Gregarius

Unread items (50)

Mangled ramblings

How many consecutive years make a ...

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Posted: July 4th, 2008, 11:25pm EDT

How many consecutive years make a tradition?

Overcoming Bias

Is Morality Preference?

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Posted: July 4th, 2008, 8:55pm EDT by Eliezer Yudkowsky

Followup to: Moral Complexities

In the dialogue "The Bedrock of Fairness", I intended Yancy to represent morality-as-raw-fact, Zaire to represent morality-as-raw-whim, and Xannon to be a particular kind of attempt at compromising between them. Neither Xannon, Yancy, or Zaire represent my own views - rather they are, in their disagreement, showing the problem that I am trying to solve. It is futile to present answers to which questions are lacking.

But characters have independent life in the minds of all readers; when I create a dialogue, I don't view my authorial intent as primary. Any good interpretation can be discussed. I meant Zaire to be asking for half the pie out of pure selfishness; many readers interpreted this as a genuine need... which is as interesting a discussion to have as any, though it's a different discussion.

With this in mind, I turn to Subhan and Obert, who shall try to answer yesterday's questions on behalf of their respective viewpoints.

Subhan makes the opening statement:

Subhan: "I defend this proposition: that there is no reason to talk about a 'morality' distinct from what people want."

Obert: "I challenge. Suppose someone comes to me and says, 'I want a slice of that pie you're holding.' It seems to me that they have just made a very different statement from 'It is right that I should get a slice of that pie'. I have no reason at all to doubt the former statement - to suppose that they are lying to me about their desires. But when it comes to the latter proposition, I have reason indeed to be skeptical. Do you say that these two statements mean the same thing?"

Subhan: "I suggest that when the pie-requester says to you, 'It is right for me to get some pie', this asserts that you want the pie-requester to get a slice."

Obert: "Why should I need to be told what I want?"

Subhan: "You take a needlessly restrictive view of wanting, Obert; I am not setting out to reduce humans to creatures of animal instinct. Your wants include those desires you label 'moral values', such as wanting the hungry to be fed -"

Obert: "And you see no distinction between my desire to feed the hungry, and my desire to eat all the delicious pie myself?"

Subhan: "No! They are both desires - backed by different emotions, perhaps, but both desires. To continue, the pie-requester hopes that you have a desire to feed the hungry, and so says, 'It is right that I should get a slice of this pie', to remind you of your own desire. We do not automatically know all the consequences of our own wants; we are not logically omniscient."

Obert: "This seems psychologically unrealistic - I don't think that's what goes through the mind of the person who says, 'I have a right to some pie'. In this latter case, if I deny them pie, they will feel indignant. If they are only trying to remind me of my own desires, why should they feel indignant?"

Subhan: "Because they didn't get any pie, so they're frustrated."

Obert: "Unrealistic! Indignation at moral transgressions has a psychological dimension that goes beyond struggling with a struck door."

Subhan: "Then consider the evolutionary psychology. The pie-requester's emotion of indignation would evolve as a display, first to remind you of the potential consequences of offending fellow tribe-members, and second, to remind any observing tribe-members of goals they may have to feed the hungry. By refusing to share, you would offend against a social norm - which is to say, a widely shared want."

Obert: "So you take refuge in social wants as the essence of morality? But people seem to see a difference between desire and morality, even in the quiet of their own minds. They say things like: 'I want X, but the right thing to do is Y... what shall I do?'"

Subhan: "So they experience a conflict between their want to eat pie, and their want to feed the hungry - which they know is also a want of society. It's not predetermined that the prosocial impulse will be victorious, but they are both impulses."

Obert: "And when, during WWII, a German hides Jews in their basement - against the wants of surrounding society - how then?"

Subhan: "People do not always define their in-group by looking at their next-door neighbors; they may conceive of their group as 'good Christians' or 'humanitarians'."

Obert: "I should sooner say that people choose their in-groups by looking for others who share their beliefs about morality - not that they construct their morality from their in-group."

Subhan: "Oh, really? I should not be surprised if that were experimentally testable - if so, how much do you want to bet?"

Obert: "That the Germans who hid Jews in their basements, chose who to call their people by looking at their beliefs about morality? Sure. I'd bet on that."

Subhan: "But in any case, even if a German resister has a desire to preserve life which is so strong as to go against their own perceived 'society', it is still their desire."

