Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution
from the promote-the-progress dept
I was debating whether or not to write anything about this, but William Patry has done a good job discussing how the Heller case may impact copyright, and it's something I was concerned about, so it should be discussed. No matter what your thoughts on "the right to bear arms" (which was affirmed as an individual right in the Heller decision), it may come back to cause trouble for those of us who believe that intellectual property has gone too far and does not "promote the progress."As I've pointed out multiple times, one of the big questions concerning whether or not intellectual property law should be strengthened or weakened is based on how you parse the clause in the Constitution that enables Congress to create the IP system:
"The Congress shall have 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;"By my reading, that means that if the act of securing exclusive rights for a limited time does not promote the progress of science and the useful arts, then it is not covered by the Constitution. That is, the first part of the clause is defining under what conditions (to promote the progress...) it is okay to do certain things (secure exclusive rights). Thus, any intellectual property system that is shown not to promote progress (or worse, to hinder it) is by definition unconstitutional. Others, however, read that first part "promoting the progress" as a sort of "preamble" discussion. Thus, their reading is that securing those exclusive rights for a limited time, by definition, "promotes the progress."
So, what does the Heller decision on guns have to do with all of this? Well, as some in our comments pointed out way back in March, the key to the Heller decision was how the court interpreted part of the clause: "Because a well regulated Militia is necessary to the security of a free State...." If it interpreted that as meaningless preamble, saying that the right to bear arms had nothing to do with "a well regulated militia" then it opens up some pretty serious questions about constitutional interpretation. As Patry notes, the court can now treat sections of the Constitution it doesn't like as preamble, rendering them meaningless.
Again, so whether or not you're happy with the way the court decided the Heller case, the fact that it has no problem deciding that a clause in the Constitution can be ignored as "preamble" could have very bad consequences for those of us pointing out that dangerous innovation-hindering intellectual property systems are against the Constitution. Hopefully, the courts would still recognize that this clause is relevant and not meaningless -- but they now have the necessary tools to claim that promoting the progress is meaningless and has no bearing on whether or not a particular intellectual property system is constitutional.
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Filed Under: clauses, copyright, guns, heller, preamble, promote the progress, supreme court
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Reaching?
The best way to ensure this was to set up rules on how a militia is used, and to ensure private citizens always have the ability to bear arms to be used in defense of themselves, family, and state.
Unfortunately, these shadings of meaning didn't make it into the 2nd Amendment so all we have to run on in many legal theories is the letter of the law, which has been interpreted this way. So yes, it is possible to today make an argument as you describe following some of the same logic... but it's not a direct comparison and the preamble of the 2nd isn't meaningless. In the end it's up to the courts to judge.
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Re: Reaching?
I hope you're right, but I do think that this ruling makes it more difficult to make this point.
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"The purpose of patent law is to "promote the progress" and that should be determined at the economic level, not the legal level."
My response was fairly straightforward:
"In which case you should be interested in the eventual outcome of District of Columbia v. Heller, a "Second Amendment" case. An issue faced by the Supreme Court is the emphasis to be place on preambles to clauses in our Constitution. The "patent and copyright" clause possesses a similar structure...i.e., its "promote the progress" preamble. Interestingly, one of the citations by the District of Columbia on how this issue should be resolved is Graham v. John Deere..."
As the law now stands, there are three cases that allude to the preamble to Article 1, Section 8, Clause 8:
Schnapper v. Foley by the Court of Appeals for the DC Circuit, and Eldred v. Ashcroft by the Supreme Court, and Graham v. John Deere by the Supreme Court.
It should come as no surprise to anyone, including Patry, that the decision in Heller could impact at some time in the future the constrution given to the "promote the progress" preamble. While that question has never been specifically presented to the Supreme Court for a decision on how it should be construed, the "tea leaves" suggest that your definition of what the preamble means and demands is not a foregone conclusion. In fact, I daresay the caselaw to date significant latitude and deferrence given to Congress in matters pertaining to patents and copyrights.
