The Second Amendment is Alive and Little Change in Gun Law is Expected

From today’s Supreme Court decision:

Logic demands that there be a link between the stated
purpose and the command. The Second Amendment
would be nonsensical if it read, “A well regulated Militia,
being necessary to the security of a free State, the right of
the people to petition for redress of grievances shall not be
infringed.” That requirement of logical connection may
cause a prefatory clause to resolve an ambiguity in the
operative clause (“The separation of church and state
being an important objective, the teachings of canons shall
have no place in our jurisprudence.” The preface makes
clear that the operative clause refers not to canons of
interpretation but to clergymen.) But apart from that
clarifying function, a prefatory clause does not limit or
expand the scope of the operative clause. See F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed.
1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation
and Construction of Statutory and Constitutional Law
42–45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts . . . for
the enacting part to go beyond the preamble; the remedy
often extends beyond the particular act or mischief which
first suggested the necessity of the law.’ ” J. Bishop,
Commentaries on Written Laws and Their Interpretation
§51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165
(K. B. 1802)).
——————
3 As Sutherland explains, the key 18th-century English case on the
effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep.
404 (1716), stated that “the preamble could not be used to restrict the
effect of the words of the purview.” J. Sutherland, Statutes and Statutory
Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was
modified in England in an 1826 case to give more importance to the
preamble, but in America “the settled principle of law is that the
preamble cannot control the enacting part of the statute in cases where
the enacting part is expressed in clear, unambiguous terms.” Ibid.
JUSTICE STEVENS says that we violate the general rule that every
clause in a statute must have effect. Post, at 8. But where the text of a
clause itself indicates that it does not have operative effect, such as
“whereas” clauses in federal legislation or the Constitution’s preamble,
a court has no license to make it do what it was not designed to do. Or
to put the point differently, operative provisions should be given effect
as operative provisions, and prologues as prologues.

(Sorry about the formatting but, Blogger apparently doesn't like Word as copied and pasted from a .pdf file.)

The opinion is written by Justice Scalia. Cutting through the legalese, he says that what I would call the main clause (his prefatory clause) of the Second Amendment, the Militia part, is only there in case what I would call the subjunctive clause (his operative clause) needs clarifying. If the second clause is clear, you can ignore the first clause. This isn’t English or law as I learned them. The subjunctive is always limited to the main idea. You will note that he does not cite to an American legal decision for his proposition and he equates preamble with prefatory without any explanation; but, I don’t think it matters.

What the Supreme Court has done is left intact most gun legislation, local, state and federal, intact; but, it has guaranteed a decade or so of litigation about what the constitutional limit of regulation of guns is. The D.C. law didn’t pass muster. Probably a few others won’t. The great majority will.

Contrary to the media I’ve read and heard today, I don’t think the opinion is that important.