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A Recipe For Eternal Flame
Posted by tgirsch

Let’s mix a gun control debate with a semantic debate, and see what happens. At issue here: Whether a pro-gun ruling in Heller would recognize a “new” Constitutional right. I’m still slogging through the comments, but so far this one is among the best (after the fold):

From the beginning of organized tournament chess, the rules included this provision: when a player succeeds in advancing his pawn to the last rank, he can promote it to “a piece of his choice”. At an international tournament around 1910, a weird thing happened: White chose to promote his pawn to a BLACK Bishop, thus preventing Black from claiming a draw by stalemate. The tournament director was forced to acknowledge that the rules, as written, allowed such queer promotions. The right to promote your pawn to a piece of the opposite color was as unheard-of as, say, gay marriage. Who would ever want to do such a thing? But the rules HAD ALWAYS PERMITTED IT, said the judge. It was not a “new” right.

The romantic myth behind judicial review is that there are NO “new” rights. In this romantic myth, the right to gay marriage was always inherent in the constitution of Massachusetts, but was not noticed until our Supreme Judicial Court bothered to look, a couple of years ago. The whole POINT of legal (as opposed to political) arguments is to demonstrate that the rules ALWAYS SAID you have the right to promote your pawn to a piece of the opposite color, marry a person of the same sex, or own a handgun.

Whether or not you subscribe to this mythology will determine your terminology, with respect to “new” rights. If you think The Law is some immutable Platonic ideal which humans perceive only imperfectly, then judges merely find EXISTING rights when they examine The Law and say things like: “Well what do you know! People ALWAYS had the right to put blogs up on the World-Wide-Web. The right was always there, even if the internet wasn’t.”

If you’re not quite so romantic — if you think The Law is in fact a fuzzy man-made thing with no independent existence outside the cave — then of course a right not previously acknowledged is a “new” right, made up by judges on the spot.

Both points of view are defensible. The only laughable thing is the sort of inconsistency which I suspect many gun enthusiasts (and many gay-rights activists) to be guilty of: the inconsistency which says “MY right was always there and the courts finally acknowledged it; YOUR right was recently just made up by activist judges.”

Cross-posted at SayUncle.

March 24th, 2008 Legal Issues, Bloggin, Weekend Flame Bait | 2 comments