2nd Am and preambles

[Ward Farnsworth]

My attempt to avoid restarting a discussion of preambles having failed, let
me just offer a couple of comments on what Eugene says.  We might separate
two issues: first, the role of a preamble in conditioning what follows it;
second, the possibility of an expired preamble causing a right to be given
minimal force.  With respect to the first issue, regardless of whether a
judge agrees with the premise stated in a preamble, he might conclude that
the words which follow it should be read only so broadly as to advance it;
that was the point of the hypothetical preamble to the First Amendment
talking about political speech.  The issue is not whether the judge agrees
that political speech facilitates the operation of a democracy.  It's that
he might reasonably read a free speech guarantee that follows such a
preamble as being limited to political speech.  The same might be done with
the Second Amendment, though of course Eugene has made some arguments about
the dangers of this practice.  This is one respect in which the text of the
Second Amendment has the potential, at least, to support fairly stiff
categorical limitations on gun ownership, depending on how the preamble is
read -- a fair subject for debate on which I take no particular position here.

Second, there is the possibility that the premise has in some sense
expired; this is another way in which the text might support aggressive
restrictions.  Here is where Eugene makes his arguments:  judges should not
let their disagreement with the current force of an old rationale undercut
their enforcement of a right.  I think this is actually a quite difficult
question.  I once offered the following hypo to Eugene (I believe it was on
this list):  Suppose the Second Amendment said, "A well-regulated militia,
being necessary to the security of the state against the Indian tribes, the
right to keep and bear arms shall not be abridged."  Should not the
expiration of the premise have consequences for the strength of the right
today?  Eugene main reply then (as I recall -- sorry, Eugene, if I'm a
little off) was that this sort of reasoning leads to slippery slopes in
which old preambles are used as an excuse to take away rights too often.  I
wasn't as moved by that argument as Eugene was.  Again, there naturally are
additional arguments one could make, e.g., that the premise of the Second
Amendment has not, in fact, expired, and is indeed as robust in these
frightening times as it ever was.  I'm open to those arguments.  (I like
guns, and my interest in acquiring one has become decidedly greater in the
last month.)  But when the Second Amendment finally makes its modern
appearance in the Supreme Court, I think this is the point on which the
pro-Second-Amendment folks are most likely to (barely) lose.

But like I said before, we probably shouldn't start discussing this.  : )
_____________________________

Ward Farnsworth
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
Phone:  (617) 353 4008
Fax:  (617) 353 3077