The ACLU makes a right (or, maybe, "correct") turn
From Jacob Sullum, “Driving While Armed,” Aug/Sept Reason (print edition):
Since “the constitutional right to bear arms is primarily a collective one,” the American Civil Liberties Union has said, the extent to which the government should restrict gun ownership “is a question left open by the Constitution.” In a longstanding break with this position, the ACLU of Texas is defending the rights of motorists to carry guns in their cars.
[For background on the “collective right” interpretation of the second Amendment recently found wanting by the DC circuit court, thanks to an open appeal to both contemporaneous writings and intratextual patterns to argue for the framer’s intent, see my previous post here.]
Texas law has long exempted people who have guns in their vehicles while “traveling” from prosecution for unlawful carrying of a weapon, an offense punishable by up to a year in jail. But the definition of traveling was fuzzy, leaving gun owners vulnerable to arrest, prosecution, and conviction, depending on how police officers, prosecutors, and judges decided to read and apply the law. In 2005, at the urging of the Texas ACLU as well as gun rights groups, the state legislature passed a law aimed at ensuring that, as the bill’s author put it, “a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle.”
But in a February 2007 report, the Texas ACLU, the Texas State Rifle Association, and the Texas Criminal Justice Association showed that many district and county attorneys were instructing police to carry on as before, arresting gun-carrying motorists at their discretion and letting prosecutors and judges sort things out. The report criticized prosecutors for flouting the law and recommended new legislation to correct the problem, which the state legislature passed and sent to the governor in May.
Scott Henson, the former director of the Texas ACLU’s Police Accountability Project and author of the report, says the state chapter has not officially endorsed a constitutional right to arms. But “we inched them toward a Second Amendment position,” he adds, by demonstrating the potential for a left-right alliance on civil liberties issues such as car searches.
Henson hopes more ACLU members will recognize that “the erosion of individual Second Amendment rights has had the unintended consequence of allowing law enforcement to abrogate other important liberties.”
A nice first step for the ACLU — and one that is being driven, allow me to selfishly point out, by a reconsideration of the plain meaning of the Second Amendment, at least insofar as it is read in conjunction with other contemporaneous writings concerning “the people” and how they are to be defined for purposes of distinction within an overall collective.
Which is to say, by appealing to intent, the “meaning” of the Second Amendment is being dragged, legislatively-speaking, back toward its original aims. And the result, unsurprisingly, is that, by privileging the individual — as is the Constitution’s design (and the underlying principle of American political philosophy) — the margin for interpretive “play” on the part of judges and prosecutors is narrowed, and their attempts to broaden the power of regulation against individuals subsequently constrained.
Of note here is that, in each case of prosecutorial and judicial overreach, those on the side of individual liberties went through legislative channels to have their concerns addressed.
And in so doing, it will take a court ruling that these new legislative demands are somehow unlawful for the courts and prosecutors and police to find ways around the will of the people.
Of course, what is also in evidence here is that the court began by intentionally misreading the original law — defining the word “traveling” broadly enough — or narrowly enough, in other cases — in order to inject their own interpretive will into the “meaning” of the legislation.
That is, they were able to avoid the intent of the original legislation by grafting onto the “signifiers” signifieds — the method of creating signs — that were never intended by the legislature.
By that route, they were able to say that the law “meant” what it “said” — and reject the intent behind it.
As I’ve argued on numerous occasions, however, by refusing to appeal to original intent (which is the goal of interpretation as such), courts are routinely able to finesse text to impose their own wills on the language — which isn’t even language, I’ve argued, unless the signifiers (the marks that make up what looks to be language) are considered in light of having already been signified by some agency.
By breaking from the injunction — “textualists” (or formalists often try this gambit) — we are left with a justice system wherein the judicial branch can, at its whim, circumvent the will of the people by circumventing the will of the legislature, a maneuver they accomplish by supplying their own signifieds to the signifiers before them, turning them into intended signs which they then pretend they have “interpreted” rather than “re-inscribed” by foregrounding their own intentions.
In some cases, the remedy is easily fixed by a rewording of the law (as was done here — though, had the courts and prosecutors not been so socially bent on misreading the intent in the first place, the rewrites would, presumably, not have been necessary). Ultimately, however, what this case highlights is the importance of precise language being incorporated into legislation; and the rewards for individual freedom that are the result of an application of the law that does the difficult work of making sure that they are applying the law that has passed and not simply the law as they wish to see it.
And this reward begins with a proper understanding of how interpretation works, and how — in contrast — what often passes for “interpretation” is little more than re-inscribing based on personal biases, or, to put it more bluntly, a rewriting of the law that uses as its template the signifiers (marks and squiggles) on the page.
Language is language only when it is considered alongside intent. Convention, iteration, resemblance, differance, et al — all these all are merely tools to divine and decode intent and to complete the speech act. Which is not to say we aren’t free to do other things with the signifiers we’re given. Only to say that we must be clear on what it is we are doing with them — particularly inside a system where the will of the people is to be interpreted and applied by the judiciary.
Of course, regular readers of this site will readily recognize how my argument here tracks with my long-standing critique of interpretive paradigms that problematize meaning by untethering it from its primary source and reconstituting it on the receiving end of the speech act, even while it pretends that what it’s doing is “interpreting”.
Which it is not. It is rewriting to suit the ends of those in a given “interpretive community” — a move that gives rise, in other instances, to truth through consensus.