Doug Henwood <dhenwood at panix.com> wrote: andie nachgeborenen wrote:
>However, I am with Rorty, who agrees with Q & D about
>meaning (which I do not), and likes Derrida DeMan and
>Heidegger -- and thinks that politics and law should
>absolutely NOT NOT NOT be based on anything so
>contentious and deep as theses in the philosophy of
>language.
What a weird separation. So meaning is only uncertain in things that don't matter, like literature, but when it comes to law, everything is fixed and crystal-clear? Why do we even need courts to interpret law, then? Shouldn't the meaning be self-evident?
* * *
No, meaning is as unstable as it is whereever. Believe you me I know better than you how unstable or uncertain it is in law. That's why they pay me all this money. But Rorty's point is that you cannot, in democracy, in a free society, make your laws based on the idea that some highly contentious philosophical theory, like deconstructionism or Quinean indeterminacy of translation or whatever is right. Rather, we have brute force procedures for resolving the uncertainties based on lowest-common-denominator ideas that are neutral on all of that. Thus, the meaning of a constitutional or statutory provision is decided by what the courts say, and they decide based on the semi-fiction of plain meaning and on precedent and other things they throw in the pot.
So, right now, the 2A means, no individual right to bear arms, see Miller and all the Circuit Court cases except for the 5th Circuit. Of course lawyers and litigants and the public and the legislature can change those meanings in various ways. But the point is, no one has to accept a philosophy of language to accept that this is a pragmatic way of settling disputes at least provisionally. Which is good, don't you think?
>As the bit of the U.S. Code
that Jordan cited
has it, you & I are members of the unorganized militia. What's that
mean? Is it clear and stable to you? I didn't know of this status
until about an hour ago. I want to go somewhere and claim my gun.
I have no idea what the militia that is not part of the National Guard is. Btw, the provision doesn't say "unorganized." It just says, some militia is in the USNG, and some of it isn't. But I do know how to find out. Seewhat the courts have said. If nothing, then we still don't know. But no matter, the US Code can't illuminate the 2d A.The US Code is not the Constitution. It has no Constitional authoritry. It is subject to the Constitution, as interpreted by the Courts.
>So my reading is not driven by policy. It's just the
>language of the 2A. Anything else just seems tortured
>and implausible to me.
> Did you really type this with no sense of doubt or irony? That's just
the way it is. Case closed. Never mind that millions - including
lawyers, political scientists, and historians - disagree.
Yup. Sorry. Former law clerk's arrogance, I guess. I used to do this all the time: "the language of the provision is plain." Now of course I can just pitch such arguments to the courts, see if they agree. I'm not au courant on the details, but I have read the 5th Cir. case (now) and a half dozen of the leading law reviews articles on the subject, and I am not impressed. As for millions, well, if they feel that way about it, let them organize to get either the courts or the legislature to make their meaning clear.
> This is a weird sentence to think you've got a lock on: "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 militia isn't defined. What is it? Something
different from a standing army, but what? The national guard? Mark
from Michigan's outfit? Lazare's piece goes into how the 18th century
used the word - but we don't need to worry about that, because the
meaning is self-evident over 200 years later.
Whatever it means, it can't possibly mean that a citizen who isn't part of some well-regulated organization necessary to the security of the state has a right to bear arms. The 2A fans want to have an individual right to bear arms, not as part of a group, independently of regulation, and having nothing to do with the security of a free state. That won't wash, sorry, and if Derrida tells you otherwise you can tell him to get a real job.
> And what about "State"? The United States? The individual states?
Madison originally said "country" - the Consty says "state." Does
that matter?
Back then, probably yes, meant the State of Virginia or whatever. Since the Civil War and 14A, gotta mean the United States.
> Dan Lazare's piece is also an attack on constitutional fetishism -
the touching belief that that sacred document holds all the wisdom we
need in troubled times. Who needs politics and history? It's all
there, frozen timeless wisdom from a century or two ago.
I never said that. I do think the C is a pretty good document. It might not be the one we'd write now, and it has things I really hate, like the Electoral College and the unrevisable 2-Senators-a-State provision. But it's robust and flexible. And decidedly not frozen. But whatever it is, it's the law, and we were talking about what the law was, not whether the C was a Good Thing. Even if it's a Bad Thing, it's the law.
Doug ___________________________________ http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
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