You have repeatedly stated that "promote progress" can only mean one thing...demonstrable economic progress. Many of us have noted that "promote progress" is susceptible to more that just economic considerations. This is not to suggest that we are right and you are wrong, but only to note that this is not a black and white issue.
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Re: Reaching?
section 311 of title 10 of the United States Code.
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA
-HEAD-
Sec. 311. Militia: composition and classes
-STATUTE-
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
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now before we let our legal precedent hang on interpretation of commas, the historical context also clearly supported firearms ready for use in the possession of "citizens" (which of course was a more restrictive hurdle than today).
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It is more critical to examine 'Exclusive Rights'
I might as well repost my earlier comment.
Actually, copyright is NOT a constitutional right. The US constitution doesn't say anything about creating such a privilege, only the securing of exclusive rights. Such rights must necessarily already exist, i.e. be self-evident. The constitution doesn't create them, it recognises and stipulates their protection.
Just because you enact a privilege and call it a right doesn't make it a right.
See Constitutional Sanction for what a constitutional protection of authors' and inventors' exclusive rights would look like.
Authors and Inventors have a natural and self-evident exclusive right to their writings and discoveries WHILST THEY ARE EXCLUSIVE. If those authors and inventors choose to make them non-exclusive by sharing or publishing them, then clearly that natural right has dissolved. Of course, the enactment of copyright may attempt to legislate a continuance where the natural right ceased, but that isn't sanctioned by the constitution. Frankly, it's unethical let alone unconstitutional.
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this article
There are alot of tech junkies out there that are ready to destroy copyright law because their own selfishness.
This could be disasterous for the creative arts and entertainment. We will have 500 channels on the TV with nothing on them.
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"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
In this case we have a preamble that defines the reasoning behind this right, and then a right laid out.
"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;"
In this case we have a power of congress "To promote the progress of science and useful arts" and the manner in in which they are allowed to promote said science and arts. grammatically speaking these are really two separate cases. That said it was brought to my attention that this ruling should be the non-event of the history of the US. What the SCOTUS ruled is that our founding fathers intended to protect an individual right with the second amendment. The idea that was shot down was that they actually intended to protect the governments right to own guns. To think that the founding fathers would have put something in the bill of rights securing a right held to the government (state or federal) is absolutely ridiculous.
I would further argue that nothing in the promote progress clause says that congress can only secure exclusive rights if it is to promote the progress, only that securing exclusive rights has to be done with the intent of promoting progress.
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There's a slight difference in emphasis and wording
"The Congress shall have 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;"
vs.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In the first case, you have the constitution laying out what Congress has the power to do. In this case, it is "To promote the Progress of Science and useful Arts", and this power includes an explicit description of how Congress may exercise this power. It makes sense to say "Do X, and do it this particular way."
In the second case, you have the constitution iterating what the government is prohibited from doing. Logically, there is no way to list all the possible ways to *not* do something. So the only real interpretation of the preamble is that it is explanatory.
Of course, that's just a non-lawyers non-legal reading of the document. I'm sure there are any number of people who will tell me that, until I have years of legal training and experience, I can't even begin to understand plain English.
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Constitution grammar
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Selective misunderstanding
For example, consider a hypothetical:
"A well-educated Electorate, being necessary to the security of a free State, the right of the people to keep and read Books shall not be infringed."
No one would argue that this protects only the right of government employees to have books.
No one would argue that it protects only books about politics.
No one would argue that it does not protect newspapers.
No one would argue that it protects only books kept in your home.
No one would argue that reasonable infringements were OK.
A book "The Inconvenient Second Amendment" written by a noted hoplophobe* laid this out many years ago. The Second Amendment means what it plainly says, that the people (the same people mentioned in all the other amendments) have the right to keep and bear arms. Serious gun prohibitionists should have avoided a SC ruling at all costs and instead moved for a repeal of the amendment.
