"Well Regulated" is not just preamble

There is only one place in the Constitution where individual rights are granted together with an express caveat that they may be regulated:  The Second Amendment (prior to DC v. Heller, it was unclear whether the Second Amendment granted individual rights at all).

The text of that amendment is as follows:  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. 

The other uses of the term (quoted at the end of this post) regard federal elections (art 1 sec 4), regulation of commerce (1:8), regulation of the value of currency (1:8), regulation of the military (1:8), regulation of commerce by the states (1:9), procedure in cases involving ambassadors (3:2), and control of federal property or territory (4:3) (4:2 was voided by the 13th Amendment).

The Founding Fathers surely did not throw the term "well regulated" into the Second Amendment as some kind of scrivener's error -- it must mean something.  Perhaps it means the same thing it means everywhere else it appears in the Constitution:   Congress is allowed to regulate the exercise of this right.  Because whether it is a musket or a canon, it is deadly.  As a practical political matter, they could not have meant to leave the right totally unfettered because surely slave states voting to ratify the Second Amendment weren't comfortable giving free African Americans in the north the right to stockpile munitions.  I don't think that is a huge leap.

But there is a more fundamental issue at play -- one that actually harmonizes the "well regulated" language with the grant of a right:  The 14th Amendment's Incorporation of the Bill of Rights.  Until after the passage of the 14th Amendment, the Bill of Rights applied exclusively to the federal government.  While the federal government could not, for example, pass a law requiring all children in public schools to wear crosses and be taught exclusively by priests, the state governments could.  This all changed with a series of Supreme Court decisions that read the 14th Amendment as forbidding states from infringing rights in the Bill of Rights.  McDonald v. Chicago includes an extensive discussion of the history of Incorporation, but does not address the characteristic of the Second Amendment:  A specific reference to regulation.

Is it possible that the "well regulated" language was intended primarily to allow states to regulate firearms in order to make sure that a militia could be created or maintained effectively while preventing rogue militias from being formed?  In the early days of the United States' republican form of government (small "r" republican -- states with broad rights, federal government with narrow rights), there was real concern about creating a strong federal government.  It seems clear that the Second Amendment was adopted, at a minimum, to allow states to push back if the federal government behaved tyrannically and unlawfully.

Bottom line is that whether the "well regulated" language was intended to allow Congress to regulate or not, it pretty clearly was intended to allow the states to regulate firearms.

The Supreme Court has held that the Second Amendment creates an individual right to keep handguns regardless of federal law to the contrary (DC v. Heller), but by ignoring the context of the Second Amendment's creation, McDonald v. Chicago applies that right to the states in a way that (while perhaps the correct outcome with regard to handguns kept in the home) does not address whether the Incorporation Doctrine has in essence voided the "A well regulated militia, being necessary to the security of a free State" language.  I don't think it has.

The United States has a long tradition of states having their own militias.  These now take the form of the "National Guard".  Does the Second Amendment permit the states to require that all adults without criminal records or mental illness own a firearm?  Perhaps.  Does the Second Amendment permit the states to limit firearms so as not to interfere with the security of a free state or with the security of its own militia?  Probably.

Granted, these thoughts are more in the form of a thought exercise than an extensively researched paper, but I would love to hear a cogent answer to this question:  "How can we discuss the constitutional limits to regulation of firearms without discussing the first three words in the Second Amendment:  "A well regulated....".

* * *

The term "regulate" or "regulation" appears in nine places in the Constitution. Only one of those uses (the Second Amendment) is a limited on the grant of a right to individuals.


Article 1, Section 4:  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Article 1, Section 8:  The Congress shall have Power To ...  regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;....
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;....
To make Rules for the Government and Regulation of the land and naval Forces;

Article 1, Section 9:  No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Article 3, Section 2:  In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article 4, Section 2 [voided by 13th Amendment]:  No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Article 4, Section 3:  The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Bill of Rights:

Amendment 2:  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.

The term does not show up anywhere else in the Constitution, Bill of Rights, or other constitutional amendments.

Enough with the "Patent Troll" Canard

The term “Patent Troll” was first introduced (or at least popularized) by Intel's then-general counsel Peter Detkin as a replacement for his previously-preferred term, "patent extortionist".  Early in the development of the term, it was defined as "companies that obtain patents only to license them, often using the threat of an injunction to extract a high price from infringers."  It has come to be far more broadly defined (Wikipedia defined it as "[p]atent troll is a pejorative term used for a person or company who conducts patent litigation against one or more alleged infringers in an aggressive or opportunistic manner, with no intention to manufacture or market the patented invention" on the day I posted this).

I'm not alone in believing that large corporations -- companies that infringe more technology than they invent -- have pushed a strategy of using it as a pejorative, vilifying term to create momentum for legislation that limits patent rights.  In part, mission accomplished.  Really.

So lets walk the term back.  What is a troll?  A “troll” sits under a bridge, contributes nothing to society, and demands money of those who wish to cross the bridge.  One of the most popular troll stories, ironically, is a cautionary tale for patent owners that they should go after small entities first, but lets assume that is not what those using the term are shooting for.  

How did the bridge get there?  Somebody built it.  Did the troll build it?  The story doesn't say.  Does the troll own it?  Unless the troll stars in a property law final exam, probably not.  So the troll in the fairy tales is a lawbreaker, extorting people (or billy goats) for money (or billy goat meat) in exchange for crossing a bridge he does not have legal control over.  At least one entity has accused a patent owner of extortion, but that is based on a rather unique fact pattern.

