.

Conservatives and liberals late last week were touting the Second Amendment dustup between Sens. Cruz and Feinstein at a Judiciary Committee hearing over a proposed assault weapons ban. Both sides think they hit walk off homeruns, which is usually a reasonably good sign that neither did, and so it was in this case. Feinstein – and all those cheering her – further confirmed a conviction among many conservatives that liberals cannot reason very well and rely instead on emotion. Cruz actually made a better show of himself, attempting in a calm presentation and even voice actually to make a carefully reasoned argument attentive to language. The problem was – Cruz being a conservative, after all – that his argument was confused.

Feinstein attempted two kinds of counter argument to Cruz’s constitutionally-based questioning of her. Both, as we see from the liberal cheering after the fact, are good at rousing partisans, but absent any kind of accompanying and sustained argument in reason, neither was worth very much. Feinstein’s first effort was the fallacious Argument from Umbrage: I take offense; therefore I am right. Lecture me like a sixth grader, she objected? You must be wrong. The simplest and most ineffective form of this argument was displayed not long ago by Peirs Morgan during his dismantling by Breitbart’s Ben Shapiro. (Yes, I know, it is a veritable psychological knot to observe intellectual pugilism while ardently desiring the defeat of both contestants, but credit where credit is due: Shaprio was poised, in control, and simply excellent.) The full force of Morgan’s Argument from Umbrage?

“How dare you!”

Mostly, Feinstein essayed an ethical appeal. Ethical appeals, drawn, in Aristotle’s Rhetoric, from the ethos or character of the individual making the argument have a number of sources, and one of them is that individual’s personal experience with the topic. Feinstein drew on her personal history with gun deaths – she ascended to the mayoralty of San Francisco as a result of the handgun murder, in his office, of her predecessor, George Moscone – and her own authorship of the prior, now expired assault weapons ban. She closed by asking Cruz to respect her position. This, of course, was a complete non sequitur. The point of contention was never their lack of respect for the opposing view, but their disagreement with it. Cruz could respect Feinstein’s view all day long, but he would still disagree with it, and, well, they would remain where they stand.

Feinstein’s argument, then, was almost all to the imaginative sympathies of her audience and not to its reason. There was one exception, however, rushed out near the end amid all of the other arguments as if she hardly knew the difference.

Incidentally, this does not prohibit — you used the word “prohibit” – it exempts 2,271 weapons. Isn’t that enough for the people of the United States? Do they need a bazooka?

Not incidental at all, but we’ll come to that.

Cruz, unfazed, observed in response that Feinstein “chose not to answer the question that I asked.”

He was right.

What, then, was Cruz’s argument to begin?

It seems to me that all of us should begin, as our foundational document, with the Constitution, and the Second Amendment in the Bill of Rights provides that the right of the people to keep and bear arms shall not be infringed.

Cruz then noted that the phrase “the right of the people,” which he called a “term of art” by the framers, also appears in the First and the Fourth Amendments. What Cruz was about to do was assert a logical parallel among the three amendments, and he used that phrase, “the right of the people” – distributing to each amendment a similar intent by the framers – as a rhetorical and conceptual anchor for the analogy. All very good. Now,

The question that I would pose to the senior senator from California, would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First and Fourth Amendments. Namely, would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books, and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment’s protection against searches and seizures, could properly apply only to the following specified individuals, and not to the individuals that Congress has deemed outside the protection of the law?

Let’s patiently uncover where Cruz goes astray. In the case of all three amendments we have the right itself, as an idea, and the instances of its application, and we have the people it is applied to, who are afforded that right. The assault weapons ban is an attempt to limit the instances of application – specified firearms that may not be sold to the general public. It is not an attempt to proscribe particular classes of people or individuals from enjoying the right to bear arms. It is a proposed restriction on the instances of application of the right, not a restriction placed upon those to whom the right is applied. We can quickly see that in the case of the Fourth Amendment, Cruz has confused the terms. The analogy does not hold because in Cruz’s example, he has “specified individuals” being denied the right against unreasonable searches and seizures. The assault weapons ban is not a restriction on individuals, but instances – on specified weapons, not specified people. This is not analogous at all. The courts, indeed, are regularly, in light of technological advances, for instance, reconsidering the applicable instances of unreasonable searches and seizures.

In the case of his comparison of the Second Amendment to the First, Cruz is simply mistaken in believing that the latter is absolute. To clarify in terms of the analogy Cruz attempted, let’s distinguish first between the book as a form and its content of ideas. Firearms on this level alone are not easily analogized to a book, yet we might, still, proffer that the category of a personally borne firearm is analogous to the book form and that the technological variations in ordinance delivery of such a firearm are analogous to book content.

Certainly, there are no restrictions on the book as a form. Nor is the assault weapons legislation proposing a restriction of the firearm as a category, or form, of weapon either. However, there are restrictions in principle on such content as obscenity and child pornography and on incitement to violence as content that may not be consumed because they may not be lawfully distributed. Taking book as a generic term for a text, there are also restrictions on the right to read (because of restriction on the right to access) governmentally classified documents and commercially and personally private documents. These are just a few offhand examples, and there are, indeed, only a few restrictions proposed by the new legislation of the right to bear arms: recall, now, Feinstein’s reference to 2,271 exemptions from the proposed ban. With only a similar relatively small number of automatic and other assault weapons restricted, contrary to Cruz’s analogy, an analogy upholding the internal logic of specifically justified limited restriction in the case of both amendments is actually much better made, for such restrictions already exist within the purview of the First Amendment, which Cruz tried to use as his basis for opposing any kind of restrictions under the Second Amendment.

The scorecard, then? Cruz made better contact with the ball and committed his errors on more difficult plays, but he never brought a runner home. Feinstein played sloppy, but scored one run on a walk.

Cruz tried, but he failed. Second Amendment absolutists are crowing. They should be eating crow.

AJA

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