October 16, 2012

“Justice Stevens: Second Amendment is ‘no obstacle’ to banning automatic weapons”

…and that’s because to “liberal” Justices who practice a form of Living Constitutional textualism whereby the intent of the founders and framers can be ignored and the application of signifiers can legitimately be rewritten — that is, turned into new signs entirely, fundamentally altering the text and creating an entirely new text, one written by the interpreter — to meet new contexts or social goals, aren’t constrained by anything other than their own presumed cleverness and the massiveness of their egos as philosopher kings rather than Justices.

For instance, per retired Justice Stevens (my emphases):

[…] the Heller decision leaves the door open to banning the carry of weapons in public. “There’s a very powerful argument for saying it does not extend to disagreeing with local communities about decisions about which public places they should not be permitted to be carried [in],” Stevens said.

Allow me to clarify:  per Stevens, and bracketing the text of the Second Amendment, because it is their own palimpsest of prior rulings that the Court treats as a replacement for the Constitution itself, the right to bear arms, not just own them — an essential part of their usefulness, incidentally, as if that needed to be pointed out — is not fundamental, and if a local jurisdiction wishes to take away that right, well, then of course they should be able to.  That is to say, in a Q&A about the constitutionality of so-called gun-free zones — like, ironically and with a degree of brazen cognitive dissonance, the one in which the Batman killer went on his spree safe in the knowledge that he was entering a venue where law abiding citizens would not be carrying weapons for their own defense or the defense of their friends or families — Stevens argued that the conditions for those kinds of malevolent turkey shoots are just peachy, and quite possibly what the Supreme Court, in interpreting the Constitution, could construe the Second Amendment to mean:  that you have a right to keep and bear arms, except where you don’t, and if that means you’re at the mercy of those who ignore our dictates, well, sorry, but such is the way we Olympians in Black Robes see the world.

Stevens also had a recommendation for people who keep a weapon in their homes for self-defense purposes. “Maybe you have some kind of constitutional right to have a cell phone with a pre-dialed 911 in the number at your bedside and that might provide you with a little better protection than a gun which you’re not used to using,” he said to laughter.

The National Rifle Association believes that President Obama will “stack the court” with anti-gun justices if he is reelected and Justices Ginsburg, Breyer, and Kennedy leave.

“If those three left, he could stack the court with a 6-3 majority rule for the next 30 years,” Chris Cox, executive director at the NRA’s Institute for Legislative Action, said in April.  “If that happens, the Second Amendment will be reduced to a government-granted privilege.”

Again, here we see the sneering liberal affection for credentialism and its fundamental distrust of the “masses” who can’t possibly train themselves to use firearms responsibly or efficiently. Instead, have a cell phone ready with 911, so that when an armed assailant enters your home, you can talk to police dispatch all the way up to the time where they have enough information to send out a squad car or other show of force.  Which show of force, during the Columbine massacre, for instance, staged outside and waited to enter, unsure of the specifics of the attack.

Meanwhile, in the recent Sikh attack highlighted at the beginning of a video presentation on the gun violence Stevens thinks can be stopped by taking guns away from law abiding citizens and supplying them instead with quick access  to armed agents of the state to come and save them, it was a citizen with a gun who ended the massacre before it got worse.

The reason why I continue to beat the drum of reestablishing a coherent hermeneutics is that it helps prevent these kinds of sneering dismissals of the Constitution in favor of the ego-driven social engineering of activist judges.  What Miller or Heller say, for instance, should be largely irrelevant to such questions.  The Second Amendment says, explicitly, that the right of the PEOPLE to KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.

As our revolution began over attempts to confiscate cannons, we can assume from an originalist perspective that the Framers were not willing to concede a natural right of self preservation to temporary lawmakers with whatever agendas they may have — and more, to Justices whose job it was to read and apply the Constitution, not gradually change it until they force a deconstruction and inversion of its intent by a willful imposition of theirs.

Notes Elizabeth Price Foley:

Ironically, it would be the “living” constitutionalists on the Court–such as Stevens–who would feel free to interpret the word “arms” in the Second Amendment to encompass “cell phones.”  Because after all, words–even constitutional words–are infinitely capacious.

— to which I’d add only this, if Glenn would be so kind as to permit me a small criticism:  in addition to putting quotes around “living” and “arms” and “cell phones,”  I’d add one more set of quotation marks — to me, the most important of all:  the idea that one is “interpreting” the word “arms” by resignifying it as cell phones, (or a frying pan, or a sharpened pencil, or a stiletto heel, etc) is linguistically incoherent and a bit of hermeneutic sophistry meant only to privilege the interpreter over the author/ratifier:  to legitimately interpret — as opposed to “interpreting” — one must be interested in what was meant at the moment the signifier “arms” was attached to its signified / referent by some intending agency, then ratified into law by those sharing a similar understanding of what the word, what that sign, was intending to mean.  That is, to interpret at all, we must be convinced that, in the first place, we are looking at language in need of interpreting; and what makes language language, rather than mere scribbles (the signifiers that make up our linguistic code) that can come to look like language, even by accident (for instance, conceive of egret scratchings on a beach that accidentally appear to produce a phrase of some sort; do we then believe the egrets were trying to send us a message? Or do we recognize that what we see is an accidental simulacrum of language rather than language itself?), is our recognition that some agency turned those signifiers into signs by adding to them their specific signifieds.