Obert: "Yet they would attribute to that desire, the same distinction they make between 'right' and 'want' - even when going against society. They might think to themselves, 'How dearly I wish I could stay out of this, and keep my family safe. But it is my duty to hide these Jews from the Nazis, and I must fulfill that duty.' There is an interesting moral question, as to whether it reveals greater heroism, to fulfill a duty eagerly, or to fulfill your duties when you are not eager. For myself I should just total up the lives saved, and call that their score. But I digress... The distinction between 'right' and 'want' is not explained by your distinction of socially shared and individual wants. The distinction between desire and duty seems to me a basic thing, which someone could experience floating alone in a spacesuit a thousand light-years from company."

Subhan: "Even if I were to grant this psychological distinction, perhaps that is simply a matter of emotional flavoring. Why should I not describe perceived duties as a differently flavored want?"

Obert: "Duties, and should-ness, seem to have a dimension that goes beyond our whims. If we want different pizza toppings today, we can order a different pizza without guilt; but we cannot choose to make murder a good thing."

Subhan: "Schopenhauer: 'A man can do as he wills, but not will as he wills.' You cannot decide to make salad taste better to you than cheeseburgers, and you cannot decide not to dislike murder. Furthermore, people do change, albeit rarely, those wants that you name 'values'; indeed they are easier to change than our food tastes."

Obert: "Ah! That is something I meant to ask you about. People sometimes change their morals; I would call this updating their beliefs about morality, but you would call it changing their wants. Why would anyone want to change their wants?"

Subhan: "Perhaps they simply find that their wants have changed; brains do change over time. Perhaps they have formed a verbal belief about what they want, which they have discovered to be mistaken. Perhaps society has changed, or their perception of society has changed. But really, in most cases you don't have to go that far, to explain apparent changes of morality."

Obert: "Oh?"

Subhan: "Let's say that someone begins by thinking that Communism is a good social system, has some arguments, and ends by believing that Communism is a bad social system. This does not mean that their ends have changed - they may simply have gotten a good look at the history of Russia, and decided that Communism is a poor means to the end of raising standards of living. I challenge you to find me a case of changing morality in which people change their terminal values, and not just their beliefs about which acts have which consequences."

Obert: "Someone begins by believing that God ordains against premarital sex; they find out there is no God; subsequently they approve of premarital sex. This, let us specify, is not because of fear of Hell; but because previously they believed that God had the power to ordain, or knowledge to tell them, what is right; in ceasing to believe in God, they updated their belief about what is right."

Subhan: "I am not responsible for straightening others' confusions; this one is merely in a general state of disarray around the 'God' concept."

Obert: "All right; suppose I get into a moral argument with a man from a society that practices female circumcision. I do not think our argument is about the consequences to the woman; the argument is about the morality of these consequences."

Subhan: "Perhaps the one falsely believes that women have no feelings -"

Obert: "Unrealistic, unrealistic! It is far more likely that the one hasn't really considered whether the woman has feelings, because he doesn't see any obligation to care. The happiness of women is not a terminal value to him. Thousands of years ago, most societies devalued consequences to women. They also had false beliefs about women, true - and false beliefs about men as well, for that matter - but nothing like the Victorian era's complex rationalizations for how paternalistic rules really benefited women. The Old Testament doesn't explain why it levies the death penalty for a woman wearing men's clothing. It certainly doesn't explain how this rule really benefits women after all. It's not the sort of argument it would have occurred to the authors to rationalize! They didn't care about the consequences to women."

Subhan: "So they wanted different things than you; what of it?"

Obert: "See, now that is exactly why I cannot accept your viewpoint. Somehow, societies went from Old Testament attitudes, to democracies with female suffrage. And this transition - however it occurred - was caused by people saying, 'What this society does to women is a great wrong!', not, 'I would personally prefer to treat women better.' That's not just a change in semantics - it's the difference between being obligated to stand and deliver a justification, versus being able to just say, 'Well, I prefer differently, end of discussion.' And who says that humankind has finished with its moral progress? You're yanking the ladder out from underneath a very important climb."

Subhan: "Let us suppose that the change of human societies over the last ten thousand years, has been accompanied by a change in terminal values -"

Obert: "You call this a supposition? Modern political debates turn around vastly different valuations of consequences than in ancient Greece!"

