The Supreme Court Vs. The First Amendment Schenck v.
Steinberg's great cover depends for its force on the reality of what social psychologists call "cognitive maps. 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?
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 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. It is this last anomaly that I want to explore in this essay.
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, how to write an amendment to contract language casebooks, 14 and other scholarly legal publications.
As Professor Larue has recently written, "the second amendment is not taken seriously by most scholars. Neither, however, pays it the compliment of extended analysis. Both marginalize the Amendment by relegating it to footnotes; it becomes what a deconstructionist might call a "supplement" to the ostensibly "real" Constitution that is privileged by discussion in the text.
He asserts that the history of the Amendment "indicate[s] that the central concern of [its] framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy.
One will find extraordinarily little discussion about another one of the initial Bill of Rightsthe Third Amendment: The Third Amendment, to take the easiest case, is ignored because it is in fact of no current importance what whatsoever although it did, for obvious reasons, have importance at the time of the founding.
It has never, for a single instant, been viewed by any body of modern lawyers or groups of laity as highly relevant to their legal or political concerns.
For this reason, there is almost no case law on the Amendment. The Second Amendment, though, is radically different from these other pieces of constitutional text just mentioned, which all share the attribute of being basically irrelevant to any ongoing political struggles.
To grasp the difference, one might simply begin by noting that it is not at all unusual for the Second Amendment to show up in letters to the editors of newspapers and magazines.
The National Rifle Association, to name the most obvious example, cares deeply about the Amendment, and an apparently serious Senator of the United States averred that the right to keep and bear arms is the "right most valued by free men.
This reality of the political process reflects the fact that millions of Americans, even if or perhaps especially if they are not academics, can quote the Amendment and would disdain any presentation of the Bill of Rights that did not give it a place of pride.
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, 28 is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.
Thus the title of this essay — The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights such as most members of the ACLU.
Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.
It is not my style to offer "correct" or "incorrect" interpretations of the Constitution. Thus my general tendency to regard as wholly untenable any approach to the Constitution that describes itself as obviously correct and condemns its opposition as simply wrong holds for the Second Amendment as well.
In some contexts, this would lead me to label as tendentious the certainty of NRA advocates that the Amendment means precisely what they assert it does.
In this particular context — i. The Rhetorical Structures of the Right to Bear Arms My colleague Philip Bobbitt has, in his book Constitutional Fate, 30 spelled out six approaches — or "modalities," as he terms them — of constitutional argument. These approaches, he argues, comprise what might be termed our legal grammar.
They are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on. The six are as follows:Turnitin provides instructors with the tools to prevent plagiarism, engage students in the writing process, and provide personalized feedback.
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