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> Well, I already know this stuff, I was asking for your op or, if you didn't
have much of one, then about the scuttlebutt in your circles.
I don't know enough about American revolutionary war intellectual history to have an informed opinion. I have read the books I mentioned, but the stuff doesn't stick because I don't use it.
> Or, more
specifically, my question is: why is it that little scholarship or
scholarly debate on e-lists seems to raise the issue of the prior standing
of colonial "rights of man" given that "original intent" is such an
overwhelmingly central feature of the gun control debate
I dunno. Maybe because it's hard stuff that requires some technical expertise. Probably if you sign on to a gun or lib list you will see lots of people with supposedly informed views spouting off about these matters. According to Gary Wills, it's all rubbish. He thinks that the "armed citizenry" interpreattion of the 2A is a post-Civil War phenomenon that has nothing to do with colonial AMeruca. Wills says that the historical evidence is that widespread gun owership began when the Civil War vets brought their weapons homes, that around the time of the Revolution, guns were uncommon because they werte expensive. This was in some NYRB articles within the last year.
> and given that so
much of legal argument *is* based on tradition. [particularly given that
prior to the C, constitution meant the entire body of law, precendent,
custom, tradition, etc. Constitution, as in "body"]
Well, not so much, actually. The old Brit meaning of "constitutiona;" is absolutely dead in America, where "constitutional" refers to the federal and state constitutions and the case law construing these. Most law is not constitutional in that sense. I would guess that about 90% of the cases I have dealt with are pure statutory law. Maybe 5% touch on constitutional questions, few in interesting ways. I just wrote a constitutional opinion, a boring slam-dunk equal protection case about economic regulation. (In a case like that, the regulation is upheld.) I had one and a half pretty interesting constitutional questions last year on the appeals court, maybe I have had one this year on the district court.Most constitutional law is handled in terms of appellate and S.Ct precedent. This is true even on the S.Ct level. Few judges are originalists--Scalia and Thomas claim to be, and O'Connor will drag in the Federalsit Papers when it suits her, although she's not an originalist, really. My judge, like ,ost judges, would not think of going back to Revolutionary Era texts to interpret the constuitution unless expressly instructed to do so by S.Ct precedent, as with right-to-a-jury-trial jurisprudence under the 7A.
> Now I'm laughing reading Doug tell Wojtek he's scary b/c Doug you are
always on about what a piece of b.s. the C is. Any time anyone brings it
up, you blast 'em with the "Why is the C a sacred document?" argument that
makes it look like any appeal to the C is a blind allegiance to something
that is, at root, fraudulent.
He doesn't do that to me. Look, the C is not "scared," but it is the fundamental law, and some of it, particularly the Bill of Rights and the 14A, is pretty good. Anyway, it's not goping away real soon.
> As for this debate over the C be/t Justin and Woj: I think that you've
misread Woj's polemics. Firstly, "tecnicality" was raised in a specific
context, that of the Mumia case. That's how I read Woj's concern.
Ignorantly and stupidly, if he thinks that due process is a technicality.
> And, as
usual, Wojtek is correcting the left for their rather snobby attitudes
about Joe Sixpack and Suzy Winecooler. Which is to say, Wojtek might not
agree with people's views, but I think he's trying to suggest why an
arrogant left that pays these views no mind in its strategizing is getting
nowhere and the Limbaugh's et al do instead.
Well, that's a more charitable construction than I think his comments will bear. In view of his statements about responsibility, I think he shares the "Joe Sixpack" view that the guilty should be got, whatever the cost to our rights.
--jks