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the copyright clause and the Second Amendment

Discussion in 'Legal' started by Ieyasu, Sep 26, 2004.

  1. Ieyasu

    Ieyasu Well-Known Member

    The copyright clause in Art. I as others have observed is similar in structure to the Second Amendment. Both have a justification clause.

    The copyright clause:
    "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"

    The Supreme Court has held that only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts." (http://caselaw.lp.findlaw.com/data/...ticle01/39.html)

    Thus, the Court appears to have used a justification clause to limit the scope of who may be granted a copyright.

    Obviously, the Court could interpret the 2A the same way.

    I would like to hear comments from attorneys regarding this.

    Folks, please spare me the references to U.S. v. Verdugo-Urquidez (1990) and of course Miller. Also, please spare me the quotes from the Founders etc. Yes, I do believe it was the original intent of the Founders to preserve an indvidual right, so there's no need to discuss that. I'm interested in the reconciliation between the copyright caselaw and 2nd Amendment legal interpretation.
  2. M1911Owner

    M1911Owner Well-Known Member

    I guess I'm a little slow. I'm just not seeing the parallel you're talking about.
  3. HankTN

    HankTN Member


    I do not specialize in intellectual property law. The opinion given is a gross generalization and oversimplification of a complex subject. This is also not advice given with regard to any specific case of factual scenario. Rely upon it at your own risk.


    There are two distinctions between Art. I Sec. 8, Para. 8 and the second amendment. First, Art. I Sec. 8, Par. 8 grants a specific power to congress, while the second amendment removes it from consideration. Second, Art. I Sec. 8, Par. 8 is in derogation of the common law, while the second amendment is a recognition of the common law.

    Under our Constitution, the federal government is one of specific, limited powers. While this has been expanded upon, all such expansion must have some justification under the Constitution, such as the commerce clause or the taxing powers. For the copyright laws, this is Art. I Sec. 8, Par. 8. I suppose that congress could create such a power under the commerce clause without this justification, but they do not have to.

    This brings us to the second reason: the common law, as it existed at the time of the Constitution. Most of us will agree that the "right to keep and bear arms" was recognized as a common law right at the time of the Constitution. This was one of Madison's arguments against its inclusion in the Bill of Rights, as it was unnecessary to guarantee that which was already guaranteed. At common law, however, there is no right to control the distribution of a scientific or artistic work. The common law copyright is only the right to determine whether you will or will not publish. Once published, the work enters the public domain. The only protection an author has is the statutory protection enacted under the authority of Art. I Sec. 8, Par. 8.

    Hope this helps.
  4. AZRickD

    AZRickD Well-Known Member

    False arguments feared by the Framers

    Further, the Federalists, including, but not limited to, Madison and Hamilton, thought that it was dangerous to list Rights because of they predicted very arguments related by Ieyasu.

  5. Hawkmoon

    Hawkmoon Well-Known Member

    You may see a parallel between this and the 2nd Amendment, but as a professional writer and author I have to say that I do not.

    The "copyright clause" specifically states that it's purpose is "To promote the Progress ... by securing for ..."

    The introductory clause to the 2nd Amendment doesn't say anything about a specific purpose. It states that a well-regulated militia is essential to freedom, then goes on to say in a main clause which is in NO WAY limited by the introductory clause, that the right of the People to keep and bear arms shall not be infringed. It does not say "To promote the formation of a well-regulated militia, ..." It does not say "To promote freedom through the maintenance of a well-regulated militia, ..."

    I don't see any parallel at all.
  6. Ieyasu

    Ieyasu Well-Known Member

    Interesting comments guys, thanks.

    M1991Owner, as a result of the other poster's comments, do you see what we're talking about now?

    HankTN, thanks for your thoughts. Before I comment, one part I didn't understand was, "Second, Art. I Sec. 8, Par. 8 is in derogation of the common law." Isn't derogation a partial repeal or abolition of a law?

    AZRickD, I know, I know. But as you know the feds have found a way to apply interstate commerce to anything they want to regulate (like putting catchup on everything one eats, as a columnist once wrote).

    Hawkmoon, so would you disagree that it's like having a "because" in front of the militia clause?
  7. Telperion

    Telperion Well-Known Member

  8. M1911Owner

    M1911Owner Well-Known Member

    No, I don't. My point was essentially what Hawkmoon more verbosely (and less cryptically) expressed--the two structures are not parallel. The Second Amendment consists of an introductory clause and a stand-alone main clause. The Copyright Clause is a single thought that would be rendered with modern punctuation as, "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."
    Last edited: Sep 28, 2004
  9. Hawkmoon

    Hawkmoon Well-Known Member

    You MIGHT choose to read the introductory clause of the 2nd Amendment as if it had a "Because" at the start, but even if you chose to do so, "Because" is not the same as "In order to."

    "Because" implies a prior act or fact. "In order to" implies a current or future act intended to produce a desired result, rather than an an acknowledgement of a pre-existing truth.
  10. HankTN

    HankTN Member


    See previous disclaimer.

    "Derogation" does mean a "partial repeal." In this sense, congress was given the specific authority to pass laws that would conflict with the common law. This stems from an understanding of the federal government being one of limited and specific powers. The "preamble" you point to might be construed as a mandate to do just that.

