The Preamble does not limit the Right

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).

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.

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.

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.

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.