this could be heaven or this could be hell...

Jim Dedman responds to my post responding to his post responding to my initial post about the Second Amendment. He says, "When the intent of the Second Amendment is clear and unambiguous, there is no reason to turn to contemporary views." If it were the case that the Second Amendment were "clear and unambiguous," then we wouldn't be having this discussion. The Circuit courts have disagreed on whether the Second Amendment bestows a personal right to bear arms. Insofar as reasonable people can disagree on the interpretation, the amendment is not "clear and unambiguous."

Jim then goes on to say, "Constitutional interpretation should be limited to the plain meaning of the terms used, reasonable interpretations thereof, and perhaps the supporting documents which indicate the Framers' intent." I wholeheartedly agree, however that still does not solve the problem. Social mores will creep in anyways. Why? Let's observe: (1) The "plain meaning of the terms used" certainly isn't enough, as even plain meanings are debatable (as is the case here). As I said before, a text cannot give itself meaning. What is plain to Judge X could be utterly ambiguous to Judge Z, depending on their perspective of the law and society. (2) Reasonable interpretations are not enough, since the Circuit courts are split on the meaning of the Second Amendment. I think it's safe to assume that Circuit court judges are reasonable people, espousing reasonable interpretations. (3) Supporting documents which indicate the Framers' intent are woefully inadequate, as those documents themselves must be interpreted, and hence suffer from the objections of (1) and (2) above. Furthermore, it is a well-known fact that different Framers signed onto certain provisions for different reasons, each with their own personal interpretation of that provision, their own hope for that provision, and their own vision of what American ideals should be. This happens all the time; think of Congressional voting, for example. It's the same principle.

Also, Jim latches on to this catch-phrase about how the Constitution shouldn't be changed by "popular perception" and "polls." I don't know what "polls" Jim is talking about here. I never mentioned anything remotely akin to polling. What I did talk about was the sociological landscape of living in everyday America in the year 2003. I certainly do not believe that constitutional interpretation should be achieved through polling American people! Jim would have us think otherwise. But he misses the point. It's not about polling or popular perception. It's about American values--those that are already so ingrained in us that our very perspective is tainted by them. My only suggestion is that judges, in making decisions facially based only on "the law," will inevitably take these values into account. And that's not such a bad thing.

Finally, I'd like to thank Jim Dedman for humoring me in this discussion. I look forward to more in the future.

you tear through them fields of cotton...

Added my review of Terry Zwigoff's caustic, but ultimately tender Bad Santa.

You can watch the trailer for Bad Santa here.

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.

my heart's like an open book...

And what am I doing for Thanksgiving? Aside from catching a movie here and there, working on that "35-45 page" paper. I think I'll take the 35.

Song to download right now for those of you who, like myself, are not fortunate enough to be going home for the Thanksgiving break: Motley Crue's "Home Sweet Home". One can dream...

happiness is a warm...

Interesting article about Second Amendment jurisprudence. The last Supreme Court case to deal squarely with the Second Amendment was the 1939 case of United States v. Miller. In that case, the Court's analysis suggested that the Second Amendment addressed the needs of organized militias, not individuals. Considering that half of America believes that the Second Amendment does, and more importantly, should protect an individual's right to bear arms, it seems that if the Court takes the case of Silveira v. Lockyer (a challenge to California's assault-weapons ban), its ruling would have serious political consequences either way.

Personally, I cannot see the Court ruling against the "individual right" interpretation. Our cultural environment has already embraced this presumption of the right to arm oneself; to take that away would be a radical departure from American social psychology. It is practically irrelevant that half of Americans believe that the Second Amendment is an antiquated law addressing the needs of militias. What matters is that the other half perceives the Second Amendment as an affirmative right. To that extent, taking away that perceived affirmative right would be a very sobering event in American culture. Things would actually have to change! Not so with a decision affirming the "individual right" rationale, as it would merely be an affirmation of the cultural status quo: those who don't want guns will not buy them; those who do want guns already own them (for the most part).

Granted, my justification isn't grounded in the law. But because there is such a dearth of case law on this issue, I think cultural mores can, should, and would play an important role in the Court's decision (should it decide to take the case).

it's a dirty word, Reich...say what you like!

Hating the hater--is that still fashionable? Given that these are the Unfashionable Observations, I just had to ask. At any rate, it's Professor Volokh's most controversial post, at least from those that I've read. I admire his courage and conviction. However, I wonder if most people would agree with him. If so, then what of our religious notions of redemption and forgiveness? Such airy, religio-moral considerations are usually forsaken when someone is actually convicted of something heinous (Timothy McVeigh, for example). This is a different case, as the guy was merely being initiated into a (heinous) group. Is that enough? Since I am a student in his class, I will refrain from commenting any further in the interest of self-preservation! Hee hee...

pretty, she is...

