Posts Tagged ‘law’

So if she weighs the same as a duck…

February 1, 2010

She does look very calm about it. From yesterday’s Boston Globe, here’s an article by economist Peter Leeson arguing that medieval trial by ordeal was really not so bad. The article is notable for its complete lack of anything resembling evidence, but there is a little—very little, but more than none—in Leeson’s academic paper here. I think the most interesting bit of that is the contention that men and women were treated differently: men, typically with lower body fat and hence more likely to sink when tossed in a pond, were more likely than women to be given an ordeal by cold water, in which sinking was interpreted innocence.

The basic theory (tarted up with equations in the paper) is that (i) people who actually believed in the efficacy of ordeals would submit to them only if they were indeed innocent, confessing or settling or running away if they were guilty, and that (ii) the priests who ran the ordeal process would rig the results in favor of the innocent accused. I’m not sure the first point would apply to capital cases, much more common then than now, given that a guilty person, presumably already condemned in God’s eyes, would have little reason not take his chances on the ordeal. And as for the second point, well, I am not convinced that medieval priests were universally known even then for their honesty and incorruptibility.

A couple of years ago Leeson wrote a book about economics and pirate democracy that I keep meaning to read. I hope it’s a bit more convincing than this…

A Constitutional Right to Shoot People?

July 17, 2008

At the Volokh Conspiracy, Eugene Volokh and Orin Kerr are discussing whether DC v. Heller establishes a “Constitutional Right to Self-Defense.” I’m with Professor Kerr on this one: it doesn’t. My opinion is of course completely uninformed, but when the experts disagree, why shouldn’t the rest of us chime in?

In the Court’s opinion Justice Scalia certainly does talk at length about self-defense. But I don’t think he quite gets to the point of saying there is a Constitutional right to self-defense. I see it coming up in two different contexts, in two different sets of arguments.

The first is in Scalia’s discussion of the phrase “keep and bear arms,” and whether it had an exclusively military meaning, “to serve in an army or militia” or whatnot. Here Scalia seems to be arguing along these lines:

  • There are instances of the phrase “bear arms” explicitly meaning “have weapons for self-defense.”
  • “Self-defense” is not “serving in the military.”
  • Hence “bear arms” does not necessarily mean “to serve in the military.”

Now I disagree with this on a couple of counts, but that’s not important now; my point is that it has nothing to do with any Constitutional right to self-defense. The rest of Scalia’s self-defense references are more relevant. He cites a number of mostly 19th-century sources interpreting the second amendment as “protect[ing] an individuals right to use arms for self-defense.” And his opinion’s first holding is,

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

I can certainly see how someone might find a “Constitutional right to self-defense” there. But I don’t think that’s right. Scalia isn’t justifying a right to self-defense, he’s assuming one. Applying something like his own logic re the Prefatory Clause, I interpret the holding as meaning, “The 2A protects a right to use firearms for traditionally lawful purposes,” with the note that one of those traditionally lawful purposes is self-defense.

That may seem silly, but consider another “traditionally lawful purpose,” hunting. Much of the older precedent Scalia cites re self-defense applies equally well to hunting, but I don’t see anyone attempting to find a Constitutional right to hunt in his opinion. There are all sorts of laws restricting hunting, which doubtless annoy hunters, but which as far as I know are Constitutionally uncontroversial. One could argue that DC could put more restrictions on the storage of .30-06s than on handguns, elk-hunting not being a lawful purpose in the city itself.

And I don’t see much in Scalia’s opinion about what exactly a right to self-defense might entail. Presumably it would include shooting someone breaking into your home. But what else? Will someone interpret Heller as guaranteeing a right to concealed carry, so you can shoot muggers on the street? (I’m sure someone will, actually.) Can you shoot an attacker if running away is an option? How much discretion do states an municipalities have to regulate the right? In Texas it’s apparently acceptable to shoot suspicious-looking people in your neighbor’s yard; I doubt that would fly in Massachusetts. If there is a Constitutional right, it’s not very well-codified. (See also Jack Balkin for much better-informed commentary on the subject.)