Subhan: "I am not so sure; human cognitive psychology has not had time to change evolutionarily over that period. Modern democracies tend to appeal to our empathy for those suffering; that empathy existed in ancient Greece as well, but it was invoked less often. In each single moment of argument, I doubt you would find modern politicians appealing to emotions that didn't exist in ancient Greece."

Obert: "I'm not saying that emotions have changed; I'm saying that beliefs about morality have changed. Empathy merely provides emotional depth to an argument that can be made on a purely logical level: 'If it's wrong to enslave you, if it's wrong to enslave your family and your friends, then how can it be right to enslave people who happen to be a different color? What difference does the color make?' If morality is just preference, then there's a very simple answer: 'There is no right or wrong, I just like my own family better.' You see the problem here?"

Subhan: "Logical fallacy: Appeal to consequences."

Obert: "I'm not appealing to consequences. I'm showing that when I reason about 'right' or 'wrong', I am reasoning about something that does not behave like 'want' and 'don't want'."

Subhan: "Oh? But I think that in reality, your rejection of morality-as-preference has a great deal to do with your fear of where the truth leads."

Obert: "Logical fallacy: Ad hominem."

Subhan: "Fair enough. Where were we?"

Obert: "If morality is preference, why would you want to change your wants to be more inclusive? Why would you want to change your wants at all?"

Subhan: "The answer to your first question probably has to do with a fairness instinct, I would suppose - a notion that the tribe should have the same rules for everyone."

Obert: "I don't think that's an instinct. I think that's a triumph of three thousand years of moral philosophy."

Subhan: "That could be tested."

Obert: "And my second question?"

Subhan: "Even if terminal values change, it doesn't mean that terminal values are stored on a great stone tablet outside humanity. Indeed, it would seem to argue against it! It just means that some of the events that go on in our brains, can change what we want."

Obert: "That's your concept of moral progress? That's your view of the last three thousand years? That's why we have free speech, democracy, mass street protests against wars, nonlethal weapons, no more slavery -"

Subhan: "If you wander on a random path, and you compare all past states to your present state, you will see continuous 'advancement' toward your present condition -"

Obert: "Wander on a random path?"

Subhan: "I'm just pointing out that saying, 'Look how much better things are now', when your criterion for 'better' is comparing past moral values to yours, does not establish any directional trend in human progress."

Obert: "Your strange beliefs about the nature of morality have destroyed your soul. I don't even believe in souls, and I'm saying that."

Subhan: "Look, depending on which arguments do, in fact, move us, you might be able to regard the process of changing terminal values as a directional progress. You might be able to show that the change had a consistent trend as we thought of more and more arguments. But that doesn't show that morality is something outside us. We could even - though this is psychologically unrealistic - choose to regard you as computing a converging approximation to your 'ideal wants', so that you would have meta-values that defined both your present value and the rules for updating them. But these would be your meta-values and your ideals and your computation, just as much as pepperoni is your own taste in pizza toppings. You may not know your real favorite ever pizza topping, until you've tasted many possible flavors."

Obert: "Leaving out what it is that you just compared to pizza toppings, I begin to be suspicious of the all-embracingness of your viewpoint. No matter what my mind does, you can simply call it a still-more-modified 'want'. I think that you are the one suffering from meta-level confusion, not I. Appealing to right is not the same as appealing to desire. Just because the appeal is judged inside my brain, doesn't mean that the appeal is not to something more than my desires. Why can't my brain compute duties as well as desires?"

Subhan: "What is the difference between duty and desire?"

Obert: "A duty is something you must do whether you want to or not."

Subhan: "Now you're just being incoherent. Your brain computes something it wants to do whether it wants to or not?"

Obert: "No, you are the one whose theory makes this incoherent. Which is why your theory ultimately fails to add up to morality."

Subhan: "I say again that you underestimate the power of mere wanting. And more: You accuse me of incoherence? You say that I suffer from meta-level confusion?"

Obert: "Er... yes?"

To be continued...

Schneier on Security

Friday Squid Blogging: Giant Squid Found off Santa Cruz Coast

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Posted: July 4th, 2008, 6:20pm EDT

It's twenty-five feet long, with tenticles the size of human legs....

