Originalism and Arms

[Scarberry, Mark]

I'm afraid that a thorough-going acceptance of Sean's point of view -- that we can't really be bound by what the persons who adopted authoritative language meant by that language -- would lead to a more literal application of his conclusion than he might have intended: We might indeed be "free to make [our] own arms choices." That is, we might need to take up arms of our own choice to preserve what we thought was the constitutional order. But thankfully there is no such need for another armed American revolution.
 
Mark Scarberry
Pepperdine

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sean Wilson
Sent: Wed 3/3/2010 3:15 PM
To: conlawprof at lists.ucla.edu
Subject: Originalism and Arms



(Eugene)

... a minor quibble. It's doubtful that a "scope question" is limited by the "historical meaning of arms," unless one is wanting from the start to imitate the culture of the forebears for some reason (see Colonial Williamsburg). But lacking an interest in drama or theatrics, one would rather say that, if the scope is to be limited by legal words at all, it should be limited only by whatever meaning "arms" has in the English language culture -- which is a family resemblance (and always has been). In other words, any sense that "arms" has in the lexicon is available to this generation to use, just as it would be if one were choosing to speak the word. The only linguistic limitation here is that the sense we choose is understandable to the original generation. They wouldn't have to agree with it, just understand the expression. That is all that language ever requires of its users. Once you begin using a word with a sense that has no
 understanding to others versed in the same language as yours, only then can you say that you are "cheating language." 

Here's what I want to say: there is no such thing as incorrect sense of "arms" in language where the same is cognizable to others in the language game -- i.e., where the sense is redeemable for cash value in the language marketplace. Rather, there are only good and bad PERFORMANCES of language. Think of it as art. What this view reduces to, I think, is saying that the sense we choose should have semantic integrity -- or, that it should be a good example of the aesthetic. This view allows both law (language) to exist while allowing for generations to "cheat" by picking cases of sound policy that interact with respectable linguistics. 

And let me say this. Those of you who want the arms protocol of the past to govern us today, as opposed to an arms protocol we select, really have to tell us WHY we should follow the forebears for reasons other than language. Because those reasons are flawed. Originalism can never come to you by means of language authority. It must always come, if at all, on its own terms.

The simple fact of the matter is that no person of this generation is bound by the arms choices of the past. They are free to make their own arms choices. 

Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org <http://seanwilson.org/> 
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html



     
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