Legal Commentary

It's always a pleasure to do a guest stint at Prawfs. Thanks to Dan et al. for inviting me back. I thought I'd kick things off by adding yet another post to the deluge of Heller-related thoughts in the interest of making sure that absolutely everything possible has been said about the case. So, question: does the Supreme Court?s interpretation of the Second Amendment in Heller have any implications for intellectual property law? At first blush, the answer would appear to be no. But on closer examination there actually is an interesting connection. The Constitution?s Intellectual Property Clause, like its Second Amendment, begins with what has often been called preambular, or prefatory, language. In the case of the Second Amendment, the power to keep and bear arms ?because a well-regulated Militia is necessary to the security of a free state?, and in the case of the IP Clause, Congress?s power to confer limited monopolies on patent and copyright holders is given ?to Promote the Progress of Science and the Useful Arts?. Writers in the blogosphere have expressedconcernthat the Court?s dismissal of the relevance of preambular language in Heller portends poorly for any future attempts for the Court to take seriously the preambular language in the IP Clause. But for a couple of reasons explained below the fold, I think this concern is unfounded.

First, equating the introductory clauses of the Second Amendment and the IP Clause as ?preambles? misses crucial differences in the operative significance of each clause. Imagine three kinds of constitutional language: grants, limitations, and explanations. Grants and limitations give and take away power; explanations provide context for why the powers are given or taken away. The Second Amendment?s militia language might plausibly be described as a preamble because it represents merely an explanation of the reason that the framers chose to limit congressional power. The Second Amendment consists of an explanation + limitation, or to crudely paraphrase, ?because militias are important [explanation], Congress may not infringe the right to keep and bear arms [limitation].? Viewed in this light, the first phrase of the IP Clause looks very different. In fact, despite its being described as a preamble by the D.C. Circuit and Supreme Court alike, the ?promote the progress? language does not appear to be a preamble at all, but rather the very power conferred on Congress by the Constitution. So rather than being an explanation + limitation, the IP Clause can be paraphrased as a grant + limitation (as the Court described it in John Deere): ?Congress can promote the progress of science and art [grant], but only by means of limited-time exclusive rights [limitation].? Bill Patry does a great job of elaborating this argument in more detail. The implication of the distinction is that Heller does not spell doom for future interpretations of the IP Clause. Even if the case suggests that the Court tends to dismiss preambular language lightly, this should not mean the Court will take the "Progress" element of the IP Clause lightly, because that language is not merely preambular, but operative.

Second, while the Court?s description of the militia language in the Second Amendment appears dismissive, this masks the extent to which the Court actually took that language quite seriously in deciding Heller. In his majority opinion, Justice Scalia wrote that ?a prefatory clause does not limit or expand the scope of the operative clause?. In isolation, this seems to divest prefatory language of any interpretive significance. But despite this apparent dismissal, the Court went on to consider the meaning of the militia language in some detail?a strange move if one thinks that prefatory language is relevant only insofar as it can resolve ambiguities in related operative clauses. Justice Scalia?s explanation for considering the preambular clause after the operative clause also seems to invest the former with more significance than his earlier dismissal let on: ?while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the expressed purpose?. This is a much broader notion of the significance of prefatory language than merely a tiebreaker in the case of ambiguity. It (along with the Court?s detailed analysis of the militia language and its later explanation that the prefatory and operative language ?fit[] perfectly? together) suggests that prefatory language does in fact serve as a limit on operative language, if only insofar as it means that operative language may not be interpreted in a manner radically inconsistent with prefatory language. The implication is that even if courts continue to (wrongly) regard the ?Progress? language in the IP Clause as a mere preamble, a close reading of Heller doesn?t necessarily yield the conclusion that preambular language is devoid of interpretive significance.