Sinfest

2008-07-04: Sinfest

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Posted: July 4th, 2008, 6:00pm EDT by by me

Sinfest
Tatsuya Ishida

Cute Overload

THIS JUST IN: Boy wears Puppy Chow perfume

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Posted: July 4th, 2008, 5:46pm EDT by Meg

And is CHASED BY EIGHT HUNDRED PUPPEHS OMG

Via BoingBoing and Sender-Inner Anna A.

The Bobby Isosceles Fan Club

two of my more horrible business ideas

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Posted: July 4th, 2008, 5:45pm EDT by Bobby Isosceles

A wacky television comedy about how Darius the Great, Emperor of the Persian Empire, decides to reward famous Mon Calamari Admiral Ackbar with governorship of an important province. Hilarity ensues in: ITS SATRAP!

A “fast-food” style booth for receiving an instant dose of antibiotics to ward off gonorrhea/chlamidia. Name of the business: INSTANT DE-CLAP-ITATION

Cute Overload

I was told this would be banana-scented.

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Posted: July 4th, 2008, 5:14pm EDT by Meg

The Monkey Spa service has really gone downhill. [eye roll]
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Bathtime., originally uploaded by helping hands.

I distinctively smell lavender. [Bleeeeeeeaaaahhhh]

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Tastes like soap., originally uploaded by helping hands.
Ooh ooh, ah ah, Michelle Q.!

Schneier on Security

Time Bomb Neckties

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Posted: July 4th, 2008, 4:18pm EDT

Not recommended to wear at the airport....

Good Math, Bad Math

Petabyte Scale Data-Analysis and the Scientific Method

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Posted: July 4th, 2008, 4:05pm EDT

Once again, there's a silly article somewhere, and everyone hammers me with requests to write about it. It's frankly flattering that people see this sort of nonsense, and immediately think of asking me about it - you folks are going to give me a swelled head!

The article in question is a recent article from Wired magazine, titled "The End of Theory: The Data Deluge Makes the Scientific Method Obsolete".
Read the rest of this post... | Read the comments on this post...

Schneier on Security

Encrypting Disks

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Posted: July 4th, 2008, 3:10pm EDT

The UK is learning: The Scottish Ambulance Service confirmed today that a package containing contact information from its Paisley Emergency Medical Dispatch Centre (EMDC) has been lost by the courier, TNT, while in transit to one of its IT suppliers. The portable data disk contained a copy of records of 894,629 calls to the ambulance service's Paisley EMDC since February...

Penny-Arcade

News: This Video

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Posted: July 4th, 2008, 3:06pm EDT

Tycho : Substantially improved my day. The man turns one of crazy animatronic pizza house bands into some bizarre interpretive art form. Saw it here originally, but you should check out this site for the background.

The FAIL Blog

Product Promotion Fail

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Posted: July 4th, 2008, 3:01pm EDT by pizzaburger

fail owned pwnd pictures - product promotion fail, fail, restaurants, signs, humor, mcdonalds

Cute Overload

"Chickie" forgot the BBQ sauce

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Posted: July 4th, 2008, 2:52pm EDT by Meg

In a moment of panic, Chickie realizes he forgot to bring the BBQ sauce and only remembered sparklers.

Bad Chickie! Bad Chickie! Happy Fourth of July, Alison R.

I CAN HAS CHEEZBURGER

twister

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Posted: July 4th, 2008, 2:00pm EDT by ichctcf

lolcats, kittens and funny pictures - twister solo-edition

Balkinization

Scholars and political partisanship

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Posted: July 4th, 2008, 1:18pm EDT by Sandy Levinson

Perhaps some readers of Balkinization will be interested in aspects of an exchange that I recently had with Judge Richard Posner, whom I know slightly and admire greatly, even though we disagree about many, many things. He was reacting to a statement of mine on a listserv for academics especially interested in law and courts, in which I was trying to explain to one of the other participants why I was pleased by the result in Heller. I had written the following:

Why do I support the outcome (if not necessarily Scalia's opinion): First, as a lawyer, I think it is quite plausible to interpret even the Second Amendment, let alone the Ninth Amendment and, even more clearly, the Privileges or Immunities Clause, to protect the individual right of self-defense that Scalia evokes. But, let me confess, my principal reason for endorsing the decision is political. I believe that the commitment of Democratic Party elites (though I recognize it is not exclusively elites) to basically symbolic measures of "gun control" has been a disaster for that Party. Morris Fiorina argued at the APSA that Bill Clinton's insistence on the "assault weapons" ban in 1994 contributed directly to the loss of 6 Democratic seats in the House (including, of course, Speaker Tom Foley's). I think it is a powerful explanatory force in explaining the phenomenon of Reagan Democrats among the white male working class. (emphasis Posner’s).

