“…But I know it when I see it.”

     Does anyone remember that little phrase? It became notorious in the early Seventies, after the Supreme Court issued a ruling in a pornography case. The original speaker was Associate Justice Potter Stewart. The stimulus, of course, was the question “What is pornography?”

     The Court did not issue a definition. Instead, the ruling centered on a subjective interpretation of the intentions behind the item to be judged: “Does it possess serious literary, artistic, political, or scientific value?” That came to be called the “SLAPS test.” It got the Court into the practice of screening movies for those things, to determine whether they were “pornography” and therefore could be banned. Justice Stewart stuck to his personal non-definition definition.

     Today, laws against porn are ignored nearly everywhere. They’re still on the books in most places, as are the laws against adultery, fornication, and sodomy, but no jurisdiction to my knowledge attempts to enforce them. Yea verily, not even the U.S. Postal Service, which at one point was the focus of the controversy.

     Today, quite a lot of people are saying “but I know it when I see it” about something quite different. Herewith, a brief video from Langley Outdoors Academy, in which master of ceremonies Braden focuses on a fascinating hearing in the United States Senate. As is so often the case, one interlocutor is Senator John Kennedy of Louisiana:

     I hope you watched it, Gentle Reader. Especially if you’re passionate about the right to keep and bear arms, as am I. Note all the following high points:

• The young lawyer testifying to the Senate committee as an “expert” on assault weapons, the subject of a proposed ban in Illinois, could not say what an assault weapon is.
• She also admitted that she did not write the amicus curiae brief in question. The brief was handed to her for her signature.
• It is unclear whether she ever read the brief, for all that mattered was that an Illinois lawyer sign it, to get it before the Illinois legislature.

     Do you suppose that she “knows it when she sees it” — ?

     Laws which fail to define their subject matter in an objective fashion are fundamentally wrong. Many such have been deemed unconstitutional upon appellate review. The reason is simple, if not quite “obvious:” if the offense is not defined straitly enough for an ordinary man to know exactly what it means, then no one can be certain whether he’s breaking the law. Such a law is a kind of black-letter Star Chamber, wherein the accused is incapable of knowing against what charge he must defend himself.

     However, vague offenses are grist for the mill of the aspiring tyrant. A “standard” of “I know it when I see it” is inherently personal. It transfers the definition of the offense to a man: whatever man is in power at the moment. It makes room for whatever he pleases to do, regardless of the facts.

     That’s not law as Americans have understood it for centuries. That’s dictatorship. Today it’s as prevalent in American courtrooms as it is in North Korea.

     We may gloss over the obvious interest of such as the Brady Center for Gun Safety in keeping “assault weapons” undefined. What matters more is the difference in kind between such a law and one that would ban a well-defined kind of weapon: e.g., a crew-served .50 caliber machine gun. Even a dunce would have a fair chance of knowing whether he’d acquired one such. Not that I’m advocating laws against such guns, mind you, but at the very least an ordinary man would have the capacity to understand what had been outlawed.

     The difference is Isabel Paterson’s nightmare of the Society of Status, which is incompatible with a Society of Contract and Law:

     In the Society of Contract man is born free, and comes into his inheritance with maturity.
     By this concept all rights belong to the individual. Society consists of individuals in voluntary association. The rights of any person are limited only by the equal rights of another person.
     In the Society of Status nobody has any rights. The individual is not recognized; a man is defined by his relation to the group, and is presumed to exist only by permission. The system of status is privilege and subjection. By the ultimate logic of the Society of Status, a member of the group who has not committed even a minor offense might be put to death for “the good of society.”

     Even persons opposed to the private ownership of weapons should be terrified by that.

     But wait: What’s that you say? We’ve already erected a Society of Status? What do you mean? Well, it seems that FDR’s Administration incarcerated over a hundred thousand Americans in concentration camps, simply because they were of Japanese descent:

     Eighty years ago, on February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066, stripping people of Japanese descent of their civil rights. That order and the subsequent actions carried out by the Federal Government represent one of the most shameful chapters in our Nation’s history. On this Day of Remembrance of Japanese American Incarceration During World War II, we acknowledge the unjust incarceration of some 120,000 Japanese Americans, approximately two-thirds of whom were born in the United States.
     Despite never being charged with a crime, and without due process, Japanese Americans were forcibly removed from their homes and communities and incarcerated, simply because of their heritage. For years, many Japanese Americans lived in harsh, overcrowded conditions, surrounded by barbed wire fences and armed guards. Not only did they lose their homes, businesses, property, and savings — they also lost their liberty, security, and the fundamental freedoms that belong to all Americans in equal measure.

     The reasoning? “There’s a war on.” And most Americans bought it.

     Perhaps I should stop there, before I begin to foam at the mouth. But one last question for my Gentle Readers: What is there that you can’t define objectively, but nevertheless you “know it when you see it” — ? Other than art, that is.