Today the DVD version of X2: X-Men United was released. I saw this movie twice in the theatres, and it was even better the second time. Entertainment Weekly hailed it as the best superhero movie ever. I'm not sure that I would go that far, but it's certainly the best action movie of the year (so far, anyway). Unless of course you count Kill Bill: Vol. 1 as action. But who does? That wasn't action; it was Tarantino.

At any rate, I gave X2 an A-, although sometimes I wonder whether an A would not have been more appropriate. The very first scene, with Nightcrawler in the White House, is to die for...

when will those clouds all disappear...

Added my review of Billy Ray's Shattered Glass. Clever guy, that Stephen Glass. Too clever, in fact.

You can watch the trailer for Shattered Glass here.

father says, 'bow your head like the good book says...'

Jim Dedman has a post passing judgment on this very website, all of which is welcome. He says he disagrees with my ratings of May, Heavenly Creatures, and Terminator 3. A brief comment on each of these movies:

May was a sincerely creepy movie up until the final 15 minutes. Jim Dedman points to Roger Ebert's four-star review of the movie, presumably to illustrate the fact that at least one other person besides himself has enjoyed it immensely. I must admit that Ebert's rating was the only reason I rented the movie to begin with. Indeed, I thought Angela Bettis' performance was right on the mark. However, I thought the final scene was simply too contrived and over-the-top. It had a Frankenstein-like quality to it that I felt to be simply misplaced in this day and age. No, I wasn't laughing at the final scene. But I was overcome by feelings of doubt, skepticism, and disbelief. Up until that scene, everything had a genuine, down-to-earth sense to it. I could imagine the events of the film actually happening in real life, and indeed I have come across people not so different from the character of May. It was this everydayness quality to the movie that made it seem so different from other horror movies. I felt the movie to be a sad, sometimes terrifying account of a lonely social outcast. All of this was destroyed in the final scene, which was so beyond my personal limits of belief, and was in such stark contrast to the rest of the movie, that my disappointment overwhelmed my judgment of the movie as a whole. (Even so, I gave it a B-, which is respectable!) The final scene makes sense from a purely abstract, intellectual perspective. That much is true. However, to have the horror shown to us in such a non-subtle, explicit way, was error.

Heavenly Creatures had some good themes, and interesting ideas to it. But the performances were sub-par, and I still cannot get over the scene in which we are exposed to the girls running and laughing ad nauseum. Plus, the scenes involving the clay figurines coming to life were (much like the final scene in May) a little too awkward for my tastes. There's much to be said for subtlety, and self-restraint.

T3 worked because it was imbued with a sense of self-awareness that is rarely seen in sequels (indeed, I think that's why sequels are generally inferior to the original films). T3 recognized that T2 was the best action movie of the 1990s, and it correctly presumed that attempting to match or surpass that genius would be an exercise in futility. So what to do? Don't take yourself seriously. This T3 did well. As I said in my review, T3 is like a Scream for the action genre. It managed to poke fun of itself all the while maintaining its "action movie" status. It was fun, action-packed, and humorous to boot.

Finally, Jim Dedman calls me out on the fact that I gave Old School--that sordid excuse for a film--an "F" without reviewing it. Well the fact is that everything below 28 Days Later (with the curious exception of The Hulk) does not have a review. Why? Because back then, I still had not discovered the fun of film criticism. But in response to Jim Dedman's defense of Old School, (much like Jim Dedman before me) I will simply reference Roger Ebert, who said it best in his one-star review of the film: "This is not a funny movie."

Oh, and just a peripheral point: I was re-reading some of my old reviews, including the ones Jim has referenced. I must say that the quality of my reviews has vastly improved since those first few attempts. For example, upon re-reading Heavenly Creatures, I must say that the style and writing of that piece is in marked contrast to my current, more refined, style. It takes time to find your voice in film criticism. That much I have discovered. That said, I implore you all to read some of my more recent reviews for a better sense of my film criticism skills.

with no lovin' in our souls, and no money in our coats...

Jim Dedman briefly comments on the topic of the paper I'm writing for my Media Law course. There are certainly a lot of legal theories implicated in the question of moral rights for artists in the United States, from copyright, trademarks, and unfair competition, to defamation, contracts, and free speech. I say "in the United States" only because most civil law countries (most notably, France) already recognize moral rights for artists of all kinds, including film directors. In the U.S., the Visual Artists Rights Act of 1990 (VARA) recognizes something akin to moral rights for artists, but only for "work[s] of visual art", a term defined in the Act to mean either a unique work or part of a limited edition (200 copies or fewer) that has been "signed and consecutively numbered by the author". Hence, film directors are explicitly excluded from the protections of VARA.

you better disappear...