Judge Posner emailed as follows: “Sandy, is this proper? It sounds as if you advocated a judicial result for an undisclosed partisan political reason. Doesn't that undermine the credibility of legal academic commentary on pending cases? Maybe I'm missing something. I knew in a vague way that you supported gun rights, but I assumed it was for reasons unrelated to loyalty to a political party.”

I responded as follows:

If someone asks me for my “best reading” of the Second Amendment, or any other part of the Constitution, then I would try to offer it without taking crass political considerations (or what Jack Balkin and I have elsewhere called ‘low politics,” because I suspect you agree with us that it is impossible to separate constitutional analysis from “high politics,” i.e.,some belief as to what is best for the country, all things considered)into account…. Perhaps my mistake was using the term “endorsing the decision.” It would have been more accurate had I said “my principalreason for being enthusiastic about the decision,” in the specific sense of its outcome. As a lawyer, I dislike both the Scalia and Stevens pinions, quite independent of any political views I have, and I think I can explain that without becoming crassly political.

My Yale piece[, The Embarrassing Second Amendment,] didn’t touch on “political considerations,” though I published a piece in Randy Kennedy’s journal, "Democratic Politics and Gun Control," 1 RECONSTRUCTION, No. 4, pp. 137-141 (Spring 1992), setting out my belief that Democrats were behaving stupidly in over-investing in “gun control” legislation, especially given that most of it wasn’t likely to be effective.... (It’s interesting to speculate why the notably unprincipled Clinton stood so firmly in behalf of the assault weapons ban; if he thought it was good politics, then this is simply one more piece of evidence that perhaps we have overrated his political sagacity.)
In one of my other replies, I mentioned the Newdow decision in 2004, where I both a) thought that the Supreme Court fabricated a “preposterous” standing doctrine to avoid affirming the clearly correct Ninth Circuit decision invalidating “under God” in the Pledge of Allegiance; and b) was immensely relieved that the Court had avoided a decision that would have created a tremendous backlash that would undoubtedly have helped Republicans and hurt Democrats. Judge Posner then made the following point:: “So in Newdow, you think the standing ground for dismissing the suit was preposterous but would you say that, or would you as a Democrat commend Stevens for his opinion?”

This is a very challenging question. For me this evokes the debate many years ago between Gerald Gunther and Alexander Bickel about “passive virtues” and betrayal of “judicial principles.” One can ask the empirical question whether Supreme Court justices do take political considerations into account when deciding whether or not to grant cert. in the first place or, as in Naim v. Naim, to shamelessly (and shamefully) dodge a case because of a (well-merited?) belief that it would be politically counterproductive, with regard to the possibility of enforcing Brown, to invalidate Virginia’s anti-miscegenation law in 1956 (as against a decade or so later, when it was an easy, unanimous decision to do so). Moreover, judges in multi-member courts clearly take “political considerations” (though presumably not of a “partisan” sort”) in deciding whether or not to craft opinions in a way to gain additional votes or, instead, to risk the likelihood issue a full-throated concurring opinion or a potentially unnecessary dissent. )

But, obviously, there is nothing “public” about most exercise of such political actions. And, even more to the point, no federal (or other) judge has, to my knowledge, ever said publicly, “I support X (where X is either a legal principle or a decision of the Supreme Court) because it will be good for the Republican (or Democratic) Party.” Consider Bush v. Gore. I personally believe that Judge Posner has written the best defense of what I regard as an indefensible decision, and there is certainly a “politics” to his defense, based on the perception, justified or not, that the country was on the brink of instability and that the Court’s intervention, though legally dubious—Posner has been absolutely caustic about the Court’s per curiam opinion as a piece of “legal craft”—is legitimate because it brought us back from that brink. Nowhere, of course, does he suggest that what justifies Bush v. Gore is that it was good for the Republican Party, however much many of us believe that such a view motivated one or more of the majority of the Supreme Court in that case.

