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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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7 comments

{ 5 comments… read them below or add one }

edward March 18, 2013 at 6:53 pm

to address your first and last points – i’d argue that the popularity of the AR-15 is the entire reason it’s been targeted. fbi homicide data* shows that for every person shot with a rifle (and that’s just “rifle”, generically, not an AR-15 specifically) ~3.5 are beaten to death. it is not targeted because it’s particularly deadly or a favorite of criminals – clearly they favor handguns. it was targeted because the aim of the bill is to restrict gun ownership as broadly as possible.

ostensibly, documents become classified because their release would be harmful somehow to the nation. there’s (supposed to be) a compelling public interest reasoning for restricting access – considering rifles kill less people than improvised clubs (fbi data again) i don’t think a similar argument can be made for them. further, “classified” is not a “base state” for most documents. excepting things like intelligence, “black projects” etc. most documents begin life in the public domain, or are at least accessible via the foia.

the assault weapons ban would work the opposite way, and that was cruz’s point. rather than ‘ok, here’s some extraordinary things you can’t have’ – it’s ‘heres a list of what is allowed, anything else is illegal’, and the exempted guns thing shows that. i think most people would consider that to be unacceptable considering it’s a constitutional right being discussed.

*http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded-homicide-data-table-11

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A. Jay Adler March 18, 2013 at 8:20 pm

Focus on popularity and a desire to “restrict gun ownership as broadly as possible” is your subjective supposition as to motive. Since that is not the argument offered in support of the AWB, arguing against motive is a red herring.

The “base state” of most classified documents is an interesting issue. I suppose most classified documents do begin as such. I’d be idly curious to know of any statistics. However, that is a sidelight. There is no conceptual requirement that we start at any base state, and if we did, what is “base” would be arguable. How about all and only those arms that existed at the time the Second Amendment was ratified?

The focus of this post is the specific argument Cruz made before the committee, seeking support from the First and Fourth Amendments. I have established that his argument is flawed on that basis. A wider argument over restriction of firearm possession is for another day, maybe. You do found good reason in classifying documents in a “compelling public interest” to do so. That is the argument, generally speaking, of those who support reasonable restrictions on firearm ownership, and I think many people would agree that “kills more people than improvised clubs” does not need to be the standard of a compelling public interest in that regard. We might, though, have reached agreement in that phrase on a conceptual basis for restriction; now society can proceed democratically to debate the particulars.

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A. Jay Adler March 18, 2013 at 3:07 pm

Of course, the popularity, if that is so, of the AR-15 is completely irrelevant to the considerations of this argument.

I did not argue that there are no restrictions in gun ownership related to people. My argument is that 1) it is not the relevant issue in this debate and 2) it was not germane to the logical and legal parallels Cruz sought to establish.

There certainly are existing restrictions according to specified classes of people. There are such restrictions in my textual analogy related to classified documents, too: only individuals with specified government security clearances can read various levels of classified document. We make such exceptions based on well-reasoned distinctions among weapons and function in society of groups of people. To most people, law enforcement exemption regarding some weapons for police and a national defense exemption for military personnel make eminent sense. Unwillingness to acknowledge the reasonable basis for these exemptions carries this argument to a whole other level of extremity beyond the terms considered here.

The banning of Bible language analogy based on “popularity” is entirely confused. The AR-15 is not proposed for restriction from civilian ownership because it is popular. There is a rationale for its proposed restricted possession based on purpose and safety.

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edward March 18, 2013 at 2:28 pm

i enjoyed reading your analysis of “styles”, but you’re wrong about the actual impact of this bill – understandable considering the ways it’s presented by proponents. automatic rifles have been (effectively) illegal since the 80s. the rifles targeted by this bill are flat out, the most popular and widely owned in the country.

the bill proposed specifically exempts certain classes of people (cops, retired cops, government employees [that's the wording in the bill, so presumably the people working the DMV counter would be exempted]), undeniably creating “protected classes”.

the proposed AWB would make virtually every semiautomatic rifle on the market illegal. there are a few exceptions, but for the most part you can point to any semiautomatic rifle sold currently and it would have to be completely redesigned to be legal. the bill is arguably targeted at one rifle in particular, the AR-15, which also happens to be far and away the most popular rifle sold in the united states.

staying with the book analogy, let’s assume the bible is the most popular book in the US – this AWB’s effect on the AR-15 would be roughly analogous to making references to “lord” “god” “jesus” “him/he/his” within a book illegal. re-writing the bible to keep the meaning might be possible, but the resulting tome probably wouldn’t be considered a bible.

as far as “exceptions”, once again, this would be like making harry potter, the bible, 50 shades of grey, twilight series, lord of the rings, chronicles of narnia, insert-another-popular-book-here illegal – and exempting only, say, early-childhood books. winnie the pooh etc. the assault weapons ban may exempt 2000+ guns, but there are far less of those in circulation than there are of the type facing a ban.

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pauls March 18, 2013 at 1:24 pm

“The assault weapons ban is not a restriction on individuals”
Unless I am mistaken the ban allows for police to posses these weapons. Does that not create a class of people in restriction? Those who are not cop.

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