyrights, neither may a conceptualized ideal of a ?well-regulated militia? restrain ?the people? from exercising their ?right to keep and bear arms,? which ?shall not be infringed.? This is especially so considering the accepted principle that the powers of Congress ?are few and defined,? Lopez v. United States, 514 U.S. 549, 552 (1995) (quoting The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961)), while rights of the people include even those not enumerated in the founding document. U.S. Const. amend. IX. At most, the preambular language of the Copyright and Patent Clause establishes a highly-deferential test that all but the most unjustifiable patent and copyright laws would pass. The fundamental rights secured by the Second Amendment are entitled to no less protection than Congress?s copyright and patent powers.
No less, but perhaps more, since there is a certain amount of tension between the 1st Amendment and the copyright clause.