Notional Enemies

Like all Marines, I spent a lot of time at firing ranges. It turned out however that sometimes these ranges lacked even fake targets. As a result we had to wage a kind of fake and frustrating war on an elusive “notional enemy.” One encounter with an actual enemy, however, gave me a new appreciation for the notional one. George F. Will, WaPo wordsmith, baseball fan, and resident raconteur, has made career out of this tactic. Real enemies, like real arguments, are hard to defeat; better to confront the fake ones. Although we are wearying of Will’s consistently fallacious claims, his nauseous elitism and his neo-conservative soap-boxing, today Will leads off with a real gem: >By striking down the District of Columbia's extraordinarily strict gun control law, which essentially bans guns, a federal appeals court may have revived gun control as a political issue. Perhaps I’m uninformed, but I was unaware that gun control had ceased to be a political issue. To argue that gun control has lain “dormant” lo these many years and that this federal court has now awakened some gun-toting, right wing giant is simply ridiculous. Will (inexplicably) wants to warn the Dems to look out for the right-wing gun nut majority that is now building steam. There’s not really an argument to be had there, so Will simply manufactures a premise that supports his tale of woe. We’ve seen this before, with our Beloved Leader. In lieu of an actual enemy, I’ll construct one, defeat it, and claim victory. I. Am. Awesome. Will isn’t ready to relinquish the traditional form of his preferred fallacy just yet, however: >Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Post last week that even if the Second Amendment is construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right. Go through the link in Will’s piece to Dr. Chemerinsky’s article. It’s actually a very nuanced claim about exactly what types of rights are enumerated in the Constitution and what types of rights the federal courts seem to be implying in their recent gun-control cases. Yet, Will ignores the built-in limitations of the 9th Amendment and mischaracterizes this piece as espousing some sort of paternalistic theory of Constitutional hermeneutics to prove the willingness of left to trample the rights of the people in their rush to take away all our guns. Here’s the payoff: >If the Supreme Court reverses the appeals court's ruling and upholds the D.C. gun law, states and localities will be empowered to treat the Second Amendment as the D.C. law does: as a nullity. This will bring the gun control issue — and millions of gun owners — back to a roiling boil. That is not in the interest of the Democratic Party, which is supported by most ardent supporters of gun control. Oh, is that right? -pm

21 thoughts on “Notional Enemies”

  1. Ahh, “nuanced.”

    In this context that word means “slathered in bulls*!t.”

    While “gun control” hasn’t “ceased to be a political issue,” it has become almost as much of a “third rail” as Social Security. Most Democrats (with the exceptions of the likes of Rep. McCarthy who was elected directly on that issue) have shied away from it as a career-killer.

    As a representative of the right-wing gun-nut coalition, let me say that the Parker decision has absolutely gotten our rapt attention. We’ve studied the history, the jurisprudence (and lack of prudence), and the effects of gun control here and around the world. We can read the twenty-seven words of the Second Amendment, and we can recite, chapter and verse, the court decisions that first disarmed free blacks, and then everyone else in the name of “public safety” that those laws have never provided.

    Here’s what this gun-nut expects: The City will appeal to the D.C. court for an en banc re-hearing. The court will grant appeal. One of the current majority will not be able to sit on that bench. There will not be enough intellectually honest and honorable judges on the bench to sustain the decision, and it will be overturned on some technicality or another. (It certainly won’t be overturned on, you know, logical grounds). It will be appealed to the Supreme Court, and the appeal will be denied.

    We’ve seen it for decades.

    Oh, and Kerry and his shotgun? Blatant pandering, and recognized as such. “Kin I get me a huntin’ license here?” Yeah, right.

  2. “There will not be enough intellectually honest and honorable judges on the bench to sustain the decision.” — Talk about slathered in bulls*it! This clearly reads, “any judge who disagrees with my view point, because obviously I’m a constitutional law expert, is intellectually dishonest and dishonorable.” Hmmmm, maybe I’ll try this tactic on all my friends who disagree with me. If they disagree with me, then they are clearly being intellectually dishonest. Funny that you mention “logical grounds” right after you commit a clear ad hominem fallacy!

