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Guns and Copyright

By Senior Copyright Counsel, Google Inc.

Within the 157 pages of opinions in yesterday?s Supreme Court District of Columbia v. Heller opinion, upholding, as expected Judge Silberman?s opinion for the DC Circuit invalidating the DC total ban in handguns, is the issue of how we interpret constitutional clauses. Because I regard the majority opinion as 64 pages of after-the-fact rationalizing by judicial activists bent on overturning as many precedents as possible, the short answer is we should simply ignore the Court?s opinions as guides to the future, since they are all ad hoc; good, like Bush v. Gore, only for that case. But for those who disagree with this, there is exegesis that parses the Second Amendment into what is called a prefactory clause and an operative clause. The prefatory clause is merely pretty words, ?Because a well regulated Militia is necessary to the security of a free State.? The real language is ?the right of the people to keep and bear Arms shall not be infringed.?

Heller is of a piece with Eldred v. Ashcroft, where the Constitutional clause in Article I, section 8, clause 8 was also dissed, in that case by Justice Ginsburg?s majority opinion. The Court?s cavalier treatment of the Constitutional language as so much flotsam and jetsam transcends the Justice?s sharp political persusasions.

The Second Amendment is written quite differently than Article I, section, clause 8, because the latter actually begins with grant of the power, the power ?to promote the progress of science.? No matter, though, whatever result the Court wants to reach, the troubling language will be regard as a preface or preamble, even to itself.

Article I, Section 8 is a list of 18 clauses containing enumerated powers. Each of the clauses has the same grammatical structure, in which the infinitive ?to? prefaces the power granted: for example, the power to lay and collect taxes; to borrow money; to promote the progress of Science, to declare war. Most of these grants are unlimited, for example, ?to establish post offices and post roads,? ?to constitute tribunals inferior to the Supreme Court.? Only two clauses contain both a grant of power and a limitation thereon, clauses 8 and 15. Clause 8 is the copyright and patent provision. Clause 15 gives power to Congress ?to provide for calling forth the Militia, to execute the laws of the Union, suppress insurrections and repel invasions.? The power is to call forth the militia. The limitation on that power is that the militia may be called forth only to execute the laws of the union, suppress insurrections, and repel invasions. If Congress enacted legislation authorizing the militia to be called for other reasons, like to provide members of the President's cabinet with personal bodyguards, that legislation would be an unconstitutional exercise of power under clause 15. Clause 8 works the same way: The power granted Congress is to pass legislation to promote the progress of Science. The limitation on that power is that the legislation may be for limited times, for authors, and only in writings.

The structure of Article I, Section 8 is thus clear, as is that of clause 8: a grant of power (to promote the progress of science) followed by limitations on that power (limited times, authors, writings). No one doubts that the words following ?to promote the progress of science? are words of limitation. For example, the Supreme Court held in no uncertain terms in Feist that ?author? and ?writings? require the presence of originality as a constitutional requirement (limitation). And while there is a vigorous debate about when a term of protection is so long as to be deemed ?unlimited,? all agree Congress can only enact a term of protection for ?limited Times.? At least some words in clause 8, therefore, act as a substantive limitation on Congress's power. The question is whether ?to promote the progress of science? also performs a limiting function, and if so, what kind of limitation.

On what basis would the limited times and originality parts of the clause act as substantive limitations but the ?promoting the progress of science? not? One way is to characterize the ?promoting the progress of science? language as a ?preamble.? That approach absurdly separates one part of the clause from the rest: How can a single sentence of 27 words have, as a preamble to itself, its own first nine words? The purpose in calling the ?promote the progress of science? language a preamble is clear enough, though: to render it meaningless, the equivalent of mottos on license plates; that is contrary to the general theory of interpretation that insists on giving every word meaning.

For the structural and grammatical reasons detailed previously, far from being a preamble, ?to promote the progress science? is the grant of power itself, like clause 2, ?to borrow money on the credit of the United States.? If that clause instead read ?to borrow money on the credit of the United States to reduce the national debt,? it could not seriously be questioned that ?to borrow money on the credit of the United States? was still the preamble and that ?to reduce the national debt? was the limitation. Conversely, if clause 8 read simply ?to promote the progress of science,? it could not seriously be doubted that this was a grant of power. Status as a grant of power is not altered by a limitation, in our case ?by securing, for limited Times, to Authors the exclusive right to their Writings.? This final language confines Congress's power; it is not the grant of the power itself. The power is to ?promote the progress of Science.? Calling that language a preamble is to ignore the entire structure and grammar of Article I, Section 8.

A preamble would be something like ?whereas the promotion of the progress of science advances the general welfare, the Congress shall have power to secure to authors the exclusive right to their writings for limited times.? Note that the ?whereas? would be a factual conclusion only (the progress of science advances the general welfare) and that the actual power is directly joined to ?securing to authors? exclusive rights. Clause 8, however, actually reads very differently: The power is directly joined to ?promote progress of science? and there are no factual statements. No clause in Article I, Section 8 has a preamble. See Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 Idea 331, 334?337 (2004).

Full post as published by The Patry Copyright Blog on June 27, 2008 (boomark / email).