January 13, 2008 A Militia of One (Well Regulated) By <http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/in dex.html?inline=nyt-per> ADAM LIPTAK New York Times THE <http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme _court/index.html?inline=nyt-org> Supreme Court is poised to decide whether the Second Amendment guarantees an individual right to keep and bear arms or only a collective right tied to service in a state militia. While the arguments in the case will draw on history, policy and empirical data, the discussion must at least start with the text of the amendment. But as William Van Alstyne wrote in the Duke Law Journal in 1994, "perhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading." There is, he said, "an apparent non sequitur - or disconnection of a sort - in midsentence." How do the two clauses of the amendment interact? Does the first limit the second? Does it give a reason or the reason for the constitutional guarantee of a right to bear arms? At a debate at Columbia Law School in November, Robert A. Levy, one of the lawyers for the plaintiffs in the case before the Supreme Court, District of Columbia v. Heller, proposed a thought experiment. Suppose there were a constitutional amendment that said, "A well-educated electorate, being necessary to the self-governance of a free state, the right of the people to keep and read books shall not be infringed." Who would doubt that such an amendment protected a right to possess all books and to read books for purposes other than civic self-betterment? His opponent, Michael Dorf, a law professor at Columbia, countered that the amendment might well not protect pornographic books. 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 <http://topics.nytimes.com/top/reference/timestopics/organizations/n/new_yor k_university/index.html?inline=nyt-org> 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." Were it standing alone, many legal scholars agree, the second part of the amendment would be no harder to read and interpret than other provisions of the Bill of Rights. "There would still be much to thrash out," Professor Van Alstyne wrote, but few would doubt that the freestanding clause guaranteed a fundamental right like free speech. . <http://geo.yahoo.com/serv?s=97359714/grpId=11648958/grpspId=1705447214/msgI d=52900/stime=1200239791/nc1=3848627/nc2=3848643/nc3=4836040> [Non-text portions of this message have been removed] -------------------------- Want to discuss this topic? Head on over to our discussion list, [EMAIL PROTECTED] -------------------------- Brooks Isoldi, editor [EMAIL PROTECTED] http://www.intellnet.org Post message: osint@yahoogroups.com Subscribe: [EMAIL PROTECTED] Unsubscribe: [EMAIL PROTECTED] *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. OSINT, as a part of The Intelligence Network, is making it available without profit to OSINT YahooGroups members who have expressed a prior interest in receiving the included information in their efforts to advance the understanding of intelligence and law enforcement organizations, their activities, methods, techniques, human rights, civil liberties, social justice and other intelligence related issues, for non-profit research and educational purposes only. We believe that this constitutes a 'fair use' of the copyrighted material as provided for in section 107 of the U.S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/osint/ <*> Your email settings: Individual Email | Traditional <*> To change settings online go to: http://groups.yahoo.com/group/osint/join (Yahoo! ID required) <*> To change settings via email: mailto:[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
