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The Effect of Eldred on Gun Rights
Posted by Steven Wu on Wednesday, February 05 @ 02:08:58 EST Oddities
Over at Findlaw's Writ, Prof. Michael Dorf has a column up entitled, "Why A Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well."

Surprisingly, Dorf is referring to Eldred v. Ashcroft, a case that is no doubt familiar to our readers. Dorf points out that the Copyright Clause and the Second Amendment are unique in that they are the only two clauses in our Constitution with prefatory language: the Copyright Clause contains the prefatory clause, "To promote the Progress of Science and useful arts," and the Second Amendment includes the prefatory clause, "A well regulated Militia, being necessary to the security of a free State."

The Second Amendment's prefatory language has generally been interpreted as conferring a collective rather than an individual right to bear arms, thus preserving Congressional power to regulate arms. However, because the Supreme Court in Eldred essentially ignored the prefatory language in the Copyright Clause, Dorf openly wonders whether this precedent might lead the Court to similarly ignore the prefatory language of the Second Amendment, which would lead to an individual-rights interpretation of the Second Amendment.

Near the end of the column, Dorf admits that he may be stretching things a bit. But it's an interesting parallel that he discusses, and well worth the read.

 
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Related Links
· Findlaw's Writ
· "Why A Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well."
· Eldred v. Ashcroft
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Re: The Effect of Eldred on Gun Rights (Score: 0)
by Anonymous on Wednesday, February 05 @ 10:25:23 EST
The statement that "the Supreme Court in Eldred essentially ignored the prefatory language in the Copyright Clause" is more than "stretching things a bit."

Prof. Dorf had better go back an read the majority opinion again. The preferatory language is directly adressed at length in the majority opinion.


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