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The issue of guns in America causes people in other parts of the developed world to look at our country and shake their heads. – from the Prologue
[Full disclosure, or what does the reviewer think about gun control? Go here, here, here, here]
Why the head shaking? Because every few months we, in other countries, see the President of the USA asking the US Congress for some legislation to stop the slaughter of citizens – to no avail. Mass shootings bring about but one thing; an increase in gun sales.
Why? The NRA. For example, the ten-year ban on military assault weapons (Brady Bill 1994-2004) "had support of 78% of the American people "when Congress, pressured by the NRA, allowed it to lapse. Another example, although the Brady Bill had 85 – 90% public support it took seven years to become law.
Why does any civilian need a military assault weapon? "To protect themselves from the feds!" Or, "They are fun to shoot!" Really? Much of the discussion (often PR fluff, or examples of logical fallacies) centers around the second amendment of the US Constitution. And this in turn brings up a large set of problems about how to read and how to interpret a text.
The Second Amendment of the United States Constitution reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory." A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia . . . ." The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.
This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.
Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff in McDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defence. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.
Heller seems a prime example for analysis in a logic class. It strikes me as a clear case of a category mistake. The term "category-mistake" was introduced by Gilbert Ryle in his book The Concept of Mind (1949) to remove what he argued to be a confusion over the nature of mind born from Cartesian metaphysics. Ryle alleged that it was a mistake to treat the mind as an object made of an immaterial substance because predications of substance are not meaningful for a collection of dispositions and capacities.
The phrase is introduced in the first chapter. The first example is of a visitor to Oxford. The visitor, upon viewing the colleges and library, reportedly inquired "But where is the University?" The visitor's mistake is presuming that a University is part of the category "units of physical infrastructure" or some such thing, rather than the category "institutions", say, which are far more abstract and complex conglomerations of buildings, people, procedures, and so on.
Ryle's second example is of a child witnessing the march-past of a division of soldiers. After having had battalions, batteries, squadrons, etc. pointed out, the child asks when is the division going to appear. 'The march-past was not a parade of battalions, batteries, squadrons and a division; it was a parade of the battalions, batteries and squadrons of a division.' (Ryle's italics)
His third example is of a foreigner being shown a cricket match. After being pointed out batsmen, bowlers and fielders, the foreigner asks: 'who is left to contribute the famous element of team-spirit?'
He goes on to argue that the Cartesian dualism of mind and body rests on a category-mistake.
The United States Supreme Court in 2010 ruled that corporations are persons!
In its 5-4 ruling two years ago, the court declared that restrictions on independent expenditures violated the First Amendment's free-speech protections. Free speech has always been thought of as something that persons engage in, but the ruling meant corporations and unions could spend unlimited amounts on ads designed to help or hurt a candidate; the ruling, however, did not change the rules governing contributions made directly to candidates.
That ruling, along with related campaign-finance decisions, has enabled political operatives to raise and spend record sums. Groups such as American Crossroads have been pumping big bucks into Republican efforts, while Democrats have formed groups with names such as Priorities USA.
In interpreting the second amendment gun advocates also are making a category mistake -conflating a militia with an individual.
In his book chapters Henigan approaches the topic by a careful and logical analysis of the "bumper sticker" claims of the gun advocates:
· Guns Don't Kill People, People Kill People;
· When Guns Are Outlawed, Only Outlaws Will Have Guns;
· Gun Control is a Slippery Slope to Confiscation;
· An Armed Society Is a Polite Society
· The Only Thing That Stops a Bad Guy With a Gun is a Good Guy With a Gun;
· We Don't Need New Gun Laws. We Need to Enforce the Laws We Have;
· Is Budweiser Responsible For Drunk Drivers?
· The Second Amendment is The First Freedom;
· Epilogue: Beyond Mythology to Life-Saving Laws.
Each chapter confronts the bumper sticker "argument" and demolishes it.
In fact, this would be an excellent text for supplementary reading in an informal logic class. Or any university class teaching interpretive skills in reading a text: "it is more accurate to say that most Americans adjust their views about the Second Amendment to accommodate them to their views about gun control. If they think gun control is sound public policy, they will conclude that it is not prohibited by the constitution."
© 2016 Bob Lane
Bob Lane is professor emeritus in philosophy at Vancouver Island University and the author of Reading the Bible: Intention, Text, Interpretation.