  3. kevin–
    let’s be clear. as much fun as it is to speak pejoratively, let’s make a stab at logic. my post was meant not to come down on any one side of the gun control debate (and, to be honest, i own two guns, shoot them as often as possible, and, on occasion, take the life of an animal with them, which i then consume, happily), but to castigate mr. will for his blatant strawmanning of dr. c and of the control issue on the whole. dr. c’s claim deserved a treatment commensurate with the time and reasearch he put into it, a luxury neither you nor mr. will were willing to extend. at least you confronted the issue straight on, not by weaking dr. c’s argument to such a degree in your presentation of it that it became easily assailed, as did mr. will. we’ve spoekn about bias on this site numerous times, often at length. in fact, there’s a link in the upper left corner of the site addressing that issue. you should check it out. none of our posts should be perceived as unecessarily burdened with value claims–because they’re not. as far as the second amendment is concerned, i think it is subject to the same limitations–the 9th amendment ones–as any other right. it seems that many americans take the first and second amendment as transcendent of any others, which cannot be the case. check the 9th amendment link i posted. it has a fairly significant legal history concerning the limitations of the rights “enumerated or otherwise,” limitations which the 2nd amendment is just a subject as any other. mr. will miscrepresented the entire debate and masqueraded as some magnanimous defender of rights while he did it. this was my point, not any sort of value claim about gun owners, of which i am and will always be one. even if the kerry pic is pandering, it still speaks to the fact that it’s not only right wingers that own guns and care about he right to bear arms despite the popular picture of libeerals and the push by the right wing to effeminize and emascualte them.

  4. kevin–
    checked your blog entry on dr. c’s column. that’s a solid confrontation and the article is proabably subject to that sort of critique, but that’s just not what we do here. will misrepresented what dr. c actually said, that’s why i called him on that, because that’s what we do.

  5. MattK: Study the legal history of the Second Amendment. Spend no less than one full week reading court decisions beginning with Bliss v. Commonwealth and ending with Nordyke v. King, (be sure to cover the Supreme Court’s Greatest Hits – Scott v. Sanford, U.S. v Cruikshank, Presser v Illinois and U.S. v Miller) then get back to me on the topic of intellectually honest and honorable judges.

    Am I a constitutional law expert? On this one, specific constitutional right, damned straight I am. I’ve studied it for twelve YEARS.

    PM: George Will did not misrepresent what Chemerinski wrote. “In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.” If I recall correctly, this is the same “logic” behind Chemerinsky’s support for the Supreme Court’s ruling in Kelo v New London. I don’t know what your take on that property-rights case was, but at least Erwin is being consistent in his support for the shredding of the Bill of Rights. Erwin thinks that the Second Amendment’s admontion that the right to arms “shall not be infringed” can be construed to support the complete banning of arms, so long as such a ban achieves “a legitimate government purpose.”

    Here’s a clue: the Bill of Rights tells the government what is NOT “legitimate government purpose,” and what it is to keep it’s grubby mitts OFF of. But Erwin doesn’t think so.

  6. kevin–
    i hardly think will addressed dr. c’s claim adequately. he said a lot more than that, and his argument was based on the ninth amendment language of enumerated vs. implied rights, which will, nor you, was even willing to touch. if dr. c thinks that 9th amendment limitations can be construed to ban the ownership of guns, then, in my opinion, he’s wrong and he is a parentalist–but there’s no way that conclusion can be reached from either your post here or will’s one sentence treatment of will’s argument. obviously, you’ve read a lot more of dr. c than have i; if he’s arguing against banning uns on the whole as some form of paternalist, then i would disagree, but once again, that is not the aim of this site. we do logical analyses of poltical media, not political, dogmatic, or personal convction based refutations of other’s claims.

  7. PM, of what point is pursuit of “9th Amendment limitations” when the Second Amendment actually enumerates a “right to keep and bear arms”? The 9th Amendment purports to protect “other (rights) retained by the people.” What “other right” does Chemerinsky think the 9th protect that overrides the right to arms? I’ve read the piece. I fisked the piece. The Ninth Amendment isn’t mentioned. Chemerinsky’s argument is that the Second Amendment “creates” or “bestows” a right to arms, thus the government has the power to remove that right. He knows better. The Founders believed that right, as well as the right to freedom of speech, freedom of religion, etc, to predate the formation of our polity, but Erwin repeats the “create” or “bestow” assertion several times. The purpose of the Bill of Rights was to set limits on the new goverment – “beyond this ye shall not venture,” but Chemerinsky argues that government can venture any damned place it pleases so long as its for “legitimate purpose.” I realize that you don’t do this kind of analysis, but I do. Will picked out the pertinent paragraph and described Chemerensky’s position accurately.