At that moment of sign creation — or in corporate intention, at the moment when the signs are agreed upon — those signs mean what the mean, having become fixed by the intentions of those who created them and intended them to be understood as a second-order linguistic representation of their intent.

To those who engage in so called “living constitutionalism” — or even those who engage in true textualism, and defend it as a legitimate methodology for interpretation (rather than understanding that they are merely agreeing to work within a specific set of legal conventions) — what is removed as a matter of course is the intent of those who created the signs, often to be replaced by the willful, creative intent of those who are charged with “interpreting” the signs to bend the signifiers they are confronted with to meet some pre-decided conclusion.

Intentionalism just is.  Either we privilege the intent of those who constructed the text we are charged with interpreting — and to do so we must first acknowledge that it is a set of signs, that it is language, and therefore carries in it the codified intent of its author(s) or ratifiers, that it means, and it means to have its meaning respected and faithfully reconstructed;  or we surrender interpretation to “interpretation,” which merely legitimates the position that whatever some set of “interpreters” can do with the signifiers — while bracketing the signifieds  added by the authors responsible for creating the language and the text in the first place; that is, disregarding what was meant by what it is they are now charged with interpreting, and deciding that they can now claim ownership of the text by rewriting it within the parameters of what they can make seem plausible based on the signifiers they have to work with — comes to count as a legitimate form of meaning transference.

Or, to put it more succinctly, either we believe the function of interpretation is to uncover what the author(s) were trying to say to us through a message fully intended by them; or we believe the rewriting of that original intent by those motivated on the receiving end of the message to ignore original intent and replace it with their own is a legitimate form of “interpretation.”

It isn’t. It is intellectual theft.  It is sophistry. It is an arrogant will to power.  And it completely destabilizes both language and law, making them mere tools of control for those willing to wield such a fundamentally dishonest, cynical, and incoherent conception of language function to their own political and social advantage.

The sooner we begin to concentrate on what it is we think we’re doing when we claim to be interpreting — and investigating the spurious and malignant assumptions that have become, to a large extent, institutionalized — the sooner we’ll escape the traps set by those wishing to diminish the autonomy of individual meaning and replace it with the will and consensus of some interpretive community that is more often than not politically motivated.

These are not fundamentally unserious issues. They are paramount.

And I’m going to keep shouting it until someone out there takes heed and begins to listen.  Otherwise, even when we win we continue to lose:  because the theft of individual meaning “legitimately” replaced by consensus rewritings of that meaning — which in many cases is then attributed back to the original author, despite it being a complete and intentional mischaracterization of his intent (RACIST! DOG WHISTLE!) — is a concrete example of the epistemological ascendancy of collectivism over individual sovereignty, of mob rule over protection of individual property.

This is about more than just your guns. It’s about the systematic diminishing of you, a function of turning you from citizen to subject.

Face it. Or don’t. But it’s happening.

(h/t JHo)



Posted by Jeff G. @ 10:26am

Comments (17)

  1. Just to note, not Reynolds but Elizabeth Price Foley.

  2. We see the American Left framing a lazy spiral to what the United Nations has determined is our acceptable niche in *their* world. Disarmament comes so easily and naturally off the tongues of these controlling legal authorities, doesn’t it?

  3. So, by corollary, Stevens would argue the First Amendment says I’m free to write whatever I want, so long as I keep it to myself?

    Is that about it?

  4. Stevens is a douche.

  5. Current White House adviser Samantha Power, while a Harvard University lecturer, wrote in the New Republic’s March 3, 2003 issue: “Instituting a doctrine of mea culpa would enhance our credibility by showing that American decision-makers do not endorse the sins of their predecessors.”

    Let’s repeat that: Instituting a doctrine of mea culpa would enhance our credibility by showing that American decision-makers do not endorse the sins of their predecessors.

    “Our” credibility is enhanced by utterly separating ourselves from sin, attributing all to the “predecessors”. That’s just about a perfect statement of Obama’s stance. He will have none. They will have all.

  6. Apologies on two grounds for that last: 1) wrong thread, and 2) link.

  7. Stevens said: “The Court did not overrule Miller [in Heller]. Instead it ‘read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns . . . Thus, the Second Amendment provides no obstacle to regulations permitting the ownership or the use of the sorts of the automatic weapons used in the tragic multiple killings in Virginia, Colorado, or Arizona in recent years.”

