Right! I may have missed it, but there are many uses of "ambiguous" in Wilkinson's paper, but nowhere did I find his explanation of why the Second Amendment was ambiguous.
It appears that Wilkinson uses repetition of this assertion as a means of reinforcing its validity -- a technique of propaganda known as the big lie. I suppose that we're now in for 20 years of papers claiming the Second Amendment is ambiguous by the same crowd that claimed it was a right of the states. Phil > The essence of Wilkinson's position on Heller is that the meaning of the > Second Amendment is ambiguous, but as I read his arguments that do not > actually support that conclusion (or at least, not clearly). Wilkinson > notes that there were arguments on both sides in Heller--but if the > existence of reasonable arguments on both sides of a question justified > deference to the political branches in constitutional cases, then deference > would be a rule with very few exceptions indeed. Nor can deference be > justified on the ground that different (reasonable) constitutional theories > call for different results on a constitutional question--again, this > principle would lead to almost universal deference in the kinds of > constitutional cases on which the Supreme Court pronounces. What would make > Wilkinson's argument plausible is a demonstration that the text of the > Second Amendment actually contains an irreducible ambiguity given the best > theory of its semantic content (or linguistic meaning). When we cannot > determine the original public meaning of the constitutional text, then one > might reasonably argument for a principle of construction that defers to the > political branches (Keith Whittington's theory of constitutional > construciton points in this direction). There may be other circumstances > that would trump the semantic content of the constitution (long-established > precedent or historical practice), but the holding of Heller (striking down > a total handgun ban) did not alter a deeply entrenched constituitonal > precedent or practice. > > My ultimate verdict on Wilkinson's essay is that it relies on a very serious > conceptual error--essentially equating ambiguity of linguistic meaning with > the existence of reasonable disagreement. > http://lsolum.typepad.com/legaltheory/2008/09/wilkinson-on-he.html > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Thursday, September 18, 2008 3:00 PM > To: [email protected] > Subject: Firearmsregprof Digest, Vol 58, Issue 2 > > > Today's Topics: > > 1. Oh, they are SOOOOO unhappy (Joseph E. Olson) > > ---------------------------------------------------------------------- > > Message: 1 > Date: Wed, 17 Sep 2008 18:09:41 -0500 > From: "Joseph E. Olson" <[EMAIL PROTECTED]> > Subject: Oh, they are SOOOOO unhappy > To: <[email protected]> > Message-ID: <[EMAIL PROTECTED]> > Content-Type: text/plain; charset=US-ASCII > > "Of Guns, Abortions, and the Unraveling Rule of Law" > > Virginia Law Review, Forthcoming > > J. HARVIE WILKINSON, United States Court of Appeals for the Fourth Circuit > Email: [EMAIL PROTECTED] > > Conservatives across the nation are celebrating. This past Term, in District > of Columbia v. Heller, the Supreme Court held for the first time in the > nation's history that the Second Amendment protects an individual right, > unrelated to military service, to keep and bear arms. > > I am unable to join in the jubilation. Heller represents a triumph for > conservative lawyers. But it also represents a failure - the Court's failure > to adhere to a conservative judicial methodology in reaching its decision. > In fact, Heller encourages Americans to do what conservative jurists warned > for years they should not do: bypass the ballot and seek to press their > political agenda in the courts. > > In this Essay, I compare Heller to another Supreme Court opinion, Roe v. > Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked > by conservatives, while many of those same critics are roundly praising > Heller. And yet the comparison is apt. In a number of important ways, the > Roe and Heller Courts are guilty of the same sins. > > > Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 > Hamline University School of Law f- 651-523-2236 > St. Paul, MN 55113-1235 c- 612-865-7956 > [EMAIL PROTECTED] > > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > > -- The Art of war is simple enough. Find out where your enemy is. Get at him as soon as you can. Strike at him as hard as you can and as often as you can, and keep moving on. -- Ulysses S. Grant _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
