2nd Am and preambles

[Eugene Volokh]

        Ward correctly reminds me that we've been over much of this territory
before, so let me try to keep it brief:  I agree that I am criticizing not
just one but two ways of using the preamble "A being necessary to secure B,
C shall be maintained."

        1)  One argument that I'm criticizing is the "expiration" argument --
"Because we judges now conclude that A is no longer necessary to secure B,
the right has expired."

        2)  Another that I'm criticizing is the "condition" argument -- "Because we
judges now conclude that C no longer helps A or B, the right has expired."
(Recall that Ward's points related to the right being rendered "without much
force today," hence my reference to "expired.")

        3)  I do not oppose, at least in general, a third argument -- "We accept,
whether we agree with it or not, that A is necessary to secure B, and that C
in general serves A or B; but we will interpret C as covering only those
items that, under these assumptions, would indeed serve A or B."

        Thus, say a court is interpreting "In criminal prosecutions, the trial of
facts in the vicinity where they happen [A], is so essential to the security
of the life, liberty and estate of the citizen [B], that no crime or offence
ought to be tried in any other county than that in which it is committed
[C]."  I think judges must assume that A indeed is necessary to B, and that
C generally helps both -- but in deciding whether C covers preliminary
hearings that involve no factual issues (or even more generally no jury
issues), the judges might consider whether that particular matter implicates
A (is this a trial of facts?) or B (does this materially affect the security
of a citizen's life, liberty, or estate?) enough to fall within the
prohibition.  But I don't think that courts should be able to say that
"Because we no longer think that A is essential to B, we now conclude that
crimes may be tried in a different county than that in which they are
committed," or "Because we no longer think that C really helps A or B, we
now conclude that crimes may be tried in a different county than that in
which they are committed."

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Ward Farnsworth
> Sent: Monday, October 08, 2001 8:38 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: 2nd Am and preambles
>
>
> 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
>