    Will’s piece wasn’t about Chemerinsky’s op-ed. He merely pointed to it to illustrate his own position. There have been at least a dozen other breathless, outraged, twisted, misleading op-eds on the Parker decision he could have used, but none by so significant a legal scholar.

    You said yourself: “Perhaps I’m uninformed, but I was unaware that gun control had ceased to be a political issue.” Yes, you’re uninformed. Don’t feel bad, most people are. Whatever happens with the future of the Parker case, it’s going to bring the topic back to a boil – on both sides.

    Stipulated: You don’t like George Will. I don’t care for Chemerinsky. But George wasn’t wrong about Erwin on this one.

  8. “Stipulated: You don’t like George Will. I don’t care for Chemerinsky. But George wasn’t wrong about Erwin on this one.”

    i respectfully refuse your stipulation. this site has nothing to do with whether nor not i like or dislike george will. it’s got everything to do with argument and his inability to conduct it properly. we analyze fallacious claims, sometimes, even by people we do like, or at least respect.

    “The Ninth Amendment isn’t mentioned.”

    here’s where we can talk about implicit claims and explicit claims. the latter is what you were looking for in dr. c’s article and you’re right–it isn’t there. the former, however is there, in passages like this:
    “No rights are absolute. Even the First Amendment, which is written in the seemingly absolute language that Congress shall make “no law” abridging freedom of speech or religion, allows government regulation.

    Therefore, under the individual rights approach, there still is the question of what types of government regulations are appropriate.”

    that’s the part of the 9th Amendment you’re ignoring. it’s not just the idea of implicit rights, but the question of at what point do rights unenumerated in the Constitution become federally enforceable, as per James Madison (see my link to the 9th Amendment page). dr. c’s bringing up that question, adn you and mr. will are ignoring it, thus the strawman. do people have an implicit right to feel safe in their homes and neighborhoods and, if so, is it incumbent upon the government to ensure that right by banning guns? now, dr. c answers that question in a much different way than you or i would, but that’s beyond the scope of my analysis of will’s piece. that’s why i stopped at idenitfying will’s obvious strawmanning of dr. c’s claim. to go any further would have been outside of what we try to do here.

  9. Gee. There is a right to free speech. But this involves certain obvious and common-sensical limits. The same for freedom of religion and so on. There is nothing strange about limiting those rights by certain policy considerations. Whether those policy considerations are good ones, of course, needs to be argued.

  10. “Yes, you’re uninformed. Don’t feel bad, most people are.”

    yes. i realize that. i had a good teacher:
    “And how is not this the most reprehensible ignorance, to think that one knows what one does not know? But I, O Athenians! in this, perhaps, differ from most men; and if I should say that I am in any thing wiser than another, it would be in this, that not having a competent knowledge of the things in Hades, I also think that I have not such knowledge.”
    –Socrates in Plato’s “Apology”

  11. “Will picked out the pertinent paragraph and described Chemerensky’s position accurately.”

    one paragraph doth not an argument make.

    “Will’s piece wasn’t about Chemerinsky’s op-ed. He merely pointed to it to illustrate his own position.”

    enter strawman.

  12. “…do people have an implicit right to feel safe in their homes and neighborhoods..?”

    No, they don’t, not one that the government has the power to protect. Trying to legislate to meet a “feelings” based right? Where does that lead? Whose “feelings” take precedence? Do people have a “right” to “feel safe” from natural disasters? Do they have a right to “feel safe” from having their homes taken from them because the State can earn a higher tax income if that land is given to developers? Do they have a right to “feel safe” from home invasion by police officers who perform a “no-knock” entry on the wrong house? Do they have a right to “feel safe” that a suicide bomber won’t blow their family to pieces at the pizza parlor?

    Sorry. Diane Feinstien’s “feel safe” philosophy is for the birds.

