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Monday, June 30, 2008

One Last Random Association and Then "See Ya"

A British scholar, Emmanuel Voyiakis, posted on SSRN a response (Contracts, Promises, and the Demands of Moral Agency (CURRENT LEGAL ISSUES: LAW & PHILOSOPHY, Freeman & Harrison, eds., Oxford University Press, 2007)) to Seana Shiffrin's The Divergence of Promise and Contract (HT Larry Solum).  I have a piece, also addressing Professor Shiffrin's article, coming out later this summer in the Canadian Journal of Law and Jurisprudence.  So I dropped Professor Voyiakis a note and we've been e-mailing back and forth.

The question is whether those aspects of contract law that seem to uphold efficiency over promise impinge upon the flourishing of moral agency.  Both Professors Voyiakis and Shiffrin are more articulate than I am on the subject, and I recommend them both.

In our correspondence, I used a phrase that seemed odd, on reflection, just after the decision in D.C. v. Heller.  A point I've made about contract law as well as corporate governance law is that the law gives us myriad tools we may employ instrumentally and opportunistically.  But the moral choice to act (or not act) on a legal right precedes the law, at least in the voluntary domain in which I traffic.  What I said was:  "just because you have a weapon doesn't mean you have to use it."

Which brings me to guns.  I want to put aside the question of constitutional interpretation, and consider, apropos of my last post, causal explanation and the right to bear arms.  If Thomas Haskell is right, since 1787, there has been a major shift in how we make sense of the world, from a world then in which the individual's perception of one's own causal potency predominated, to one now in which we are buffeted by (nay, even victims of) all sort of independent causes in the world that are not us.  It seems to me we live in a world of more generalized fear, and that impels both the pro-gun and the anti-gun sides in a way that is just different from ever-present but far more individualized dangers that existed in 1787.  "Just because you have a weapon doesn't mean you have to use it."  Among civilized people (as Justice Scalia notes, for example, in England, that meant Protestants) bearing arms didn't mean you had to use them, at least in connection with other civilized people, you knew the other civilized people, and you could fairly expect that they wouldn't use them to shoot you!  In a world of remote explanatory cause, it's reasonable to assume that the existence of guns means they will be used, because our explanations of the relationship between guns and events no longer depend on the individual causal potency of ourselves and the people we know.

Justice Scalia says:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.

If you were creating a new nation today, would you include a right to keep and bear arms?  (I would imagine that's an active issue among the comparative constitutional scholars.) That would at least take the issue out of interpretation, and highlight the underlying question:  is the nature of what we fear different now?

* * *

Well, to paraphrase Ray Magliozzi (of my Fair City), you've just wasted another perfectly good month reading these posts.  See you next year (assuming I haven't worn out the courtesy extended to me by the proprietors!).  And even though Dan Markel wants to line the classroom walls at Florida State with lead to keep out the internet when he sees me write it, "This is PrawfsBlawg."  (Sorry, Ray.)

Posted by Jeff Lipshaw on June 30, 2008 at 06:43 AM in Blogging, Constitutional thoughts | Permalink


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I certainly believe the nature of what we fear today is different from what the founding fathers feared. The notion of having to take up arms against one's government is very alien to most Americans. We're much more afraid of being mugged or raped than of being oppressed by our government. Plus, an armed revolution against our government isn't even possible; handguns and limited assault rifles are no match for M1 tanks and Apache helicopters.

If I were drafting a new Constitution, there would be no doubt that I would include the right to have longarms such as rifles and shotguns. The only way I would exclude handguns is if this were some new magical nation and there weren't already millions of handguns in circulation. For the same reason I oppose banning handguns; there are already so many out there that criminals will still get them, while honest citizens won't have them to protect themselves.

Posted by: Justinian Lane | Jun 30, 2008 10:22:38 AM

Don't blog like my brother!

Posted by: tom | Jun 30, 2008 8:45:35 AM

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