Interesting post by Mike Masnick of Techdirt, Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution, where he worries that the reasoning in the Second Amendment case Heller--where the prefatory clause "A well regulated Militia, being necessary to the security of a free State" was not held to modify the operative clause, "the right of the people to keep and bear Arms, shall not be infringed"--on the grounds that with similar reasoning, the IP clause might be de-linked from its initial cause "To promote the Progress of Science and useful Arts..." I.e., if the first clause merely states the purpose of the power, but can be ignored, as in Heller, then Congress can still establish copyright and patent even if we can show that they do NOT promote the progress of science and the useful arts.

Well, as I wrote there, Masnick has a reasonable concern, but I think, ultimately, these clauses are different. As this post above notes, in the case of the Second Amendment, the prefatory clause does not limit the operative clause. The limit on federal power is in the operative clause.

In the case of the copyright clause, first, this is a grant of power, not a limit on power. Second, as the poster notes, the power is the power "to promote the progress of science and useful arts" by a certain means, that is, by copyright and patent grants. But the power is clearly linked to "promoting progress." So I think you could probably argue that if IP does not promote the state goals, it's ultra vires. However, I'm afraid the necessary and proper clause would be used to give the feds a lot of leeway.

Where on earth do you read it to say that it specifies the means of securing an author's or inventor's exclusive rights by the grant of copyright and patent?

Copyright at least secures an author's exclusive rights, but it also extends this by privileging the author with the suspension of everyone else's right to liberty, specifically the right to make copies of their own property. That suspension is not the protection of the author's exclusive right, but an unwarranted reward for the publication of their work.

An author has a natural, self-evident, exclusive right to their writings whilst they are exclusive to them. This right is all that needs to be secured. There is no constitutional sanction to further grant the author a reward for releasing their writings from their rightfully exclusive possession. Such reward should be obtained by the author in a free and fair market by offering their writings in exchange for whatever price the market will bear. It certainly shouldn't comprise the suspension of the public's liberty to share and build upon published works, nor should it be obtained through taxation.

The US Constitution only sanctions the securing of exclusive rights. It does not specify the means, nor does it suggest that by securing one right another may be compromised, especially as exclusive rights may easily be secured without compromising any other right. It certainly doesn't say "Oh, and if you can slip in any incentive for authors and inventors to publish their works, please do so by any means possible, even if under the guise of securing their exclusive rights".

I guess this plays right into copyblindness. As soon as one understands that the "relevant economic entity" is a copy and not the abstract concept ie every copy, intellectual property as it is currently implemented indeed looks atrocious.

Naturally, authors have the exclusive right to their writings or inventions. After selling a copy, however, you cannot reasonably expect to retain the exclusive right to the same copy that you just sold. This seems so incredibly obvious to me that I cannot possibly fathom how so many people could ever have been convinced otherwise.

The current issue of The Economist has an article on the decision, and says that the second amendment is unclear.

I emailed this letter to the editor:

There is no book owners' equivalent of the second amendment, but if there were, it would read: "A well educated citizenry, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed" ("The Supreme Court opens fire," June 28). What the sentence means might be unclear, but what is clear is that it does not give a writ to the State to ban or restrict the owning of books. Yet the history of books in America contains a long and dark chapter of just such restrictions, and to what end? Certainly not educating the citizenry.

The same point can be made about the second amendment. It might be unclear, but it does not warrant restrictions on gun ownership. Yet the history of guns in America is replete with bans and lesser infringements, and to what end? Certainly neither regulating the militia, nor improving the safety of the citizenry. ___ ___ ___

Unlike the second amendment, which appears in the Bill of Rights, the progress clause appears in article 1, section 8, which borders on being a blueprint for monopoly and government planning. I say borders on because it doesn't outlaw things such as private coinage and note issue, although these were later either outlawed or severely restricted by legislation, and the government eventually was given a monopoly of supplying notes and coins. (An essay Rothbard might have written: "The U.S. Constitution: Blueprint for Monopoly.")

The progress clause is part of an explicit to do list for the State, whereas the second amendment by itself doesn't give the government the power to do anything, such as ban or restrict the ownership and use of guns. Yet there are numerous restrictions on gun ownership, especially in allegedly enlightened jurisdictions such as the People's Republic of New York, where the late William F. Buckley Jr. had enough political pull to obtain a license to carry a gun, whereas Joe Sixpack has to say fugitaboutit.

I didn't think Patry's essay was very enlightening. He didn't give what I thought was a coherent argument to oppose the Court's decision. There are some good essays at the History News Network site on the gun law debate, particularly the one by David Young, which is a historically informed antidote to Patry's piece.

Well, Kid, what's not obvious to me is how to impart this obvious understanding in a few words.

It's like one of those optical illusions that's difficult to explain how to perceive, but once eventually perceived it is subsequently obvious.

I have compared it to heliocentricity. The erroneous interpretation of the Sun orbiting the Earth is more appealing to one's senses, until it is fully understood why the obscure motion of the planets can be more easily explained when the Earth is recognised to orbit the Sun.

That sentence of the 2nd amendment is one of the most poorly worded legal sentences I know of. It's not grammatically correct. (were there formal grammar rules then?) It's impossible to know, based purely on grammar, if the first clause is meant to be a REASON for the main clause or if it's meant to be a CONDITION for the main clause. It's just not possible.

I fall on the side that it is a REASON for the main clause. The right of individual people to keep and bear arms should not be infringed BECAUSE a well regulated state militia is necessary to secure freedom. The thing is, we don't really have a well regulated state militia these days except for the national guard. If we limit gun ownership to national guardsmen (following the alternate interpretation), we would violate the intention of the 2nd amendment entirely - for free people to be able to defend themselves against an oppressive government.

My point is that I don't see how this can relate to the copyright clause, which is a much better formatted sentence with a clearer meaning.