President Obama's editorial from Sunday's Arizona Star is an unusually refined example of his rhetorical style. Normally he has the habit of positioning himself rhetorically as the single voice of reason between two groups of ugly, warring extremists. While this allows him to suggest that his position is the road of sensible compromise, it has the disadvantage of painting his allies as well as his ideological foes with a very negative brush. Since most Americans have interests aligned with one or another of the factions being painted, over time this rhetorical strategy tends to annoy most everyone.
This letter is finer than the usual technique because it uses the "compromise" rhetoric with far less disdain for his opponents (or, for that matter, his allies). It's well crafted.
Here's the part directed at gun rights supporters:
However, I believe that if common sense prevails, we can get beyond wedge issues and stale political debates to find a sensible, intelligent way to make the United States of America a safer, stronger place.The one rhetorical flaw here is the phrase "common sense." The line is about getting beyond 'stale' debates, but the phrase "common sense gun [controls/reforms/laws/etc.]" is perhaps the oldest and most worn of the many old chestnuts here. I can't think of a single proposed gun control law that wasn't described as a 'common sense' reform.
I'm willing to bet that responsible, law-abiding gun owners agree that we should be able to keep an irresponsible, law-breaking few - dangerous criminals and fugitives, for example - from getting their hands on a gun in the first place.
I'm willing to bet they don't think that using a gun and using common sense are incompatible ideas - that we should check someone's criminal record before he can check out at a gun seller; that an unbalanced man shouldn't be able to buy a gun so easily; that there's room for us to have reasonable laws that uphold liberty, ensure citizen safety and are fully compatible with a robust Second Amendment.
If you've always had the feeling that somehow that particular rhetorical strategy was unfair, you're right. The "common sense" is an idea we have from Aristotle's Parva Naturalia (and De Anima, although there is some dispute about whether his "common awareness" here is analogous to his "common sense" from the other work) where it is a mental faculty of the individual's: it is the "sense" that unifies and orders all the other senses into a "common" picture. Thus, you see a beach and an ocean; you smell the salt water; you hear a seagull behind you: your common sense is what puts that all together into a mental representation of being on a beach, and allows the part of your mind that does hearing to warn the part of your mind that handles sight to expect a seagull arcing into the picture. When the gull appears from behind you, you are not surprised and are prepared to track its movements through space.
"Common sense" as we normally use the phrase in natural language is an extension of this capacity to humanity as a group. Now, instead of ordering separate senses (sight, hearing, etc.) we're ordering together our several separate representations. We are able, as a group, to compare our several ideas about what the world is like, and put them together into a picture we can agree upon.
Thus, the rhetorical ploy is unfair because it attempts to slide over the fact that there is substantial disagreement about the proposed new law. In order for a reform to be "common sense," it really needs to be something that we all pretty much agree 'fits our picture.'
Does the President's proposal achieve that for you? It's a little unsettling to read the Chief Executive of the United States arguing before the public that the first major reform needed is better enforcement of existing laws.
Good point: if only there were someone whose job it was to make sure the laws were enforced!
Aside from that, though, I think there is a serious sticking point in terms of defining what constitutes an "unbalanced" person in the right way. We all know this category exists -- we were just talking about ax-murderers yesterday -- but for the purpose of the proposal we would need to be able to define its membership pretty precisely. We talked about this at the time of the shooting. At that time, it was Rudy Guiliani who was proposing the restriction.
What is the due process that could work here? The diagnosis process, as I understand it, is largely an Occam's razor process -- that is, you look at reported symptoms and determine what is most likely. There's no lab test. No one can be sure the diagnosis is right.I still think 'a good sharp knife' is a better defense than the law in cases like this; the law is too blunt, you might say. Many times liberty can only be adequately defended by the individual who possesses it. This strikes me as a case of that type.
There's also no meaningful appeal. Presumably, since the diagnosis has no force, you could simply get a second opinion. However, why would anyone give you one? They can't be any more certain of their diagnosis than the original doctor. That puts them in particular legal jeopardy if they give you the 'all clear': if they say you're good and they're wrong, they are personally liable for the harm you do. If they concur, or give a report that is noncommittal, they're safe. Why would they take the risk?
You might answer: "Because they believe in individual liberty." In that case, though, how can we rely on their clearance? Let us say that the ACLU were to set up a shop of psychologists who took it as their duty to clear everyone possible, in the interest of civil liberty. (Or say it was the NRA; whoever.) Now you really do need due process, to decide between the competing reports.
On what basis, though, would a court decide? Something as sentimental as the judge's personal sense of whether or not you 'seem normal'? A jury's? Shall we pursue a foundation for our fundamental liberties no more certain than that?
All of this suggests to me that we're far better off absorbing the occasional shooting -- and preparing ourselves, as individual citizens, to resist it -- than accepting this kind of restriction on basic liberty.