Now if a self-defense case actually reached the Supreme Court I’m fairly sure Scalia would find a right to it, based on tradition and common law and precedent and other extra-Constitutional sources—not every right is a Constitutional right! He might even find one in the penumbras he generally so despises (it wouldn’t be the first time…). But he hasn’t quite done that yet.

Suing Bible publishers for bad translations

July 12, 2008

Via Language Log and Religion Clause and a whole lot of other places: the story of Bradley Fowler, who is suing Bible publishers Thomas Nelson and Zondervan “on the grounds of malicious negligence, breach of duty, duty of care, intentional torts, malice, strict liability, and violating [his] civil right according to the U.S. Constitution, 14th amendment.” Specifically, he objects to the use of the word “homosexual” in 1 Corinthians 6:9 and related passages, and appears to think the publishers are engaged in some sort of conspiracy to change the translation capriciously, I suppose with the intent of causing him further confusion and heartbreak.

The post at Language Log has oodles of great stuff, both in the body and in the comments. Religion Clause has links to the hand-written complaints. For rather less useful commentary, here‘s a discussion of the suit in the context of an anti-Barack Obama screed (really!). [My own commentary will also be rather less useful than LL and RC, but in a different way.]

In no sane world could this case have any merit. I would say “it should be laughed out of court,” but really it’s more sad than funny. Mr. Fowler is clearly a disturbed and desperate individual. He might benefit more from anti-depressants than from frivolous lawsuits.

Fowler’s complaints are seriously confused and confusing. His notion of what publishers do seems somewhat muddled. From the Zondervan complaint:

Zondervan Publishing House knowingly implemented the term — homosexual — to its 1982 and 1987 new edition Bibles. Yet elected to revise that text and remove the text from the 1994 editions. Ironically, the 1989 edition didn’t include the term either. Still, Zondervan Publishing neglected to inform the public of their changes.

You get the idea. Earlier in the complaint he cites the New King James version, but the 1982/1987/1989/1994 “editions” he quotes are actually the NIV, the Amplified Bible, the NRSV (you can find it here), and the King James.

As far as the translation itself, the Greek words in question are μαλακοι and αρσενοκοιται, malakoi and arsenkoitai, the “soft” and the “man-bedders.” No one is really sure what Paul meant by the terms—well, plenty of people are very sure, but they’re sure of different things—so the translation is necessarily tricky. “Arsenokoitai” is particularly interesting, as this passage is its first known use (and for all I know all the other uses are quoting Paul). He may have been referring to Leviticus 18:22, literally something like “Thou shalt not lie with a man in beds of woman; it is an abomination.” Or not. See the comments at the Language Log post for much better-informed commentary.

My own ill-informed opinion, for what it’s worth, is that “homosexuals” is a lousy translation, as it carries anachronistic cultural connotations. I prefer the King James’ “abusers of themselves with mankind” just for its pungency. But “homosexuals” isn’t obviously completely wrong either. I’m pretty certain Paul would not have approved of homosexuality as we understand it, either as a sexual preference, or as a “lifestyle,” or simply in terms of sex acts themselves. He only barely tolerated sex at all, and then only in marriage.

In any case I doubt this is the most egregious mistranslation in the Bible. Nor is it the most portentous—my nomination for that would be Isaiah 7:14. I think that one goes back to the Septuagint, whose translators would be difficult to sue.

Linguists on the Second Amendment

January 17, 2008

Here‘s an amicus brief in DC v Heller from a few linguists (via Language Log). An few excepts:

…On its face, the language of the Amendment tells us that the reason why the right of the people to keep and bear arms shall not be infringed is because a well regulated militia is necessary to the security of a free State. The purpose of the Second Amendment, therefore, is to perpetuate “a well regulated Militia.”

