2nd Am and preambles

[Eugene Volokh]

        Ward's point is an interesting one, but it seems to me that it doesn't just
turn on some qualifying adjectives in the preamble (such as "political" or
perhaps even "well-regulated," which might be seen as suggesting that some
regulations -- though not outright prohibition -- are permitted).

        Rather, it's that judges can say that "the preamble leaves the Amendment
without much force today" because they no longer agree with the factual
validity of the preamble, or with the connection between the preamble and
the text.  An analogy might be to the original Rhode Island Free Press
Clause (1842), which reads "The liberty of the press being essential to the
security of freedom in a state, any person may publish his sentiments on any
subject, being responsible for the abuse of that liberty."  Should judges
interpret this provision as if the preamble is accurate?  Or should they
decide for themselves whether the liberty of the press continues to be
essential to the security of freedom in a state, and whether the right to
publish on any subject continues to further this goal -- and be willing to
read the provision as "without much force today" if they conclude that times
have changed?

        This might seem like an odd hypothetical, because most judges today *do*
accept that the liberty of the press is essential to the security of freedom
in a state -- but this is hardly a universally embraced view, and was even
less embraced a few decades ago (and might again be less embraced a few
decades from now).  But if you prefer, let's consider another example, the
New Hampshire Jury of the Vicinity Clause (1784):  "In criminal
prosecutions, the trial of facts in the vicinity where they happen, is so
essential to the security of the life,
liberty and estate of the citizen, that no crime or offence ought to be
tried in any other county than that in which it is committed . . . ."
Today, I suspect that many judges think that "the trial of facts in the
vicinity where they happen" is not terribly "essential to the security of
the life, liberty, and estate of the citizen" -- and certainly they would
often see cases in which (especially given the greater ease of
transportation) trying the case in the "county . . . in which it is
committed" is hardly "essential" either to maintaining the proper "vicinity"
or to protecting "security of the life, liberty and estate of the citizen."
Does it follow that judges may properly interpret "the preamble [as]
leav[ing] the [Clause] without much force today"?

        Isn't part of the point of Bill of Rights provisions that government
actors -- including judges -- should be bound by them even if they don't
agree with the rationales that are given from them?  This doesn't mean that
the preambles are irrelevant to construing contested cases; for instance,
even accepting the preamble's assertions as valid, one might interpret it as
"conditioning [the] scope" of the term arms to those arms helpful to a
citizen-militiaman (which is in fact what U.S. v. Miller held).  But it does
suggest that the preamble cannot be used to conclude that it "leaves the
Amendment without much force today" simply because judges no longer agree
with its empirical validity.

        Eugene

Ward Farnsworth writes:

> > At 05:21 PM 10/8/2001 -0400, Randy Barnett wrote:
> >
> > >(1) The Second is far more like the First for the textual
> > reasons Mark noted
> > >as well as because it is so closely linked to the natural right
> > of (personal
> > >and collective) self-defense.  There also exists a comparable or even
> > >greater danger of pretextual regulations with the Second as
> compared with
> > >the First.
> >
> > But the Second is perhaps more like the Fourth -- or, really,
> > unlike either
> > the First or Fourth -- in that it has a preamble that might be read as
> > conditioning its scope.  If the First Amendment contained a preamble
> > talking about the importance of political speech in a
> democracy, the free
> > speech clause likely would have been read a lot more modestly,
> and indeed
> > would likely be thought to have no application at all to many types of
> > speech it now is thought to cover.  I do not mean to reignite a
> discussion
> > of whether the preamble to the Second Amendment, or preambles
> in general,
> > should in fact be understood to have such consequences; we have gone
> > through it at some length before.  But as I understand the
> > structure of the
> > debate over the Second Amendment, the argument that the preamble
> > leaves the
> > Amendment without much force today is (or anyway can be) a
> separate point
> > from the question of whether the Amendment protects an "individual" or
> > "collective" right; so depending on one's reading of it, the
> > preamble might
> > be capable of serving the moderating textual function that Mark
> > asked about
> > regardless of the position one takes on the
> individual/collective issue.