June 29, 2007

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.

Posted by Jeff G. @ 9:33am
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Comments (14)

  1. 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.

    Everytime you write on this theme I feel like I’ve attended a university seminar

    In a fantasy university where such classes were tolerated by what passes for most contemporary academia.

    Excellent, JeffG.

  2. What causes judges and the like to fool themselves so? To convince themselves that what they are doing is “interpretation” and not the rewriting the text? Are they all truly so feeble-minded?

  3. Jeff;

    Your writings on the Second Amendment never fail to illuminate, inform and satisfy, like a six pack of Ring Dings. You’ve put such a high quality of analysis into this issue and I echo Darleen’s sentiments.

    Feel free to delete the whole Ring Ding reference.

  4. Are they all truly so feeble-minded?

    Perhaps. But that’s probably not the best answer. I have a hunch the truth lies elsewhere.

  5. Jeff,

    Is it strange that I have an overwhelming desire to strangle someone every time Deconstructionism or one of its related terms is mentioned?

  6. It never ceases to amaze me that anyone who read The Federalist Papers or any of Madison or Jefferson’s contemporary comments could conceivably cling to the “Collective” interpretation of the 2nd Amendment. What part of “the right of the PEOPLE” don’t they understand?

    But then, I’m assuming that these bozos actually read what the Framers wrote, which is a dangerous assumption on my part.

  7. Are they all truly so feeble-minded?

    Feeble enough to think lesser of those who allow them the priviledge of a bench.

  8. The case for the “individual” position is so overwhelmingly well-documented, consistent, not to mention obvious, that it is almost effortless to make.

    Which makes me wonder why the “collective” position is even argued – apart from malice, dunderheadedness, or a dependence on the laziness of others. I am willing to discuss the issue with someone who believes the constitution is wrong – and/or needs to be changed. But I will not go more than one round with a “collectivist,” as after that round if they hold to that position, they are lying, not just ignorant.

    Especially in light of the writings of the founders, the second amendment cannot have been written with state-controlled militias as the recognized party – to claim so after reviewing the evidence is rather like claiming that fire can’t melt steel after visiting a foundry for a tour.

    You can’t talk to people like that, you can only do you best to ensure the rest of the participants are aware that they’re lying (and quite deliberately, no matter the motivation behind the lie).

    Unfortunately, this is one of those “religious debates” where so many participants and observers don’t really give a rat’s patoot about evidence.

  9. I see the ACLU has continued with the sham fence mending. After spending the last couple of decades singularly wacking on Christianists for their puny Biblical displays while egging on the Islamic envelope pushers, they were in sore need of some repair in the image department. Presto, they’ve recently begun defending NAZIs again and now actually doing some 2nd amendment stuff. Does Texas NEED the ACLU to do this? Certainly the NRA has got enough lawyers with boots on ground to do the trick?

  10. Thing is, the Texas chapter of ACLU needs to raise funds in Texas. It’s all about the do-re-mi.

  11. 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.

    Thueth was a mere demigod speaking to the King of Gods. It’s from this pan optic imbalance of God power that sticky penis envy is wrung from the metaphoric wet towel of mimesis. Always the priapic perimeters of power prevail; ubiquitous phallocentricity if you dare! Unwittingly our electric eels hang low from the barn doors of our khaki shorts, it may not seem the thing to do at a dinner party but damnit, we are all in on the action. Masculine bred beasts we are, swinging our patriarchal discourse like a fungo. Bam, bam, bam! I raped and robbed six separate communities, communes more specifically, before I finished my second drink while in mixed company last night. I propagated the likelihood of Kobe being dealt to a Eastern conference team, Philly, probably, and I was horribly cocksure with my thesis. Awful bastard that I am, surely I’ll pay handsomely in middle-age shrinkage for my brazen discourses.

  12. Sadly, this was my favorite post yesterday, and it got the least play. Even sent it off to Reynolds, who is a big second amendment guy.

    Intentionalism just doesn’t sell. It’s simply not “democratic” enough for a culture of entitlement.

  13. Comment by Jeff G. on 6/30 @ 8:59 am #

    “Sadly, this was my favorite post yesterday, and it got the least play. Even sent it off to Reynolds, who is a big second amendment guy.

    Intentionalism just doesn’t sell. It’s simply not “democratic” enough for a culture of entitlement.”

    Well, Jeff, maybe it’s you, and your deference to the transfer of ideas through means of abstract imitations of labor. “Hitherto, the class struggle!” And all that. But can’t you see it? “Sell!” You invoked the term “sell!” To wrap all your intentions into Freudian dominant discourse would be too post-structuralist this early in the morning, referring to the emptiness in me tum-tum, but I suggest in you re-read your own logical largess with a deconstructionist’s eye – lots of oppression and repression! – to find the screaming meanies under the veil, fomenting, fermenting, and slithering throughout the garden of your outward zen projection.

    Yeah, yeah, you see it now? You’re clearly a bleach-skinned, fanged capitalist devil. Reading a little Sedgewick or some post-injection heroin-induced poetry from the hand of a homeless girl living on the streets of Portland might help the broadening of your sensitivity, and, please, this time try and feel the full emotive in Sedgewick’s discourse. Do not repress your tears of shame, you post-colonialist-constructed master of pain, you.

    Sell! Ha. Sell! You just don’t get it! No. Money changers sell things. Intentionalism! Sell! Unintentionally un-repressed! Comes to the light! Basic tenets of hegemonic evil! Counter your inner-self! Metaphysical ambiguity, and much more of it! You won’t last in academia otherwise.

  14. What causes judges and the like to fool themselves so? To convince themselves that what they are doing is “interpretation” and not the rewriting the text? Are they all truly so feeble-minded?

    :)

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