*hoplophobe - One with an illogical fear of firearms such as those carried by Hop Along Cassidy
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Re: Selective misunderstanding
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Re:
Assuming you are MLS, I agree. In fact, if you clicked on the links in the post above, I LINKED to your exact comment.
It should come as no surprise to anyone, including Patry, that the decision in Heller could impact at some time in the future the constrution given to the "promote the progress" preamble. While that question has never been specifically presented to the Supreme Court for a decision on how it should be construed, the "tea leaves" suggest that your definition of what the preamble means and demands is not a foregone conclusion. In fact, I daresay the caselaw to date significant latitude and deferrence given to Congress in matters pertaining to patents and copyrights.
Yes, this is exactly what I stated in my post. However, I find it highly problematic that the court could essentially ignore this part of the Constitution. Don't you?
You have repeatedly stated that "promote progress" can only mean one thing...demonstrable economic progress. Many of us have noted that "promote progress" is susceptible to more that just economic considerations. This is not to suggest that we are right and you are wrong, but only to note that this is not a black and white issue.
I've asked you in the past how else progress can be determined, and you refused to give an answer. I don't see how you can possibly measure progress of these things if not in an economic manner. If you actually have a better way, I'm sure we'd all be thrilled to hear about it.
This particular post actually has nothing to do with how you measure the progress, so I'm sort of surprised you would bring it up.
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Re: Re:
How about through the accumulation of scientific discoveries? The availability of new and useful information? Progress does not necessarily have to revolve around money.
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Re: It is more critical to examine 'Exclusive Rights'
It was as stupid then as it is now.
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Context folks....
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Re: Re: Re:
Both of which are easily measured in economic terms.
Progress does not necessarily have to revolve around money.
Aha! The root cause of our misunderstanding. Economics is not just about money either, and I'm certainly not saying that economic progress is judged only in monetary means.
I'm talking about expanding the pie of opportunity for benefit. Sometimes that's monetary, but often it is not.
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By and Not
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Re: Selective misunderstanding
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DC vs Heller ruling language
--- begin quote ---
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Anti-federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
--- end quote ---
There is considerable language in the ruling regarding what is here called the preferatory clause.
I agree that there needs to be some serious thought put into the interpretation of the "copyright" amendment as you present it here, but to start the discussion with this ruling as your basis deflects from what otherwise could be a serious and decent discussion.
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2nd Amendment ruling != negative for copyright reform
Personal feelings aside it WAS a good ruling by the way. As someone above said in the comments already, if firearm prohibitionists wanted to make a difference they would have tried to get an Amendment to change it and not fight the wrong war so to speak.
Before you assume I'm an NRA memember, I'm not. I don't even own a fire arm. But its the right of anyone to be able to defend themselves, and sometimes lethal force IS necessary. Saying otherwise shows how delusional you are to the real world. We aren't THAT civilized yet.
Anyways, I digress. Back to the point.
HOW IS THIS A BAD THING FOR COPYRIGHT REFORM?
It isn't. At least I don't see it as being bad. It actually helps us. The "Rules as Written" have been changed for the ill as far as most here are concerned. And the Heller ruling actually helps us for declaring certain aspects of copyright law UNCONSTITUTIONAL.
Remember, "limited time" and ONLY for the "progress of the sciences." Concentrate on gathering related evidence and build your case.
Luckily there is an entire world outside the United States so you have some places to point to where scientific endevours were accelerated by less stringent copyright terms. More importantly, you have places to show where progress halted because of US interference in foreign copyright laws.
A Smart Desision is always a Good Thing.
Just be sure YOU are smart enough to turn it to your advantage.
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Feeling a little ego-centric today, are we?
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Words and Mike Should Re-Read The Decision
http://digital-law-online.info/patry/patry4.html
One of the problems that arise today is hat the courts and congress try to re write the constitution every day.
These are the (The Constitution Is A Living Breathing Document) type who want the Constitution to say what they say it does and than be able to change their minds when it suites them.
