Wednesday, April 03, 2002

constitutional arguments
One of the classic pieces of scholarship on the second amendment is The Embarrassing Second Amendment, by Sanford Levinson, originally published in the Yale Law Review. It does a great job of weighing carefully whether the amendment allows either an individual's rights to gun ownership or a state's right to have a militia.

But, what really stands about the article is the methodology that Sanford Levinson uses to explore possible arguments under a constitutional provision:
My colleague Philip Bobbitt has, in his book Constitutional Fate, [30] spelled out six approaches -- or "modalities," as he terms them -- of constitutional argument. These approaches, he argues, comprise what might be termed our legal grammar. They are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on. The six are as follows:

1) textual argument -- appeals to the unadorned language of the text;

2) historical argument -- appeals to the historical background of the vision being considered, whether the history considered be general, such as background but clearly crucial events (such as the American Revolution). or specific appeals to the so-called intentions of framers;

3) structural argument -- analyses inferred from the particular structures established by the Constitution, including the tripartite division of the national government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order;

4) doctrinal argument -- emphasis on the implications of prior cases decided by the Supreme Court;

5) prudential argument -- emphasis on the consequences of adopting a proferred decision in any given case;

6) ethical argument -- reliance on the overall "ethos" of limited government as centrally constituting American political culture.

I want to frame my consideration of the Second Amendment within the first five of Bobbitt's categories; they are all richly present in consideration of the Amendment might mean. The sixth, which emphasizes the ethos of limited government, does not play a significant role in the debate of the Second Amendment.
The presentation that Sanford makes while showing how these arguments can be used provides a very helpful example for anyone wishing to debate an issue on constitutional grounds.

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