Application of the term to the patent world does not involve illegal acts of extortion, but would more or less fall along these lines:

"troll" is the current assignee of the patent;

"bridge" is the patent itself;

"crossing the bridge" is using the technology covered by the patent;

"bridge builder" is the inventor.

So now we retell the story, but follow the fact pattern of a "patent troll":  

An inventor toils away for months or years, designing a bridge.  The inventor pays for the land and the rights to build the bridge (patent office fees) and for the construction crew to do the work of getting the bridge put into place (attorney fees).  Because of a quirk of how the law works in this magical kingdom, the inventor has to pay all of these fees without any guarantee of actually obtaining the land or the rights to build the bridge.  The inventor thinks of trying to sell some big bridge company on the idea, but he knows that without some kind of protection, the big bridge company could just steal the idea, build a bridge way before he could, and probably bankrupt the inventor in the process. 

After many years of waiting (one of my brother's inventions took more than 13 years to issue), and after spending money year after year without ever knowing whether the bridge would be built, one day the inventor gets a letter saying that the bridge is complete.  By now, a decade or so later, the inventor has moved on to other projects and has developed new inventions -- nobody could reasonably expect the inventor to just stop everything while waiting to find out about the bridge.  How would the inventor feed and clothe his family?

Now that the bridge has been built, the inventor is free to sell it.  He has risked his capital, time, and effort for years on this project, and he wants to see the bridge used.  He just does not want to operate it himself.  To do so would mean abandoning all of the projects he has started during that decade the bridge was being built.  What inventor has time to sit under the bridge and ask every passing person for a toll?  What about big trucks, big companies, who refuse to pay the toll?  Does the inventor really have the money or time to give up inventing, shutter his other businesses and turn all of his resources to stopping the trespassers?  Of course not.

The inventor puts the bridge on the market, and to his surprise, Troll Corp. is interested.  They pay the inventor for rights to the bridge (and maybe give the inventor some part of every toll collected).  The inventor is thrilled, and plows that money right back into new inventions, hiring employees for his companies, hiring patent lawyers to protect new inventions (or paying back what he already owes the patent lawyers), and generally pumping new ideas and new capital into the economy. 

For its part, Troll Corp. knows it is taking a risk.  Nobody offers "bridge insurance", and there are dozens of different ways that the bridge could be found to be defective, owned by somebody else, or even non-functional.  It has taken a risk in buying the bridge, but it thinks it is statistically likely they will make a profit.  Troll Corp, however, specializes in bridges, and is able to use economies of scale to make sure that people do not trespass on its bridges.

Now the infringers approach the bridge, and Troll Corp. tells them that they can cross, but it is private property and they have to pay.  Troll Corp lets them know that trespassers are prosecuted.  Some infringers find another bridge, some pay the toll, and some trespass.  Troll Corp. sues the trespassers -- and Troll Corp. is the bad guy?

It is one thing to believe that there should be no private property, but it is quite another for somebody to walk right through your house every day because it is a short cut to their destination.  

If a company does not want access to patented ideas, they are free to not license them – but that does not leave them free to steal them.  For those holding the simplistic view that anybody who ever sues on a patent is a “troll”, ask yourself whether a landowner who paid to buy and maintain a bridge should really be powerless to complain when the biggest companies in the land regularly trespass over the bridge.

The American Dream is something that is written in the hearts and minds of creative, driven human beings -- not something written in the small print of an SEC filing.  When a corporation's purchase of private property (a patent) helps an inventor's dreams come true, when a corporation offers to free an inventor to create new technology, bring life to new ideas, that corporation should not be vilified simply because they are more efficient at utilizing that private property than the inventor was.  

If the independent inventor gave up his dreams, instead working as an employee of the same corporation, developing the same inventions, nobody would vilify the corporation for enforcing the resulting patents.  Have we really come to a place where we demonize corporations for buying and then using things developed by individuals and small businesses -- but give those same corporations a free pass when they develop the technology themselves?

I do not mean to minimize the potential for damage caused by bad patents or even stupid, heartless enforcement of good patents.  In future posts I will address some solutions.  But "patent trolls" are not the problem with the patent system.

What term do I use when discussing non-practicing entities?  I like to think of inventor-owned companies as PIE -- "Pure Invention Entity".  For non-inventor-owned, non-practicing entities?  Maybe "Creativity Support Entity" or "Invention Encouragement Entity". 

The Marriage Penalty is Back -- Except for Same Sex Couples

With the fiscal cliff deal, the Marriage Penalty is back in a big way.  Two single people living together earning $400,000 each are subject to a top rate of 35% on the combined $800,000 of income.  Two married people earning $400,000 each are subject to a top rate of 35% on the first $450,000 of income and a 39.6% rate on the next $350,000 of income.  Cost of that marriage certificate?  $16,100.

If Congress is really in favor of encouraging the "defense of marriage", shouldn't they be more worried about penalizing people for getting married than they are about preventing loving same sex couples from getting married?

Side note:  This tax structure is a bonus for the stay-at-home spouse.  Marrying a spouse with a job brings a tax penalty; marrying a spouse who stays at home brings a tax bonus.

As much as I think the "Defense of Marriage Act" is wrong, it does defend same-sex marriage in a way that opposite-sex marriage is not defended:  A same sex couple married yesterday in Maryland and earning $400,000 each pays $16,100 LESS in tax than an opposite couple married yesterday in Maryland -- because federal law does not recognize same sex marriage.  So they get all of the benefits of marriage under state law without paying the substantial penalty for being married under federal tax law.  Not a result the authors of DOMA intended, but perhaps an accidental reparations  for the discrimination DOMA brings in other areas.