    I find it interesting that Stevens doesn’t think that common pistols or rifles (such as used in the incidents he names) are “typically possessed by law-abiding citizens for lawful purposes”.

    And yet it turns out that they are so owned; the auto-loading pistol and rifle are nigh universal in the gun cabinets of lawful owners of firearms. One almost wonders what he thinks the “typically possessed” weapons are, if he’s actually spend five seconds pondering the matter.

    (He also mischaracterizes Miller, which held – in a way that is rather in tension with Heller – that the arms the Second Amendment protected were explicitly those of military utility, like machineguns.

    [” Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense”, referring to Miller’s short-barreled shotgun.

    The strong implication being that the Second Amendment most definitively protects ordinary military equipment that is suitable to the common defense.

    Like, you know, a medium machinegun or an anti-tank rocket. If I was Justice Stevens I wouldn’t lean too hard on Miller rather than Heller…])

  8. About the meaning of excellent interpretation: it seems somehow connected to the notion of the being of being Prof. Strauss was wont to comment on regarding his teacher Heidegger’s search for the intentions of the ancients’ meaning (and in particular, Aristotle’s) as to that elusive “being of the beings”. In brief: presence — being here and now. But by this what we seem to take for the best of most things in human affairs, those excellences of performance in nearly any endeavor — from achieving success in a pressure filled at bat in post-season baseball, to standing out in a political “debate” or verbal confrontation, to shining in a balletic dance routine — is a kind of presence, a making present. In interpretation however, we’re tasked with making two presences present to be here and now: first, our own and second, the meaner whose meaning we’d seek to interpret, bringing them fully forth as though they stand in the flesh before us to defend themselves and their words directly. It’s not easy.

  9. HAHAHAhahaha…

    Crazy old bastard thinks he gets to decide what I can do with my rights…

    Wrong. And dangerous. I’m heavily armed, and touchy about such things.

    Maybe you should try and placate me instead, Pops. Or, just possibly, stop reading your personal preferences into our foundational document.

    “Cause that shit’s just plain annoying.

  10. 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.

    I would call attention to the “militia being necessary to the security of a free state” part. The purpose of having a citizenry who can bear arms is not so they can hunt bunnies. It’s so they can defend the security of a free state. Being able to hunt bunnies and being able to defend oneself are side benefits. Given that these arms are to be capable of being used in a militia for the defense of a free state, shouldn’t these arms be capable of putting up a defense against all agressors? How would things have gone at Bunker Hill if we’d only had slingshots when the British had rifles? Also, “Red Dawn” would have been a much shorter movie.

  11. “…and by the way, Mr.Speaker, the Second Amendment is not for killing little ducks and leaving Huey and Dewey and Louie without an aunt and uncle. It’s for hunting politicians, like in Grozny, and in the colonies in 1776, or when they take your independence away.” — Bob Dornan, former Congressman from California

  12. Hunting bunnies, or in the end, eating, as it might also be termed, is part and parcel of defense of self, a primary thing — or in other words, part of the first natural right: life.

  13. I call attention to the “right of the people” part. Contra Justice Stevens, it’s still there and not only in the Second Amendment. What it means in the other amendments is what it means in the Second.

    As for calling 911, when seconds count, the police are under no legal obligation to come at all.

  14. Or even to answer the phone.

  15. David Henderson on Milton Friedman, again via Mike Rappaport at LibertyLawBlog: Friedman on Chicago vs. Columbia, mostly for the quote from Friedman. Thus:

    In 1964–to the disgust and dismay of most of my academic friends–I served as an economic adviser to Barry Goldwater during his quest for the Presidency. That year also, I was a Visiting Professor at Columbia University. The two together gave me a rare entree into the New York intellectual community. I talked to and argued with groups from academia, from the media, from the financial community, from the foundation world, from you name it. I was appalled at what I found. There was an unbelievable degree of intellectual homogeneity, of acceptance of a standard set of views complete with cliche answers to every objection, of smug self-satisfaction at belonging to an in-group. The closest similar experience I have ever had was at Cambridge, England, and even that was a distant second.

    The homogeneity and provincialism of the New York intellectual community made them pushovers in discussions about Goldwater’s views. They had cliche answers but only to their self-created straw-men. To exaggerate only slightly, they had never talked to anyone who really believed, and had thought deeply about, views drastically different from their own. As a result, when they heard real arguments instead of caricatures, they had no answers, only amazement that such views could be expressed by someone who had the external characteristics of being a member of the intellectual community, and that such views could be defended with apparent cogency. Never have I been more impressed with the advice I once received: “You cannot be sure that you are right unless you understand the arguments against your views better than your opponents do.

    This too, we might say, argues in favor of a robust intentionalism on practical or utilitarian grounds, insofar as better familiarity with the intender will result in better familiarity with the arguments he would make as such.

  16. levin just talked about this @10/16/12