Fenster Stands and Delivers

Fenster writes:

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):

  1. The Second Amendment sets the bar very, very high, and effectively proscribes any serious effort that would deny arms to citizens.
  2. Use that to burn down the slippery slope, the better to enable policy discussions in a less toxic and game-prone environment.
  3. Consider reasonable restrictions based on sound policy considerations, same as any other policy debate.
  4. 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.

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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10 Responses to Fenster Stands and Delivers

  1. Will S. says:

    There have apparently been 355 incidences of mass murders in the U.S. in 2015.


    Is that not a hell of a big number?

    It seems so to this foreigner, looking in from the outside. I’m pretty sure we haven’t had 36, despite being 1/10 your country’s size.

    We don’t have an equivalent of the Second Amendment in Canada; as for gun control, we lie somewhere between America’s policy and that of Britain and Australia (which have very tight gun control) – and we have less violent crime per capita than all three, from what I’ve read. Anyone in a rural area here is familiar with shotguns and rifles; farmers have them, people who go hunting have them. Handguns and assault weapons are banned, though, and only get into big cities, into the hands of gangsters etc. from being smuggled in, and despite much higher violent crime rates in urban areas compared to rural, we still have relatively low ones, compared to others, as mentioned.

    I don’t know what the answer is, except looking at Australia and Britain on the one side, and America on the other, we seem to have found some pragmatic mushy moderate medium that works, somehow. Hopefully it will stay that way.


    • INC says:

      The 355 number is taken from an antigun Reddit forum “study”. They include every incident where three or more people are injured by gunfire in a single incident. The media, knowing as it does that all statistics are true, especially when formulated and analyzed by pimple face basement dwellers, have begun quoting this number as gospel. Even the Justice department rejects it.

      Liked by 1 person

    • JMC says:

      The 355 claim comes from a Reddit forum and is totally bogus.

      Liked by 1 person

    • Fenster says:

      The question of how many mass shootings seems much debated now, with some questioning the 355 number and numbers like it:
      There’s a terminology issue to be dealt with. Plain speaking and good analysis is the answer but that can get difficult, especially since plain speaking is difficult when we don’t seem to be able to mount that national conversation about race very effectively.

      Categories of these things bleed into each other, so to speak, but I think people have a rough idea of the different categories of things that are important. There are politically motivated killings undertaken as part of an organized effort to sow havoc, terrorize a population and achieve strategic ends. There are individual copycats of those efforts, bleeding into nutcases. Then there are pure nutcases–loners without any clear agenda. Then there organized efforts tied not to political aims but criminal ones–drug violence, say. And then there are semi-organized efforts tied less to any clear political or criminal enterprises but essentially cultural ones–some gang shootings. And then there are mass shootings resulting simply from the excesses of honor culture in both white (southern) or black (urban) areas. Put that all together and yeah, per slumlord’s comment below, we’re different. We contain multitudes!


    • Will S. says:

      Ah, I see. Thanks folks. Shoulda known it was a prog inflation / lie.

      Even so, it seems like every other week we’re hearing some incident in the news about a mass murder; it’s appearing to become more commonplace as time goes by.


  2. slumlord says:

    For what it is worth, the gun laws here in Australia have virtually eliminated the “hot headed” type of gun crimes, but they have done nothing to limit gun crime by the criminal element in society. In fact, I would venture to say that gun crime in this segment is far worse than what it was even ten years ago. However, this element’s crimes are usually directed towards other criminals, so it’s not really an issue for the mainstream.

    From my perspective, both your constitution and founding political history were quite clear on the trade-off between liberty and safety, with the Founding Fathers, clearly favouring the former. It’s an easy matter to settle in these contentious times; put the issue to the vote. The U.S. public can always change the constitution if it feels that it is not relevant any more. But we all know that’s not how the game is played now.

    The tragedy here is that this argument, once again, is being framed by the left for its own purposes with the Right playing its game in a crouching position. And the Left is very successful in it’s approach because it exploits a pre-existing weakness in Anglo-Protestant societies which blames things rather than people. Hence the focus of social engineering in these countries is to restrict access to things rather than tackle the moral issues. Prohibition, anyone? Other countries have guns, but they don’t have anywhere near the same level gun violence that the U.S. has. This is a U.S. cultural problem which the U.S. really doesn’t acknowledge.

    Americans really are different.


  3. Ace says:

    Every method of government must make tradeoffs. Ostensibly, the USA was founded on principles. Anglo-Saxon principles, of course, but the concepts of Fatherland or Motherland or “blood” or “terroir” are foreign to the Constitution. However, if one acknowledges that the Constitution was established to prevent the growth of the Central Government, then the ability of the average citizen to have access to an arsenal is at a premium. The tradeoff, unfortunately, is that one must allow for squabbling at the lower levels of federalism, to avoid the big, often genocidal squabbles on the Big Stage of Geopolitics. Better that 5 people die in a drunken vendetta, then, say 116,000 in 6 months on the Fields of Flanders.

    At this point, however, the Story of the USA is the Story of a Central Government slowly but surely consolidating its dominance through Civil War, a Central Bank, 2 World Wars, a 40-year “Cold War”, and now a War on Terror that has reached Milo Menderbender levels. But our Central Government is playing a very dangerous game. Our economic system teeters on collapse. The middle class that provides all the goodies of the welfare system has been under direct attack for 2 generations, and is fast dwindling. Should a war be needed, trannies and chicks won’t be sufficient to achieve victory.

    Whether or not guns should be legal, or will be legal, in 2015, is an issue for the fancyboys to prance around. The only issue for the average American should be: how many guns do I need, do I have enough ammo, can I use them effectively when I need them, and when – not if – will I need to use them to defend myself and my family.


  4. Jeffrey S. says:

    Part of the problem is that most Americans don’t understand guns or know what an assault weapon is:


    (the second video is better, but I included the first just to prove the second guy — who is more ‘colorful’, wasn’t full of it!!!)


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