Posner distinguishes sharply between interventions in public debates and “partisanship,” where one is presumably assessing the position that one takes on the basis of its service to the interests of a political party. Indeed, he is famous for his many books offering interventions in controversial issues of public policy ranging from sex to national security, in addition to his aforementioned defense of Bush v. Gore. One of the things I admire in Posner is that he follows ideas wherever they take him, without fear or favor. I am confident that he has been indifferent to the likely reception of his views by people who might have been relevant to determining, for example, whether he would be “promoted” to the Supreme Court. Criticizing Robert Bork’s jurisprudence was certainly not a good “career move” for someone who really cared about such things. Whether or not one agrees with Posner on specifics, I think he has instantiated a commitment to intellectual integrity that I assume most of us would like to emulate.

Still, what constraints, if any, should academics feel with regard to publicly acknowledging their partisan commitments? Posner writes:

I don't think [academics should engage in the public support of candidates]. Remember Weber's great essay on politics as a vocation. The public morality of a politician is different from private morality; he has to lie, forge unprincipled compromises, etc. (Of course a degree of that is required in private life as well, but less.) But if the law professor supports the politician publicly, his principles become corrupted. I am led by the episode to think that law professors, at least those in fields that generate partisan disputes, should be like federal judges, and forswear any party identification or political activity. Otherwise their arguments will be thought in bad faith.

I’m inclined to disagree, but I also remember feeling very strongly, when I was a graduate student over 40 years ago, that Henry Kissinger was more truly loyal to the political ambitions of his then-patron Nelson Rockefeller than to telling his students exactly what he thought about the great issues of the day, including, of course, the Vietnam War. I never had such concerns about, say, Samuel Huntington on the right or Stanley Hoffman and other critics of the Vietnam War on the left. They said what they meant and meant what they said.

So this means that I am not certain what my own views are (or, more the point, should be). I end with these questions: Is it enough to engage in “full disclosure” by admitting to one’s partisan preferences up front? We require professors to indicate who has funded their research and certainly don’t disqualify them from membership in the academy because they receive funds from highly “interested” sources. (Exxon has notably funded some academic critiques of punitive damages.) If that’s all right, then why doesn’t it suffice for me to say that there is a happy conjunction between what I consider to be my “best” views about constitutional meaning and the interests of the political party with which I identify? Is it better to keep this a secret (since Posner surely would agree that many (most?) academics will have partisan preferences).

Cute Overload

Blooooop!

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Posted: July 4th, 2008, 1:00pm EDT by Meg

A sweeeet collection of transparent undersea creatures is on display over at NationalGeographic.com, including this guy, the Roundbelly Cowfish aka Mr. Rule #38! (I am not making that name up)

Photograph by Chris Newbert/Minden Pictures. Wallpaper available here. Sent in by Debbie G. ;)

The FAIL Blog

Ferry Fail

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Posted: July 4th, 2008, 12:01pm EDT by pizzaburger

fail owned pwnd pictures - ferry fail, fail, failboat, humor

Schneier on Security

Hundreds of Thousands of Laptops Lost at U.S. Airports Annually

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Posted: July 4th, 2008, 10:20am EDT

This is a weird statistic: Some of the largest and medium-sized U.S. airports report close to 637,000 laptops lost each year, according to the Ponemon Institute survey released Monday. Laptops are most commonly lost at security checkpoints, according to the survey. Close to 10,278 laptops are reported lost every week at 36 of the largest U.S. airports, and 65 percent...

The Daily Kitten

Frankie

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Posted: July 4th, 2008, 10:07am EDT by The Kittenmaster

Location: Milwaukee, Wisconsin, USA

This is Frankie, he’s a seven week old Siamese rescued from a mink farm in Illinois… he will be looking for his forever home soon!

I CAN HAS CHEEZBURGER

HALP!

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Posted: July 4th, 2008, 10:00am EDT by ichctcf

lolcats, cats and funny pictures - HALP! Boobie trap got me

Balkinization

Is the Second Amendment a Rule or a Principle?

