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Friday, May 09, 2003

The "Smelly" Second Amendment, Part I.

I've been an on-again, off-again member of the NRA since law school, currently the latter. Not because I have a particular beef against the organization (although I think it is sometimes inflexible and picks its fights poorly), but rather because I was both inattentive and cheap about keeping up my membership. Regardless, I've always been convinced that the Second Amendment protected an individual citizen's rights to own firearms. Moreover, I've never believed it was just for hunting, either.

An interesting fact about the debates over the Second Amendment is that, until recently, there was an almost uniform elite revulsion against the "individual rights" position. The Swedish chattering classes have intoned, mantra-like, that to the extent it meant anything in our modern enlightened era, the Second Amendment only protected the "right" of State governments to have their own militias.

However, over the last twenty years, that position has been under increasing assault in, of all places, the American legal academy. Beginning with Don Kates' magisterial article in the Michigan Law Review, an increasing number of law professors have come to the conclusion, sometimes sheepishly, that the Second Amendment protects an individual right. For an excellent example of this kind of honest admission, see Sanford Levinson's The Embarrassing Second Amendment. For a general overview of the explosion of articles about the Amendment, see the handy list at the Second Amendment Law Library.

Frankly, this turnaround is a small miracle. Why? It had to overcome the elite prejudice against The Crude Smelly Folk & Their Bloodsports. If you think I'm exaggerating, you are wrong. The same issue of the Yale Law Journal that contained Prof. Levinson's commentary also published a response (of sorts) by Professor Wendy Brown, wherein she related how she met an NRA cap-wearing hunter drinking beer by his Winnebago while she was seeking help for her stalled car. He agreed to help, and after two hours, got the car started. In gratitude, Prof. Brown described how she was afraid he could have raped her. This provoked the trenchant response of another Professor, Douglas Laycock:

Whatever precautions may be necessary, it is important to distinguish in thought and rhetoric between two propositions: (1) Some men are potential rapists, and because it is impossible to tell which ones, there is always some risk. (2) All men are potential rapists. Proposition (1) is true, but proposition (2) does not follow from (1).

Professor Brown’s anecdote goes well beyond either of these propositions. The juxtaposition of her fear of rape with this man’s personal characteristics plainly implies that with this man, she perceived the risk of rape to be significantly greater than average. She could tell that he was a likely rapist because of his NRA cap, his hunting club, his beer, his satellite dish, and his porn magazine. That charge is implicit in the entire anecdote; there is no other reason to dwell on his personal characteristics. She eventually makes the point explicit: "During the hours I spent with him, I had no reason to conclude that his respect for women’s personhood ran any deeper than his respect for the lives of Sierra deer ..."!!

There are indeed people in our society who have no more respect for humans than for animals. We call them psychopaths, and when they act on their impulses and we catch them, we lock them up. They are mostly male, but as far as I can tell, they are a tiny percentage of the population. What is the evidence that this man was a psychopath? Well, the NRA cap, the hunting club, the beer, the satellite dish, and the porn magazine.

We also have the evidence that he spent two hours of his limited time in the mountains helping a total stranger fix her car. The stranger was a woman, and he gave his time to help her; that is some reason to conclude that he respects women more than deer. That he offered to help her is not dispositive, as there are occasional accounts of men who help a woman and then rape her. But there is no evidence that Professor Brown’s benefactor was such a man. He simply helped her.

That did not earn him any credit with her, nor did it provide her any evidence that he respected women more than deer. Nothing in his individual conduct could overcome Professor Brown’s stereotype. If you fixedly believe that blacks are lazy, a hardworking black is "no reason to conclude" otherwise. Either he is an exception, or his hard work is invisible to you. For Professor Brown, NRA members with porn magazines are likely rapists who think of women as animals, and individual traits and conduct are invisible to her even when she is the beneficiary.

Professor Brown’s description of her benefactor emphasizes their political disagreements, but there are also important elements of class bias in the story, especially in its comparison of his beer and television to her trail mix and Nietzsche. However heroic the working class may be in the abstract, its members are a perpetual disappointment to many academics. They do not believe what academics believe, read what academics read, or choose the recreation that academics choose. They are also widely thought to be intolerant. But as far as I can tell, no class and no political faction dominates the market in intolerance.


Consequently, there's more than a constitutional argument behind the rhetoric of those opposed to a serious interpretation of the Second Amendment--there's a pronounced and unacknowledged class bias motivating too many gun control proponents, and it stinks to high heaven.

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