That's my name. Don't wear it out.

I figured that most of the content on this website is worthy of my name. I'm proud of my film reviews, and I think it would benefit me greatly (and add credibility) to claim these unfashionable observations as my own. It's not like I was too secretive about my identity to begin with. Anyone who reads the Record, and who happens to read this site as well, can put two and two together. In fact, you can check out my latest review of Gus Van Sant's Elephant for the Record here. It's essentially the same as the review posted on this website. Other reviews that I've written for the Record appear here, here, and here.

Besides, what's in a name?

i ask for nothing but brilliance...

Added my review of Peter Weir's Master and Commander. Actually, it's really Russell Crowe's movie. Just a little secret.

i fell face down, didn't help my brain out...

Should directors have moral rights in their works? That is the topic of the paper I'm working on right now. There's a basic tension in this question about who "owns" a particular movie. For example, do I own my DVD copy of Tarantino's Pulp Fiction? Well I sure paid $20 for it. But does that mean I can alter, perhaps edit the work, for my own enjoyment? What if I bought a device that automatically muted the sound whenever a bad word was used? What if that same device knew to skip the really violent scenes?

I am of course referring to the ClearPlay case that is brewing right now. The ClearPlay software essentially turns all rated R- and PG-13 movies into PG-rated movies by skipping over the violence and nudity, and muting the bad words. So the software doesn't actually alter the DVD, because one could still see the original version of the DVD by not using the ClearPlay software. ClearPlay argues that it's more like an automatic remote control, whereby the MUTE and FAST-FORWARD buttons are used (automatically) in appropriate places throughout a particular movie.

The directors, of course, are livid. Why? Because the audience is watching something that they never intended to make (i.e., a PG-rated version of Pulp Fiction--can you imagine??), and yet the directors' names (and reputations) are already and at all times attached to the movie itself. Interesting dilemma.

one day i'll wish upon a star...

A lot of people ask me what my "favorite movie of all time" is. I stare back at them blankly. It's just such a momentous question, and yet it's asked with such offhandedness. Well I'm not about to rank my favorite movies of all time, but I will give an alphabetical list of 15 movies that immediately come to mind:

- 2001: A Space Odyssey (1968), Stanley Kubrick
- Blue Velvet (1986), David Lynch
- A Clockwork Orange (1971), Stanley Kubrick
- Diabolique (1955), Henri-Georges Clouzot
- Fargo (1996), Joel and Ethan Coen
- The Godfather: Part II (1974), Francis Ford Coppola
- The Graduate (1967), Mike Nichols
- It's a Wonderful Life (1946), Frank Capra
- Leaving Las Vegas (1995), Mike Figgis
- Natural Born Killers (1994), Oliver Stone
- Pyscho (1960), Alfred Hitchcock
- Raging Bull (1980), Martin Scorsese
- The Seventh Seal (1957), Ingmar Bergman
- Tokyo Story (1953), Yasujiro Ozu
- The Wizard of Oz (1939), Victor Fleming

All of these movies are superior films that deserve to be on anyone's top-10 list of all time. And it is no coincidence that Stanley Kubrick is the only director who appears twice. Although it was Hitchcock who first inspired me to take film seriously, it was Kubrick who dazzled me.

i can't claim innocence...

Today, I found out that this blog was mentioned in the November 2003 issue of the National Jurist as a "Blog[] to know and love." Well I must say I have no problem with that!

Also, on Thursday, HL Central will be sponsoring 1L-section reunion parties. This is one event I'll have to skip! At last, I feel like a true transfer!

In other news, I'm thinking of downgrading my NetFlix membership. I've watched 3 NetFlix movies in 3 months. There's just not enough time. Most of the movies I watch are in the theatre. Actually, I'm considering canceling (gasp!) my membership, since $13.95 for a maximum of 4 rentals per month doesn't seem like a bargain to me. Damn them.

Finally, the new Tori Amos album--Tales of a Librarian--is being released today. Apparently, it's a best-of deal with remastered, re-recorded songs, plus two new songs. For those of you who have not yet discovered the genius of Ms. Amos, this would make a good introductory album. Check it out...

they liberate your dreamscape...

Added my review of Gus Van Sant's latest movie, Elephant. That was probably the most difficult review I have had to write. I think the reason is because the film was so atmospheric, almost impressionistic, that it made it hard to come up with words to describe what was shown. Ugh. I've never spent so much time on one review.

it's such a shame that our friendship had to end...

Most popular movie reviews to date (by number of hits):

1. Lost in Translation
2. Bully
3. Swimming Pool
4. Kill Bill: Vol. 1
5. A Clockwork Orange

I'm really surprised at the persistence of a movie like Bully. It is only a matter of time before it surpasses even Ms. Coppola's gem.