The framers of the Constitution went out of their way to parse their words. To be at a time when people had classical educations, the most clear and concise phrasing that could be accomplished at the time. Today we have little or no understanding of the reasons and thoughts that went into the Constitutions creation.
So of course we don't know what it means and we fight over the words.
The part about preamble was not dismissed out of hard. But outlined by the words of the period and the situations they had just come through. From 1778 up through the first World War, we the USA did not have a standing army, but that the Army was made up of militias drawn from volunteers. Many of whom prior to the Civil War brought their own firearms.
I think the guys that argued the Disney copyright extension should have been better prepared.
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Thank you
Finally, there is someone that can actually read and understand plain English. I appreciate you writing what I was going to write, and saving me the trouble.
It just goes to show the level of utter degeneracy of our education system that people cannot read these plain simple sentences and actually interpret them correctly.
I fear for a country populated by people who can neither comprehend simple language nor simple logic. I appreciate your concise explanation as much as I am disgusted that so few people apparently could have created it.
Rick
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You're Way Off Dude
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Re:
Indeed. I think that's important as well, but I'm just pointing out how this decision may be used *against* the interests of fixing a broken copyright and patent system.
I'm in total agreement that the historical context is important, but just watch how this ruling is used should the constitutional clause of "promote the progress" ever come under scrutiny.
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As an aside, the above case is quite informative about how the Copyright Extension Term Act (CETA, aka...The Sonny Bono Act) came into being. So many keep decrying the US for "exporting" its laws to an unwilling world. Yet, CETA was in fact an "importation" of European law. The contentiousness associated with CETA was the extension of existing copyright terms, and Eldred v. Ashcroft ended the discussion by the Court giving broad deferrence to Congress in the exercise of its powers under the Patent and Copyright Clause.
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Re: this article
That may be true, but that would not be our position. We are presenting evidence as to how copyright law goes against its Constitutional purpose.
If you have evidence to the contrary, that would be good to see, but simply declaring our position invalid because you don't like it, while ignoring all of the evidence is not very convincing.
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Re: Re: this article
Isn't it more accurate to say that you are presenting evidence that there are in your experience ways of conducting business that do not necessarily rely upon copyright law?
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Re: this article
At what point did you start ignoring the points about expanding opportunity for the original artists? Or the points about the overwhelming majority of works, including copyrighted ones, as being built on the backs of previous works?
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Graham v. John Deere
http://supreme.justia.com/us/383/1/case.html
said:
"At the outset, it must be remembered that the federal patent power stems from a specific constitutional provision which authorizes the Congress "To promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries." Art. I, § 8, cl. 8. [Footnote 1] The clause is both a grant of power and a limitation."
A grant of power and a "LIMITATION"!!!
QED, as they say.
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Re: Thank you
Careful...this is a thread about copyright after all.
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Re: Context folks....
If context-of-the-day were important, than it needed to be encoded within the document.
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Re: 2nd Amendment ruling != negative for copyright reform
Show me any credible, non-anecdotal evidence that supports the above. It is absolutely rare that any homeowner has "protected themselves" by the use of firearms. There are significantly more incidents of private firearm misuse, including accidental.
In my opinion, the ruling on the 2nd amendment is the right one based on the text of the document being interpreted.
However, for someone to be under the belief that we live in "dangerous times" and that having a firearm in the home is a "security provision" is itself delusional. A delusion induced by a hypersensitive media and their statistics- and logic-challenged audience.
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Re:
Huh? What makes you assume I am liberal?!?
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Re: DC vs Heller ruling language
Indeed... but there's good reason to think that this reasoning will be abused to remove the question of "promoting the progress" from the discussion.
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Re: You're Way Off Dude
How is dude's analysis "way off"? How are the points made not appropriate critical thinking?
