Is a Reason a Restriction? The New York Times on the Second Amendment


Prepare for more, much more, of this sort of thing as the Second Amendment promises to be the hot amendment of 2008, as the Supreme Court takes its first deep look at it since the 1930s in the Heller case.

Adam Liptak at the New York Times muses on the complications that come from the Amendment's initial clause that many read as qualifying and thus limiting the purpose of the Amendment:

There is only one other provision of the Constitution that has a similar justifying clause. Congress is given the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

But the justifying, or purpose, clause there does not seem to limit the operative one. All manner of works, useful and not, receive copyright protection, and in 2003 the Supreme Court allowed Congress to extend copyright terms by 20 years even though that after-the-fact extension was not obviously linked to the clause's purpose.

Many state constitutions have clauses that say why various rights are guaranteed. In an article surveying them in the New York University Law Review in 1998, Eugene Volokh concluded that the fit between purpose and command is often loose, "casting doubt on the argument that the right exists only when (in the courts' judgment) it furthers the goals identified in the justification clause."

Plus, check out their thrilling infographic breaking down some of the ways in which legal scholars have debated and interpreted the meaning of every clause of this most difficult little Amendment.

A veritable armory of reason articles on the Second Amendment and guns.