…In the case of the Second Amendment, we have shown that the absolute clause affirmatively states the cause or reason for the Second Amendment’s existence. That significantly affects the meaning of the main clause, for it gives us every reason to think that this Amendment never would have been adopted but for the fact that the Framers believed the absolute clause’s statement that a well regulated militia is necessary to the security of a free state. And if we know why a provision is adopted, we surely know something about the intended scope of that provision. The Second Amendment’s absolute construction was adopted as an integral part of the Amendment, and it cannot be “omitted” or wished away by trying to show that it no longer is true.

…The term “bear arms” is an idiom that means to serve as a soldier, do military service, fight. To “bear arms against” means “to be engaged in hostilities with.” The word “arms” itself has an overwhelmingly military meaning, referring to weapons of offense or armor of defense. In every instance we have found where the term “bear arms” (or “bearing arms” or “bear arms against”) is employed, without any additional modifying language attached, the term unquestionably is used in its idiomatic military sense.

Now I really can’t evaluate this; I’ve seen the exact opposite arguments made, both about the import of the first clause and about the meaning of the idiom “keep and bear arms.” I do tend to think that a 39-page paper on a single sentence is at least a potential sign of over-analysis (and of course this is far from the only, or the longest, such.)

But certainly that first clause is there for a reason; it’s a statement about an important assumption the framers made. The framers did not trust standing armies, and specifically tried to make it a little difficult for the young United States to have one (see the army clause in article I, section 8 of the Constitution: army appropriations can be for no longer than two years. There is no such restriction on the navy). Without a standing army, a well-regulated militia was very much necessary for the security of the new free state.

We no longer think this. We’ve had a large standing army since the Civil War. We no longer need to keep guns over our hearths to rise in defense of our beloved homeland. Much as we all enjoyed Red Dawn, that’s just not going to happen.

So what does that mean for The Second Amendment Today? How do you interpret something whose explicitly stated purpose is no longer meaningful? I’ve no idea. I suppose it depends on theories of legal interpretation, a subject that makes me queasy(*). I think either side can be argued equally reasonably. Or unreasonably.

In practice, of course, the interpretative debate boils down to endless political maneuvering and litigation. All these linguistic and historical analyses, fascinating and perceptive though they may be, are virtually irrelevant in themselves; they’re just so much grist for the political and legal mills. Debates like this are won, insofar as they are ever resolved at all, not by academic argument but by winning elections and appointing sympathetic judges.

Oh well, at least it’s entertaining.

(*) I’m pretty cynical about anything that depends on a particular interpretive theory. It’s too easy to choose a theory, or bend an existing theory, to get whatever result you want. No slight on our nation’s Judges/Justices and politicians and whatnot, it’s just human nature.

DOJ annoys EVERYONE in gun control case

January 14, 2008

The Department of Justice’s amicus brief in DC v. Heller, as I understand it (and IANAL), maintains that the Second Amendment secures an individual right, while also maintaining that said right is not absolute; and recommends the case be remanded to the lower court.  That is, the DOJ likes the “conservative” individual-rights interpretation of the second amendment, but doesn’t like absolute limits on the government’s authority.  I think that the DOJ, or at least Paul Clement, objects not to the result (overturning DC’s gun ban) but to the reasoning, and thinks the gun ban would fail under the lower level of scrutiny they recommend (see here). But I really don’t know, and that is not the point of the brief, which as I read it is more concerned with what precedents the case will set.

It pleases me that this rather reasonable position (I’m not saying whether I agree with it, just that it’s reasonable, much as it surprises me to say that any part of the current administration can be reasonable) has so angered the pro-gun people. (But note the NRA’s response is more measured.)

I’m now curious about i) what the liberals will say (if anything; this may be too moderate to inspire any entertaining liberal outrage), and ii) what effect this will have on Republican presidential politics.  Will all the candidates have to condemn this brief, with their fingers crossed behind their backs?