After Aurora, Pt. 1: Right-Wing Straw Men; the Uselessness of Baseball Cards; and Constitutional Theory, with George Costanza

I wasn't anywhere near Aurora on Friday morning, but some people I know and love were (thankfully, they are all okay). It's taken me a few days to adequately process the horror of what happened, and, as part of the nationwide conversation about gun control that always seems to arise in the wake of a mass shooting, I've done a lot of thinking about my stance on that issue. The Aurora massacre caused me to wrestle with myself more than I have in a long time--more than Platte Canyon or Northern Illinois (both of which also took place within 150 kilometers of where I was living at the time), more even than Virginia Tech.

Before I continue, I should mention that a) I utterly and completely deplore what happened in Aurora on Friday and my heart breaks for the victims and those close to them, and b) I have no doubt that gun control advocates argue from a place of compassion and are making a genuine good-faith effort to solve what is undoubtedly a serious problem. The former statement should go without saying, but if I didn't, somebody would surely accuse me of sympathizing with the shooter (who I shall not do the honor of mentioning by name), and nothing could be further from the truth. The latter statement is intended to emphasize that I do not generally impute any sinister motives to those who argue for stronger gun control, and that, although I disagree with them on this issue (as we shall see shortly), there is a perfectly valid logical basis for their position.

Would that they would extend the same courtesy to those who hold my point of view.

Time and again, I am confronted with the unfortunate and depressing reality that a substantial proportion of gun control advocates casually dismiss gun control opponents as crazed right-wing gun nuts. In their minds, gun control opponents "see no value to even considering some kind of control as to what kinds of weapons are put in civilian hands." In their minds, it is plainly self-evident that gun ownership is constitutionally protected only "if you're in a well-regulated militia." In their minds, the analogies between guns and other objects that can be used to bring substantial harm offered by gun control opponents are "completely specious." In their minds, literally every person who wants a high-powered firearm "intend[s] to use [it]." In their minds, only the far right poses a threat to this country; concerns that an overreaching government might make a systematic effort to strip its citizens of their rights are baseless and paranoid, and those on the far right who would, if necessary, defend their other constitutional rights by force are akin to terrorists.

Lest you think I'm putting putting words in the mouths of my opponents, these aren't my words and thoughts. They're Jason Alexander's, in an extended tweet the actor wrote on Sunday that has since been making the social media rounds, and they demonstrate that gun control is an issue that, like so many others, is barely amenable to meaningful discourse because the two sides spend all their time talking past each other.

I'm not sure which gun control opponents Mr. Alexander has been speaking to, but most of the ones I know don't dismiss the idea of gun control out of hand, as he implies; instead, they consider it carefully and reject it as a solution that doesn't fit the problem. That this particular issue has inflamed Mr. Alexander's passions, as he admits it has, does not mean that his adversaries are universally lacking in intellectual rigor (some are, of course, but that can be said of any side of any issue), and to tar them all with such a brush is to construct a supremely counter-productive straw man.

It's apparent, too, that either Mr. Alexander has been sparring with people who are utterly unprepared to defend gun rights effectively, or he hasn't been listening to opposing arguments, because the idea that the Second Amendment to the United States Constitution so conclusively supports his position is, to be charitable, debatable. "A well regulated militia being necessary to the security of a free State" is a prefatory clause, set off with a comma from the Amendment's operative clause, "the right of the people to keep and bear arms shall not be infringed;" then, as now, such constructions were actually quite commonplace, and in American law, prefatory clauses have typically been read as neither enlarging nor narrowing their correspondent operative clauses per se. Prefatory clauses, then, can be thought of as the constitutional and statutory equivalent of the judicial obiter dicta--they are persuasive but non-binding remarks whose primary importance is in resolving ambiguities in the text of binding law. (Mr. Alexander is welcome to try to argue that there is something ambiguous about "shall not be infringed" if he likes.) If the First Amendment carried the prefatory clause "A robust political discourse in the legislature and amidst the electorate being necessary to the survival of a free state," I wonder whether anyone would claim that it protects only political speech.

(Aside: Mr. Alexander admits that he is no constitutional scholar, but if he is going to pontificate on the subject of Second Amendment law, he would do well to focus less on the prefatory clause pedantry--which, I stress again, is a facile issue indeed, easily resolvable by anyone who has spent any time parsing the grammar of 18th- and 19th-century Anglo-American legal texts--and more on what exactly is meant by "the people." Arguing that the Second Amendment confers a collective, but not an individualized, right is a much more sophisticated tactic that has been employed by many left-leaning legal academics (which is to say, practically all of them). Of course, the holding of District of Columbia v. Heller--that the Second Amendment does confer an individual right--resoundingly refuted such a strategy, but that case was decided 5-4 along political lines and might well be overturned should the balance of power on the Supreme Court shift to the left sometime soon.)

Responding to the arguments of gun rights advocates that ask whether proponents of gun control are in favor of banning tomatoes and cars because they can be used to commit violent crimes, Mr. Alexander derides such arguments as "completely specious," on the grounds that "tomatoes and cars have purposes other than killing. What purpose does an AR-15 serve to a sportsman that a more standard hunting rifle does not serve?" To somebody who is only a sportsman, perhaps none, but, of course, it's not just sportsmen who are interested in obtaining guns. Mr. Alexander might consider it ostentatious, but there are people who collect guns, just as others might collect baseball cards or stamps or paintings or cars. To gun collectors, guns have intrinsic value; they are worth having because they are aesthetically pleasing, or are well-engineered, or have an interesting provenance. Mr. Alexander might as well inquire as to the purpose of a T206 Honus Wagner, or a Treskilling Yellow, or a major wine collector's 10,000th bottle of Sauternes. Indeed, he might ask what the purpose of an authentic katana is, since such an item is highly prized for its craftsmanship and historical importance by many Japanophiles--and also highly lethal. (This also puts the lie to Mr. Alexander's later assertion than anyone who seeks to obtain an AR-15 intends to use it, unless he is prepared to claim that the wine collector plans to drink himself to death, and that the Japanophile is plotting a beheading spree, and that my car-collecting uncle wants to take his 1939 Packard out for a spin on I-25.)

In closing, I reiterate that I think Mr. Alexander and other proponents of gun control have, for the most part, their hearts in the right place. But I also think that for many of them, in the words of The West Wing's Ainsley Hayes, it's not that they don't like guns; it's that they don't like people who do like guns. And I think many of them fail to see the flaws of a public policy that criminalizes acts that harm nobody because they are, in some cases, necessary predicates to acts that harm somebody; that's how we get the PATRIOT Act and the War on Drugs and Japanese-American internment. As I shall argue in Part Two of this lengthy essay, we as a nation are, or ought to be, too brave, too tough, too smart to tolerate legislation born of fear.