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Posted: July 4th, 2008, 9:50am EDT by JB

In my previous discussion of the Second Amendment I've assumed that the right to bear arms is a principle: that is, a norm that does not determine the scope of its extension and that can be balanced against other considerations, like public safety. It seems to me to be similar in this respect to the First Amendment's "freedom of speech," or the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

In a recent post, Larry Solum raises the intriguing possibility that the Second Amendment, unlike the First, does not state a principle (i.e.,the free speech principle) but a rule:

But the wording of the two clauses may be relevantly different. "Freedom of speech" does not specify content for a legal right: there is "freedom" and it concerns (is "of") speech. The Second Amendment is (arguably) different. The term is "right" and not freedom, and it is the "right to keep and bear arms" where the phrase "to keep and bear arms" seems to provide content for a legal rule--the rule identified by Justice Scalia in Heller. Of course, the rule is not fully specified--there is vagueness with respect to what counts as infringement, what the outer limits of the right are, what is an arm, what is keeping, what is bearing, etc. But unlike the freedom of speech, the Second Amendment may provide a legal rule rather than a principle in Balkin's sense.

If you wonder why anyone would care about this question (is it a rule or is it a principle?), it goes to how much room there is for regulating the right to keep and bear arms and to whether the text allows for exceptions.

I begin by noting that even if Larry is correct that the Second Amendment is a rule rather than a principle, it still does not get Scalia where he wants to go: he wants to show that the common law right of self-defense was constitutionalized in 1791.

Assume that there is a rule that we should not infringe "the right to keep and bear arms." But the original meaning of the text does not tell us which "right" we are talking about, even if we assume that right is exercised by keeping and bearing arms. There are at least three different "rights" that the text could refer to, as outlined in my previous post, a right to participate in organized militias, a right to participate in unorganized militias (to deter or overthrow tyrannical government), and a right to self-defense. We would have to look to enactment history to resolve the ambiguity in the word "right." Once again, as my previous post explained, the history is pretty clear that the framers and ratifiers were speaking about the first right, and probably also the second, but it is not at all clear that they were speaking about the third-- the common law right of self-defense. (The latter assumption-- that a common law right was being written into the Constitution is, as I've noted before, a product of the 19th century). So if Scalia is really committed to the original meaning of the text, he can't justify Heller on the basis of original meaning alone. He must engage in (permissible) constitutional construction.

In any case, I think there's a larger problem with calling the Second Amendment a rule rather than a principle. Larry's suggestion is that if we are presented with a rule (as opposed to a principle), each term in the rule must have a large core of fixed application surrounded by a narrower penumbra of potential vagueness. As Larry says "Once a rule has been interpreted and the facts have been found, then the application of the rule to the facts decides the issue to which it is relevant, except to the extent that vagueness is the rule requires the creation of some subsidiary legal norm to resolve the vagueness. In Hart's terms, `rules' have large cores and narrow penumbras."

Consider how this would work with the Second Amendment. Can we identify a core meaning and a penumbra for the terms "infringe," "and "arms" that explains the operation of the clause? Scalia suggests that banning machine guns (and other dangerous weapons) does not infringe the right to keep and bear arms. Most people would probably agree. If that is so, then it must be either because a total ban of a weapon is not an "infringement," or because machine guns are not "arms." But I would have thought that these are core examples of the words "infringe" and "arms," respectively. If we treat the Second Amendment as a rule, then it's hard to see how we can avoid this result, given the original meaning. (Remember the text says nothing about any distinction between especially dangerous and not especially dangerous arms. It just says "arms.").

If we stop thinking about the Second Amendment as a rule and start thinking about it as a principle, however, Scalia's conclusion isn't at all strange. Indeed, it makes perfect sense. If "the right to keep and bear arms" is a principle, it does not determine the scope of its own extension, and it can be balanced against other considerations, such as public safety.

Moreover, suppose that "the right to keep and bear arms" is a civic republican principle that involves not merely an individual right (in the modern liberal sense) but also common duties to defend the state through an organized or unorganized militia. In that case, arms that allow a single individual to inflict enormous damage do not further the purposes of the principle, because they do not encourage collective action.

(An aside: One of the weakest features of Scalia's opinion is that it largely disregards the civic republican origins of the right and treats it as a modern liberal individualist right. This is another example of Scalia's anachronistic use of history.)

Either way, treating the Second Amendment as a principle (not a rule) makes the most of sense of how we could (and should) enforce it today. And there is no evidence I have seen that it was intended to be a rule in Larry's sense. Indeed, as Scalia himself points out, the Second Amendment was declaratory of rights that Americans already believed they had. Declaratory statements about traditional rights are almost always statements of principle.

