> At 1:11 PM -0400 7/17/04, Jon Johanning wrote:
>>> Books advocating racism should indeed be banned (and their authors
>>> imprisoned.)
>>
>> You guys in Oz are welcome to do whatever you like, but the First
>> Amendment in the U.S. is something I'm rather fond of, and would hate
>> to see trashed.
>>
>> The Second, however, is another matter...
>
> So you and your nominees get to pick and choose which of the Amendments
> suit you and should be kept?
http://www.firearmsandliberty.com/embar.html
> ...Reprinted from the Yale Law Journal, Volume 99, pp. 637-659
One of the best known pieces of American popular art in this century is the New Yorker cover by Saul Steinberg presenting a map of the United States as seen by a New Yorker, As most readers can no doubt recall, Manhattan dominates the map; everything west of the Hudson is more or less collapsed together and minimally displayed to the viewer. Steinberg's great cover depends for its force on the reality of what social psychologists call "cognitive maps." If one asks inhabitants ostensibly of the same cities to draw maps of that city, one will quickly discover that the images carried around in people's minds will vary by race, social class, and the like. What is true of maps of places --that they differ according to the perspectives of the mapmakers--is certainly true of all conceptual maps.
To continue the map analogy, consider in this context the Bill of Rights; is there an agreed upon "projection" of the concept? Is there even a canonical text of the Bill of Rights? Does it include the first eight, nine, or ten Amendments to the Constitution? [1] Imagine two individuals who are asked to draw a "map" of the Bill of Rights. One is a (stereo-) typical member of the American Civil Liberties Union (of which I am a card-carrying member); the other is an equally (stereo-) typical member of the "New Right." The first, I suggest, would feature the First Amendment [2] as Main Street, dominating the map, though more, one suspects, in its role as protector of speech and prohibitor of established religion than as guardian of the rights of religious believers. The other principal avenues would be the criminal procedures aspects of the Constitution drawn from the Fourth, [3] Fifth, [4] Sixth, [5] and Eighth [6] Amendments. Also depicted prominently would be the Ninth Amendment, [7] although perhaps as in the process of construction. I am confident that the ACLU map would exclude any display of the just compensation clause of the Fifth Amendment [8] or of the Tenth Amendment. [9]
The second map, drawn by the New Rightist, would highlight the free exercise clause of the First Amendment, [10] the just compensation clause of the Fifth Amendment, [11] and the Tenth Amendment. [12] Perhaps the most notable difference between the two maps, though, would be in regard to the Second Amendment: "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." What would be at most a blind alley for the ACLU mapmaker would, I am confident, be a major boulevard in the map drawn by the New Right adherent. It is this last anomaly that I want to explore in this essay.
I. The Politics Of Interpreting The Second Amendment
To put it mildly, the Second Amendment is not at the forefront of
constitutional discussion, at least as registered in what the academy
regards as the venues for such discussion --law reviews, [13] casebooks,
[14] and other scholarly legal publications. As Professor Larue has
recently written, "the second amendment is not taken seriously by most
scholars." [15]
<SNIP>
http://www.firearmsandliberty.com/embar.html
> --
Mr. Beelzebub