There are two ways to look at the rules. There is the spirit of the rules, the intentions of the rule makers, what they were trying to achieve. Then there is a narrow interpretation of the rules as written without any thought as to what it was the ruler makers were trying to create. The former option assumes the ability to discern the intent of the rule makers from resources often unrelated to the rules. The latter assumes the ruler makers were without error when they created the rules.
This should be how legal disputes are framed. One side argues intent, and the other side argues the letter. The reason is both sides acknowledge the primacy of the law, but disagree as the its meaning. Their dispute can and often does result in a compromise where the letter of the law side agrees to a change in the wording in order to clarify the meaning, such that both sides can agree on the implementation. The dispute is a form of improvement on the law and its consequences.
That should be the nature of the law in a civil modern society. Instead, the law in modern America is a battle where one side conjures imaginary constructs in which the rule makers could have created law and the other side rigidly defends the last set of imaginary constructs that were miraculously embedded into the law. One side argues for a living constitution, an imaginary framework that is always spawning new legal models, while the federalist side defends the law as written.
An example of the imaginary construct is this ruling by the Ninth Circuit which ruled 7-4 against George Young, a man who was twice denied an open carry permit. The court found that Hawaiian law predates and supersedes the Second Amendment. “Hawai‘i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago — nearly fifty years before it became a U.S. territory and more than a century before it became a state”.
In the opinion, they rely upon a philosophical claim that the present is the result of the long march of history. The pro-gun side only goes back to the 18th century and the writing of the constitution. This new theory goes back to medieval English law to argue that the default position has always been a strict regulation of weapons. They also acknowledge that they could go back even further, presumably to dawn of writing, to prove that history moves toward an unarmed society.
To the untrained mind, this sounds like a weird new form of animism, in which the intent of history is discerned by a specialized examination of the historical record. In this view, the law itself becomes meaningless. What matters is the esoteric debates among a specialized class of clerics. They compete with one another to conjure novel theories of history to determine public policy. The assumption is always that some animating force lies behind the movement of history.
More important, the people writing the law cease to matter. In the case of the Second Amendment, we know the intent of those who wrote it. Despite the crackpot claims about it applying only to militias, we know what the Founders meant. They wanted a society comprised on armed men willing to defend society from tyrants. Jefferson imagined a society that had regular rebellions in which tyrants were hanged as a way to keep the tree of liberty properly manured.
The intent in this mystical legal theory does not matter, as the people writing the laws are just flotsam on the tides of history. The Founders may have thought they were on the right side of history, but history clearly shows they were not, so history demands their intent be ignored. They fought the tides of history, with their crazy ideas about liberty, but they and their creations must be swept aside as the mighty river of humanity flows towards its inevitable destination.
Another example of this mystical view of history is the claim that the Second Amendment is the result of racism. You see, the concept of racism may not have existed in the 18th century, but it is a thread running through history. It is the invisible hand that guides the white race. Because everything white people have done can be motivated by this dark spirit force of racism, nothing white people have created can have authority, including their intent when writing laws.
In practice, this shamanistic legal theory is the overturning of law itself. If the letter and spirit of the law are products of history and history can only be understood by the shamans of the faith, then there is no law. The Soviet Union had a constitution that looks like something the modern democrats demand. In reality, everything in that document was interpreted by party theorists. The text was meaningless and so was the political theory behind it, because they existed to serve party goals.
Ironically, history tells us where this must end. The clever use of language by people bred to argue esoteric points of moral philosophy does not alter reality. The law in America is now a tyranny of the invisible hand of history, as interpreted by a shadowy class of clerics that never step into direct sunlight. The law is a conspiracy against the people, as corrupt as every other Western institution. Like politics or economics, the law is a tool. The hand that wields that tool is what matters.
At some point, the hand behind the present madness will become clear.
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