it goes something like this...

I really don't do this often, because I think responding to others is a complete waste of my time. Nothing is ever gained, because both parties are always already set in their ways. But because MR. JIM DEDMAN was so unnecessarily personal in his post attacking my Second Amendment post, I will respond, briefly.

MR. DEDMAN rails like a drunken sailor against my suggestion that social mores can, should, and would play an important role in the Supreme Court's clarification of the Second Amendment. In case it wasn't absolutely clear to MR. DEDMAN, I'm an avowed legal realist. I believe that judges respond primarily to the underlying facts of the cases, rather than to legal rules and reasons. The recent Michigan affirmative action cases, and the recent homosexual sodomy case, are paradigmatic examples of this. The law is broad enough to go both ways on each issue; that being so, other considerations (such as culture, perspective) will necessarily inform a particular judge's decision. Of course, such exterior considerations would never make it into the opinion, because it's all supposed to be about "the law." But that doesn't mean that the exterior considerations were rendered moot.

Because there has been no Supreme Court case law on the Second Amendment since 1939, it would be folly to ignore the de facto laws that have crept into the American consciousness since that time. Our society has already accepted that people have some (perhaps implied) individual right to have a gun (much like its acknowledgement of homosexuality as a fact of society). And no, the Supreme Court Justices are not immune to such sociological paradigms. To suggest otherwise would be akin to religious fanaticism. These people are not superhuman. They're just like you and me, subject to the whims of the larger social consciousness. Yes, even Scalia.

MR. DEDMAN remains very idealistic in his position that a kind of originalism can, and should, dictate constitutional interpretation. Unfortunately, whatever the Framers thought of a particular amendment, even their thoughts on the matter are subject to inconsistent interpretations. When anyone reads anything, they are already bringing a frame of context and analysis into the text. And what is that frame of context and analysis? Their own perspectives. Our knowledge of anything--including the Framers' intent--is always constrained by our own perspectives. Anything we do know, we know from a certain perspective, and that perspective depends on our physiological constitution, our skills of inquiring and interpreting, our culture, and our language.

My point is that it is nearly impossible to separate the particular individual (imbued with his sense of culture and his own perspective) from that individual's analysis of a certain provision. The notion that the law has a "fixed meaning" baffles me. (I cannot think of a more metaphysical, more incoherent proposition!) Even if it's the case that the meaning is somehow "fixed," those of us who read and interpret the law are not fixed entities with identical perspectives. Ultimately, it is the people, and not the text, who will decide the meaning. A text cannot give itself meaning. I reject MR. DEDMAN's notion of the law's existence "in itself" (as Kant would likely have put it), independent of our knowing faculties, or of our perspectives in interpreting that law. The fact that the law has to be interpreted in the first place proves my point.

MR. DEDMAN also points out that if society wanted to change the meaning of a particular constitutional provision, "then the amendment process is there." I see no difference between judicial activism in response to social consciousness, and having an amendment to address those same social mores. Practically speaking, the same result is attained.

Finally, I am dumbfounded by MR. DEDMAN's suggestion that the Fifth Circuit's opinion in United States v. Emerson would have better informed my previous post. The only thing that case does is confirm that the circuits are in conflict in their interpretation of the Second Amendment. Yes, we knew that already; we wouldn't be having this discussion in the first place if that were not already utterly obvious.

Note: I have no personal knowledge of whether MR. JIM DEDMAN drinks, sails, or owns an eye-patch. Any suggestion otherwise in this post should be promptly disregarded.