"metaphysics"....what a dirty word!

I was just reading some of Nietzsche's Human, All Too Human, and this passage struck me as profoundly insightful:

Perhaps the scientific demonstration of the existence of any kind of metaphysical world is already so difficult that mankind will never again be free of a mistrust of it. And if one has a mistrust of metaphysics the results are by and large the same as if it had been directly refuted and one no longer had the right to believe in it.

What are the implications of this analysis? Nietzsche hones in on something that is absolutely brilliant: Metaphysics has imploded. In its insistence on exactitude, empirical examination, verifiability, and a general sense of honesty with itself, science--the very tool borne out of the metaphysical schema--has paradoxically shown metaphysics itself to be untenable! For how could anyone prove through scientific demonstration anything that metaphysicians have claimed (from God to infinity to ethics to consciousness)?

Indeed, this is very much akin to Christianity's implosion (for what is Christianity if not the most widespread metaphysical doctrine?). Christianity's insistence on repentance of sin (bringing the dark secrets out into the open), on honesty with the Lord above, has taught us this virtue of honesty in our everyday lives. And what result? Christianity cannot honestly be believed in our modern age! We seek proof, and yet only attain faithful speculation. That is simply not enough for our oh-so cynical, yet oh-so honest age! In short, Christianity's virtue is also the framework for its own demise.

i know where beauty lives...

Ten books that have changed my life, in order of personal impact:

1. Genesis. A value system is born. Our paradigmatic notions of good and evil are fashioned. The story of Abraham and Isaac haunts me to this day.

2. On the Genealogy of Morals, Nietzsche. Singlehandedly turned my moral landscape upside down. Shocking, terrifying, liberating.

3. Fear and Trembling, Kierkegaard. Subjectivity is discovered; objectivity is rendered utterly uninteresting.

4. A Portrait of the Artist as a Young Man, Joyce. The modern individual is born in Stephen Dedalus--such tragedy, such emotion, such truth.

5. King Lear, Shakespeare. Tragedy reaches a cosmic level. The only appropriate reaction is silence.

6. Notes from Underground, Dostoevsky. Caustic, irrational, self-deprecating, unapproachable. Life is exposed.

7. Nausea, Sartre. The world becomes unstable, detached, contingent. Anything is possible.

8. The Sound and the Fury, Faulkner. Separation between the characters and the reader is demolished. We experience the characters.

9. The Catcher in the Rye, Salinger. A treatise on alienation and self-discovery. The adolescent is defined.

10. Waiting for Godot, Beckett. Asks the ultimate existential question: What are we waiting for? We yet await an answer.

they're trapping angels by the potomac...

Added my review of the eye-opening documentary, Stevie. It's now out on DVD. Check it out, I implore you.

for her, for you, for me...

Added my review of Jon Favreau's Elf, a surprisingly good holiday flick.

the old familiar sting...

Added my review of the rather emotionally distant movie, Sylvia, about the life of Sylvia Plath.

everyone i know goes away in the end...

Today, I was in the audience of a lecture given by Trent Reznor's lawyer. He passingly mentioned Johnny Cash's cover of Nine Inch Nail's "Hurt." I was just listening to it, and yet again I am spooked out. Maybe it's because Cash is now dead. Maybe it's because "Hurt" represents the suicidal climax of NIN's masterpiece, The Downward Spiral. Who knows. At any rate, this song has shown itself to be one of the most haunting, lasting remnants of the 1990s.

Tori Amos once covered it in concert. Usually, when an artist covers a song, it becomes their own, in a sense. The artist imbues the covered song with her own interpretation, her own musical values, and her own vibrancy. (Think of Marilyn Manson's cover of the Eurythmics' "Sweet Dreams.") However, I have found that "Hurt" is one of the few songs out there that transcends the artist who performs it. It has never shown itself to be amenable to third-party constructions. It is itself--always. Scary...

i live in a box of paints...

Quoth my professor: “'Let’s just go to the beach'—that’s what they say at Stanford [Law School],” as she dismissed some SLS professor's argument regarding federal court removal. It's funny because it's true. I did that a couple of times. Ah...those were the days...

i'm just having thoughts...having thoughts...

Added my review of the Coen brothers' latest film, Intolerable Cruelty. Good fun.

if you're hurting, so am i!

Just got back to Cambridge. I'm totally wiped out. Plus, it's actually hot here right now. Ugh.

I got a chance to watch the new movie Sylvia with Gwyneth Paltrow, starring as the enigmatic Sylvia Plath. Although Paltrow remains one of my favorite actresses (she was absolutely brilliant in The Talented Mr. Ripley), her natural grace was not enough to sustain this gloomy movie about a gloomy person. Blah.