Why A Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well

By MICHAEL C. DORF
Wednesday, Feb. 05, 2003

Recently, in Eldred v. Ashcroft, the Supreme Court declined to strike down the 1998 Sonny Bono Copyright Term Extension Act. The Act had extended all current and future copyright terms by twenty years. (Previously, copyright protection had generally lasted for the lifetime of the author plus fifty years; now it lasts for the lifetime of the author plus seventy years.)

The decision is important in its own right. Yet it may ultimately hold even greater significance if its logic is applied in what may seem a completely different context: gun control and the Second Amendment.

Does Eldred Mean Prefatory Language Will Generally Be Ignored?

The Constitution's Copyright & Patent Clause grants Congress the power "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."

In Eldred, the plaintiffs placed heavy reliance on the prefatory clause declaring the purpose of the copyright grant: "To promote the Progress of Science and useful arts." They argued that extending existing copyrights did not serve this purpose. Extending future copyrights might "promote ... progress" by giving authors financial incentives to create more, and better, works. But for works that have already been created, no further incentives are needed.

A 7-2 majority of the Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, rejected this argument. It pointed out that prior statutory extensions of copyrights--in 1831, 1909, and 1976--had applied to existing, as well as future, works. And it found that Congress could have rationally believed that it was only fair to give the same protection to holders of existing and future copyrights.

Putting aside the merits of the Eldred ruling (which were discussed on this site in a recent column by Chris Sprigman), now that it is law, what will its impact be? Does it mean that constitutional prefatory language can effectively be ignored by the Court? If so, that may have a profound effect on interpretation of the Second Amendment.

The Significance of the Second Amendment's Prefatory Language

The Second Amendment, like the Copyright & Patent Clause, contains prefatory language that declares its purpose, and can be read to limit its scope. Strikingly, it is the only other constitutional provision that does so. (Of course, the Preamble that precedes the entire Constitution could be argued to have a similar function, but if so it applies to every constitutional provision, not to any particular clause.)

Specifically, the Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." What is the significance of the prefatory language "A well regulated Militia, being necessary to the security of a free state"? Does it simply declare the Amendment's purpose, but lack any independent force of law? Or does it serve to limit the Amendment's scope?

Put another way, does the right declared by the Amendment belong only to the "militia" (or the People as a whole), as the prefatory language suggests? Or does it belong to individuals, as the rest of the Amendment, standing alone, could be read to imply?

That issue matters a great deal. It has already divided federal appeals courts, and will likely soon be considered by the Supreme Court.

Indeed, in a separate concurrence in the 1997 case of Printz v. United States, Justice Thomas indicated that the issue was ripe for consideration. The last time the Court addressed the issue was in 1939, in United States v. Miller, and courts and commentators alike have found that decision somewhat opaque.

To be sure, the Court can avoid the issue for now, for the appeals court decisions rendered so far do not present a perfect conflict. (One involved a federal statute; one concerned a California law; and neither struck the relevant statute down). But eventually, the high court will have to confront the question.

In an earlier column, I discussed the Second Amendment issue as it stood before Eldred. Now, however, Eldred may have changed the contours of the legal terrain in a way that matters a great deal.

How Eldred Affects Individualist and Collectivist Second Amendment Views

If the prefatory language indeed limits the Second Amendment right to bear arms, then Congress and the states likely retain the power to broadly regulate gun possession. On this reading, the right is one of the People collectively (and state militias), not of individuals.

There is some historical evidence for this understanding, commonly called the "collective right" view: The Second Amendment was inspired by fears among Anti-Federalists and others that a too-powerful federal government would use a standing army to dominate the states. Perhaps the best evidence for the collective right view is the Amendment's own preface. Accordingly, in adopting the collectivist understanding, the U.S. Court of Appeals for the Ninth Circuit, in its 2002 ruling in Silveira v. Lockyer, substantially relied on the Amendment's prefatory language.

On the other hand, if the prefatory language can basically be ignored, the right would seem to be an individual one. Imagine that the Second Amendment simply read: "The right of the people to keep and bear Arms, shall not be infringed." A natural reading of the language might then suggest that the right was an individual right--like many others in the Bill of Rights, which similarly lack prefaces declaring their purposes. (No doubt that is why the NRA website includes the truncated version of the Second Amendment as its motto.)

Again, there is separate evidence for what is sometimes called the "individualist" view. Those who support it say it is individuals who have the right to "keep" arms so they can "bear" them when called up for service in a state militia, but may otherwise use those arms however they see fit. And prior to Eldred, in United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit took this view. But ignoring the preface, as Eldred suggests is a legitimate interpretive move, would strongly favor the individualist view of the Second Amendment.

Before Eldred, individualists and collectivists alike had assumed that any satisfying account of the Second Amendment must explain the relation between the preface and the remainder of the Amendment. After Eldred, however, it is possible that this is no longer true. If so, the individualists may well prevail.

How Far Does Eldred's Logic Go?

Eldred's ruling, however, may not be applicable in the Second Amendment context. After all, despite the parallels, the Copyright and Patent Clause is worded differently, and has a different history from, the Second Amendment. For example, in Eldred, Justice Ginsburg noted that Congressional practice consistently permitted retroactive extension of copyrights. But in contrast, early American practice permitted extensive regulation of gun ownership.

Moreover, Eldred involved a constitutional provision conferring power on Congress--not one that, like the Second Amendment, describes a right of the People, or of individuals (depending on one's view). The difference is significant because the effect of Eldred was to leave the underlying issue to the democratic process via Congress. The decision was expressly justified as an instance of judicial restraint.

In contrast, a decision to follow Eldred in the Second Amendment context, and ignore the Amendment's preface, would have the effect of limiting what Congress--and the democratic process--could do. Thus, it would constitute an instance of judicial activism, not judicial restraint. Or, to put the contrast more simply, Eldred gave Congress a free hand in the copyright context; a similar holding would tie the hands of Congress and the states in the gun control context.

In sum, the Eldred Court's treatment of the Copyright and Patent Clause's preface suggests an interesting line of argument about the Second Amendment, and its preface. In the end, however, that argument will have to stand or fall on its own merits, due to the contrasts between the two constitutional provisions.

Ultimately, then, Eldred really is a case about Mickey Mouse, not Yosemite Sam or other (real-life) gunslingers.


Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University School of Law.

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