In general, when the Constitution refers to a "right" or a "freedom" or a "liberty," or a "privilege" or an "immunity," it is a good guess that it is usually enacting a principle, not a rule in Larry's sense of the word. In particular, I don't think that choice of the word "right" versus "freedom" signals choice of a rule rather than a principle. (Consider once again the example of the Fourth Amendment in this regard, or the rights of petition or assembly in the First Amendment, or the rights referred to in the Ninth Amendment. It's hard to argue that all of these state rules rather than principles simply because they use the term "right" rather than "freedom.").

Whatever

Zoe’s Tale Wallpaper

mark

Posted: July 4th, 2008, 9:39am EDT by John Scalzi

The folks at Tor.com are offering up a free computer wallpaper for folks, featuring John Harris’ art for Zoe’s Tale. Yes, now you can revel in the orange and green-ness of my book’s cover, right on your computer! It’s starship explody-licious. Get it in the next week, because that’s just how long it’ll be up.

The Tor.com folks have also announced their target launch date: July 20, 2008. If all goes according to plan, there will be cool stuff there then (if it doesn’t go to plan, there will be cool stuff there a couple days later). And if you suspect that I might be part of that launch, you would be suspecting correctly. Just how I shall not reveal now. But I think you will like it.

Astronomy Picture of the Day RSS Feed

SN 1006 Supernova Remnant

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Posted: July 4th, 2008, 9:06am EDT

SN 1006 Supernova Remnant A new star, likely the brightest supernova in recorded human history, lit up planet Earth's sky in the year 1006 AD. The expanding debris cloud from the stellar explosion, found in the southerly constellation of Lupus, still puts on a cosmic light show across the electromagnetic spectrum. In fact, this composite view includes X-ray data in blue from the Chandra Observatory, optical data in yellowish hues, and radio image data in red. Now known as the SN 1006 supernova remnant, the debris cloud appears to be about 60 light-years across and is understood to represent the remains of a white dwarf star. Part of a binary star system, the compact white dwarf gradually captured material from its companion star. The buildup in mass finally triggered a thermonuclear explosion that destroyed the dwarf star. Because the distance to the supernova remnant is about 7,000 light-years, that explosion actually happened 7,000 years before the light reached Earth in 1006. Shockwaves in the remnant accelerate particles to extreme energies and are thought to be a source of the mysterious cosmic rays.

Carl Zimmer's Science Tattoo Emporium

Blue Stem

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Posted: July 4th, 2008, 9:00am EDT by Carl Zimmer

Laura writes This is a tattoo of the prairie grass Andropogon gerardii, or big blue stem. My masters research involved land disturbance, mycorrhizae and soil properties associated with this & two other common prairie plants. Also notice that this tattoo...

Cute Overload

Ommmmmmmmm mah gawd

mark

Posted: July 4th, 2008, 7:14am EDT by Not That Mike The Other Mike

I can see you have traveled far, young seeker. Rest awhile at my feet and I shall assist you on your path to Enlightenment. In the high mountains, beyond the trees, beyond even the clouds, there is a cave. Many men have perished looking for it -- many more have turned back.

And what is in this cave that should drive men so? A creature of radiance, or so the legends say. Joy flows forth from it, bathing the soul of all who gaze into its eyes. To stand in its presence, it is said, is to know all that is hidden, and grasp the true harmonies of the universe. The mountain people call him Azla'ach Flazim -- The Hamster of Ultimate Happiness.

Whoa, Missy P.

The FAIL Blog

Packaging Fail

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Posted: July 4th, 2008, 7:01am EDT by pizzaburger

fail owned pwnd pictures - packaging fail, fail, diet fail, humor

I CAN HAS CHEEZBURGER

i tink i can

mark

Posted: July 4th, 2008, 6:00am EDT by ichctcf

lolcats, kittens and funny pictures - i tink i can i tink i can i tink i can

Overcoming Bias

Rah My Country

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Posted: July 4th, 2008, 6:00am EDT by Robin Hanson

Today is the revered USA "Approval to Print a Declaration of Independence Day":
The Declaration of Independence was not signed [July 4] by the 56 persons whose signatures would eventually adorn it. Perhaps no one signed it that

Gregarius

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