[bitwize]

It was common in the late 18th century to provide a rationale for the passage of a law, but the law itself by its very passage becomes legitimate irrespective of whether it fulfills its stated purpose. The rationale doesn't restrict the scope of the law, it's simply a belt onion: there because "it was the style at the time".

Courts have ruled that the justification in the Second Amendment, of establishing and protecting "a well-regulated Militia", does not bind the amendment to apply only to the establishment and protection of a body designated as the militia (e.g., the National Guard).

Similarly, IP laws need not "promote the progress of Science and the useful Arts" to be legitimate. If Congress passes IP laws to protect large cartels with no public benefit, and maybe even public harm, those laws are in full force and 100% constitutional.

[lukifer]

I don't claim that original intent has any bearing on copyrights/patents being enforceable or legitimate. Similar to the 18th Amendment vs. the Volstead Act, the Constitution merely authorizes the power to the state, while specific laws of Congress handle the details.

I'm making the upstream normative claim: so long as we have intellectual property (there are certainly moral and practical arguments against it), laws passed by Congress should reflect that intent: that temporary artificial monopolies also carry positive externalities to society at large. While incentives for creation are certainly part of that story, I think there is a strong case for reforming that balance: shortening copyrights, limiting/eliminating patents on software and business methods, and strengthening fair use and consumer rights.

[monocasa]

> does not bind the amendment to apply only to the establishment and protection of a body designated as the militia

It does, but only because US code says that there's two militias. The organized militias (the National Guards), and the unorganized militias consisting of every able bodied man 17-45. Since the 14th amendment was written later, that bit of code is now interpreted to mean all adults.

https://www.law.cornell.edu/uscode/text/10/246

[bitwize]

That's not the interpretation used by the Supreme Court in D.C. v. Heller:

> The Supreme Court held:

> (1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

> (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. Pp. 2–22.

Per Wikipedia: https://en.m.wikipedia.org/wiki/District_of_Columbia_v._Hell...

[monocasa]

If you read the decision, it actually is the interpretation used by the Supreme Court there. You can actually see this in the next bullet that you cut off

> (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 Antifederalists 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. Pp. 22–28.

You can also see this clearly in US v. Miller, where sawed off shotguns were allowed to banned only because they had no military use (at the time). The unorganized militia must be allowed to use military weapons, which is why you can still go out and buy all sorts of crazy stuff like miniguns if you have enough money.