    If I were to draw a parallel between the two sections, I would only state that both sections give a reason for their enactment. In the case of Art. I Sec. 8, Par. 8, congress is allowed to pass laws contrary to the common law becasue such laws " promote the Progress of Science and useful Arts." If a law does not advance this purpose, then the contention would be that it would exceed congressional authority. However, just as with the commerce clause, congressional authority seems to be expanding, not contracting.

    In the case of the second amendment, congress is forbidden to pass laws contrary to the common law, even if they would otherwise have the authority under an enumerated power, because a "well regulated militia" is "necessary to the security of a free State." At that time, we get into the entire debate on what "well regulated" means (i.e. under a central command, or well trained).

    Again, hope this helps.
  11. Kamicosmos

    Kamicosmos Well-Known Member

    *rumages around looking for that picture of the Bunny with a Pancake on it's head*

    What are we discussing here? Trying to say that the copywrite on the Constituition expired, and therefore the document is null and void or something?

  12. Hawkmoon

    Hawkmoon Well-Known Member

    It appeared to me that the original post was implying that those who take the position that the 2nd Amendment only applies to the militia (i.e. the National Guard) are correct.

    I don't accept that, and the argument that the copyright law is in any way parallel in construction and therefore somehow "proves" this view is specious logic ... at best.
  13. Ieyasu

    Ieyasu Well-Known Member

    Thanks for your comments guys. I have some follow-up comments/questions, but unfortunately it got late tonight, I should be back tomorrow night.
  14. Geech

    Geech Well-Known Member

    I think this is all academic, anyway. Even if we accept the argument that "shall not be infringed" includes an implied "except for the above," the ninth amendment would still acknowledge the right to keep and bear firearms outside the context of a militia.

  15. Ieyasu

    Ieyasu Well-Known Member

    Hawkmoon, I agree with everything you wrote. (Except I believe they are parallel in a grammatical context. Both have a justification clause and an independent clause.) But your posts didn't explain why the copyright clause is treated narrowly and the 2nd isn't (or shouldn't be).

    For example, even if the 2A were written as "To ensure the continuance of a well-regulated militia..." I believe the right to keep arms would still be protected outside of active militia duty, for either of two reasons, the people's right to keep arms fulfills the justification clause, or the right itself is broader than the justification clause.

    Initially when I read the copyright clause, I thought the independent clause was being narrowed by the justification clause, but as HankTN said, there was no common law expectation/right protecting the works of all authors and inventors... so actually, the justification clause isn't narrowing a broader power (or right to the authors and inventors) (thanks HankTN, did I get that right?).
  16. Ieyasu

    Ieyasu Well-Known Member


    In theory, yes, but in the real world, as you probably know, the Ninth hasn't fared very well in the Courts. (Sadly, the same can be said for the 2nd :mad: )
  17. Ieyasu

    Ieyasu Well-Known Member

    Thanks for the thread-link pipsqueak. Although I liked this one better. ;) I remember that article by Dorf. Reading his stuff is quite irritating.

    (Let me guess, with a moniker like pipsqueak, you're 6' 4" ;) )
  18. M1911Owner

    M1911Owner Well-Known Member

    It occurs to me that the "modern-day punctuation" quotation I made, above, was incomplete. A more complete rendition is:

    Does this help to show how the Copyright Clause is totally different in structure from the Second Amendment? It is simply a single statement of a power that is delegated to the Congress, and exactly how it is permitted to exercise that power.
  19. Ieyasu

    Ieyasu Well-Known Member

    Punctuation is usually irrelevant. A single sentence without punctuation can still have two clauses. See footnote 8 from this page where Volokh refers to the first part of the copyright clause as an introductory clause acting as a purpose provision: http://www1.law.ucla.edu/~volokh/common.htm#8
  20. M1911Owner

    M1911Owner Well-Known Member

    OK, let me rephrase this then.

    What I was trying to demonstrate by removing the comma is that the Copyright Clause is a single clause. The part that is set off by a comma is not a separate clause, but is only a prepositional phrase. Mr. Morris put in a comma to set off that phrase; in modern English, we don't normally set of prepositional phrases with commas. That phrase is part of the whole clause, and limits it.

    In my second post I was pointing out that all of us prior to that point in the thread had been quoting the Copyright Clause incompletely. It's part of one really, really long sentence that comprises the entirely of Article I, Section 8. To excerpt the full meaning of the clause, you need the first part of the sentence that forms the beginning of the parallel construction of all the clauses in that section. Specifically, "The Congress shall have Power...". When that is included in a quote, the function of the prepositional phrase becomes more obvious.

    I disagree with Volokh's footnote that characterizes the Copyright Clause as consisting of two clauses. A prepositional phrase is not a clause, no matter how long and complicated it may be.

    The Second Amendment, on the other hand, consists of two complete clauses, a dependent clause, and an independent clause. The independent clause states that "the right of the people to keep and bear Arms shall not be infringed." The dependent clause, as Volokh states, is merely a justification for the independent clause, and in no way modifies it. (And even it if did, it still comes back to meaning of "militia" being the armed population, so it doesn't change anything anyway.)

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