Hypocrisy is alive and well in Smarty Pants...critical thinking, not so much. ;-)
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Re: You're Way Off Dude
It's fantastic when people criticize me without actually making a point. It makes me wonder what they think they've accomplished other than making themselves look ridiculous.
If you have a specific criticism, raise it.
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Re: Re: Re: this article
No, we've been presenting both. One is of business models that don't require copyright, but equally important is seeing how copyright has actually done things to hold back progress.
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Re: There's a slight difference in emphasis and wording
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.
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Re: Re: You're Way Off Dude
If you have a specific criticism, raise it.
It's fantastic when people criticize me without actually making a point. It makes me wonder what they think they've accomplished other than making themselves look ridiculous.
If you have a specific criticism, raise it.
More than enough people have raised their criticisms of your comparison between the 2nd Amendment and Art. I Sec. 8 Cl. 8. See post 1, 5, 9, 10, 21, 22, and 24. Why restate them? This guy is just piggybacking on them.
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Re: Re: Re: You're Way Off Dude
And I responded to those points. But that individual did not do so. He just insisted that I was way off. That's not helpful to anyone.
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It looks simple enough to me...
I think your fear is unfounded because of two letters: ...To promote the Progress of Science and useful Arts, **BY** securing for limited Times to Authors and Inventors...
Not to split hairs, but elementary grammer alone is quite sufficient to inextricably link the goal (promotion of science and useful arts) to the "method" (securing ownership for limited times) simply by including that two letter word: "by".
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In addition...
The Heller decision should give you comfort because it demonstrated that the courts are capable of deciding that the language is clear and simple, with no tortured interpretations required.
Just beware of lawyers and judges who tend to display a liberal/progressive political bent. It is their arguments and decisions that tend to treat the Constitution as a "Living Document", open to whatever interpretations that can be twisted out of it. "Originalists" tend to have a more conservative political bent.
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sense
Stop the shilling!!
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Re: sense
Certainly, kings have granted such monopolies in the past to those whose business they wished to favour, but this doesn't make it ethical or without greater cost to others.
The constitution limits the state to the protection of its citizen's rights, and is careful to avoid giving sanction for such monarchical excesses as the granting of privileges - especially the elevation of favoured merchants above others, even as a reward for their originality or discovery.
That we still have such privileges in the form of copyright and patent just goes to show how corrupting these commercially lucrative powers can be.
It is constitutional to secure an author's or inventor's exclusive rights as this security promotes the progress of science and the useful arts. It is, however, unconstitutional to then grant authors or inventors privileges of exclusive manufacture or reproduction as rewards or incentives for the release of their works - even if it is considered that such rewards may further promote the progress.
Secure rights, but go no further.
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Really, Mike, you disappointed me here. All you have to do is look up the case on Wikipedia and look at the decision. It has bullet points spelling this out. On top of that, this was the major issue at hand being speculated on before the decision. Not whether the clause could be ignored.
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Re: this article
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Recent Fair Use case
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Re: Re: Selective misunderstanding
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Pass it on, copyright specifically rejected by author
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Re: Reaching?
This is all ridiculous claptrap. The SC specifically researched and rejected this line of thinking in the Heller decision (and the dissenters didn't even argue the point). It's simply wishful anti-gun bs that's been floating around for about 30 years. The Heller decision was perfectly clear in the historical intent, meaning, and purpose of the 2nd throughout our history.
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Reaching...
The 2nd says "A well-regulated militia..."
NOT "To form a well..."
It's the difference between a prefatory (or simply justifying) clause and a controlling clause.
Using the word "to" completely changes the form of the paragraph and indicates a specific goal that is controlling toward the actions of the paragraph. The framers specifically rejected such wording in the 2nd (the subject came up at the time), leaving the militia clause as prefatory, not controlling. The SC discussed this fact in the Heller decision.
So copyright is only endangered if the court suddenly forgets how our language works.
And, as many others have pointed out, the "To promote..." clause has already been enforced, meaning stare decisis will likely keep it in force for the foreseeable future.
Cheers...
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