This is a follow on to a post I wrote earlier today on gun control, which should be read first.
That post dealt with the Second Amendment issues and pretty clearly suggested Fenster was persuaded that the Amendment sets a pretty high hurdle where significant gun restrictions are concerned. By emanation and penumbra, it might also suggest that Fenster is anti-gun control down the line.
But is that so? After all, the law review article that formed the basis for most of the discussion in favor of a fulsome reading of the Second Amendment was penned by someone in favor of restrictions, so where one stands on the matter of Constitutional interpretation does not necessarily have any bearing on where one stands in terms of preferred policy.
And that is as it should be. We have become so inured in the Era of Spin to the idea that all ideas must bend to a preferred narrative that we risk losing the notion of walking and chewing gum at the same time. It’s like what corporate gurus mean when they talk about brand alignment–it all has to line up like ducks in a row.
Sorry, we are not a corporation, Dark Enlightenment types notwithstanding. I am of the Crooked Timber school myself and am happy to have one view on what a law or constitution means and another on what I would prefer, including what I would actually change and enact.
So I am, thanks in large measure to the Constitution, at liberty to have and to express opinions that clash with those of others and even seem to clash with my own. Hooray for that.
[Side note: Whether we can hold on to free speech in an era which seems bound and determined to change the reasonable person standard is another matter, discussed previously here and here and to be taken up in this space again later since the trend on speech is running in a bad direction. Now it’s guns.]
So the idea here is FWIW to outline Fenster’s shifting and perhaps shifty POV on the issue, holding interpretation aside.
Like Levinson, I favor some restrictions. Which ones? That’s debatable–but there has to be an actual debate, one that can take place in the center and not on the margins.
I have no doubt that many liberals espouse “reasonable restrictions” when they really just don’t like guns and would like a toe-hold to move in that direction. And in turn conservatives argue from the slippery slope–“see, we can’t budge an inch since if we give them that inch they will take a mile”. As with abortion, the domination of the debate by the margins complicates the the already messy job of setting seemingly arbitrary but necessarily boundaries in the center.
For me, one of the appealing aspects of Levinson’s argument for taking the Second Amendment seriously is that, if it were to be established as firm and relatively fixed, the slippery slope argument is undermined. If we an all agree that there is simply no way in hell from a legal point of view that the fundamental right to bear arms will ever be abridged, the political argument for reasonable regulation gains strength. Yes, there are some who will oppose any regulation on the face of it. But I am not one of them, and I suspect there are many Americans like me–just at there are many like me in the messy center on abortion.
Take away the risk of slippery slope and I am all for regulation–or, at least, for starters, a healthy discussion about regulation in which I can make up my mind in a reasonable way. At the outset, I would guess I would end up favoring strong background checks and regulation of private sales and some restrictions on high powered weaponry.
That last one is a tough one on where to draw the line, as the gun notion morphs into other forms of advanced weaponry–from assault weapons to bazookas, and so on. Maybe a citizen’s ownership of assault weapons will be viewed as an important tool in combating workplace violence–and maybe not. But as messy as that decision is, it is not any messier than deciding which week of pregnancy is a week too far if you are troubled, as many Americans are, by a too-blase attitude where fetal viability is concerned.
Now, I have set the constitutional argument aside here for a moment for the sake of argument but of course you can’t do that in the final analysis. In the end, the Second Amendment needs to be woven back in.
Here, a comment by Levinson is worth quoting:
As Ronald Dworkin has argued, what it meant to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other parts of the Bill of Rights were always (or even most of the time) clearly cost less to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs — criminals going free, oppressed groups having to hear viciously racist speech and so on — helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments. Most often, one finds them embracing versions of textual, historical, or doctrinal arguments that dismiss as almost crass and vulgar any insistence that times might have changed and made too “expensive” the continued adherence to a given view.
So here I reveal again my non-legal training and risk veering into pomo territory in attempting to understand what the law is actually doing, functionally and culturally, when it invokes seemingly bright-line mumbo-jumbo. Its text may say on its face that is hereby is sealing off x from further critical inquiry and that’s that. But in fact, all apparent bright line formulations are about expressing the high importance of x rather than being about x being walled-off, sacred and untouchable for all time. You have only to look at the jurisprudence of free speech to see that. Why should the Second Amendment be any different?
So Fenster’s view–as a citizen and not a lawyer (which is also as it should be):
- The Second Amendment sets the bar very, very high, and effectively proscribes any serious effort that would deny arms to citizens.
- Use that to burn down the slippery slope, the better to enable policy discussions in a less toxic and game-prone environment.
- Consider reasonable restrictions based on sound policy considerations, same as any other policy debate.
- Use the less toxic environment not only against gun zealots but also against liberal dogmatists who talk about guns because they don’t want to talk about inner city pathologies, deinstitutionalization or radical Islam.