    Human beings have rights, but their feelings are their own. The government is inhibited from banning guns by the Second Amendment. It is, as 9th Circuit judge Alex Kozinski put it most eloquently:

    “…a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”

  13. Madison, from his Introduction of The Bill of Rights @

    “It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished.”

    sounds like legislation based on feelings to me, but let’s read further, perhaps i’m mistaken…

    “still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is honorable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes and expressly declare the great rights of mankind secured under this constitution.”

    if california had been a state, perhaps they might be ridiculing Madison as a “Hollywood Liberal,” what with all this talk of feelings and wishes and such. Perhaps a bit more reading will dispell this myth…

    “That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.”

    so, perhaps we do have a right to happiness and safety, or at least Madison intended for us to. But wait, there’s just a bit more here:

    “The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.”

    wow. that Madison is on fire. wish i could have been there to see it. especially the look on Jefferson’s face when he said that last part.

    “It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

    I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.”


    “Besides this security, there is a great probability that such a declaration [of implicit rights] in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.”


    “I think it will be proper, with respect to the judiciary powers, to satisfy the public mind of those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the Supreme Court of the United States, upon an appeal on an action for a small debt. To remedy this, declare that no appeal shall be made unless the matter in controversy amounts to a particular sum; this, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped, will quiet and reconcile the minds of the people to that part of the constitution.”

    there he goes with all that feelings talk again…

    “if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.”

    huzzah, Mr. Madison.

  14. not that Madison was alone in these sentiments.

    John Adams, from a letter to Mercy Otis Warren, April 16, 1776:

    “Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics. There must be a positive Passion for the public good, the public Interest, Honour [sic], Power and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real Liberty; and the public Passion must be Superiour [sic] to all private Passions. Men must be ready, they must pride themselves, and be happy to sacrifice their private Pleasures, Passions, and Interests, nay, their private Friendships and dearest Connections, when they stand in Competition with the Rights of Society.”

    and Thomas Paine, from “The American Crises: The Last Crisis XIII:”

    “The states of Holland are an unfortunate instance of indivdual sovereignty. Their disjointed condition exposes them to numerous intrigues, losses, calamities, and enemies; and the almost impossibility of bringing their measures to a decision, and that decision into execution, is to them, and would be to us, an endless misfortune.

    It is with confederate states as with individuals in society; something must be yielded up to make the whole secure.”

    democracy is give and take. how and why this should happen should be the national debate.

  15. Kevin, my point was logical. The judges in the majority in those decisions could all be wrong (i.e. came to their conclusions for poor reasons, which means that it is possible that I could agree with your position on gun control), however what you did in the specific instance I reference is make a global character claim about the judges that could possibly be involved in a future court decision. You basically argue that the majority of judges that could be involved in the case will be intellectually dishonest and dishonorable. Therefore, they will come to a poor decision that goes against what you believe. The argument is fallacious. It commits the ad hominem fallacy. There is link on the left to examples of this kind of fallacy. Even if they truly are intellectually dishonest and dishonorable your argument would still be fallacious because it would now be circular. I originally ignored the latter fallacy because I was being charitable to your position.

    Obviously, knowing all the court cases involving Second Amendment issues does not make you a Constitutional law expert, though it does make you very knowledgeable about cases involving Second Amendment issues. It probably would be helpful to begin by first considering the different theories of legal reasoning and how holding different views on this matter can affect the way a judge (or anyone) views and interprets a document like the Constitution. For a good beginning link discussing this issue: There are other good links at the end of the article.

  16. Dear Idiotprogrammer,

    Thanks for the kind words. But we’d have to take issue with your assessment of Will. No one claims that he consciously misrepresents anyone’s positions. We can’t really assess that. We can only claim that he does. And he does indeed misrepresent the positions of his rhetorical opponents all of the time. Check the archives on that. For someone of his alleged stature and influence, we find that reprehensible. Futhermore the brevity of the average op-ed is no excuse to make sloppy or invalid arguments. If you can’t find a way to do it fairly, I would say you shouldn’t do it at all. But again, thanks for the kind words. I can’t figure out how to leave a comment at your site.

  17. What I felt to be blogworthy was the fact that anyone was disputing Chemerinsky’s argument. Thanks to Will for pointing that out. I viewed this as more of an informational article (i.e, “there is some debate about an issue liberals regard as settled”) than a persuasive one.

    Newspaper columns require brevity and a certain style that doesn’t spend too much time explaining background material or arguments. I don’t know if you’ve read Will’s books, but they read a lot differently than his columns (and yes, they are biased in their own ways).

    One more fallacy from Will (I don’t know what you would call it). Your opponent is always the one playing partisan politics (whereas the politicians favoring your viewpoint are acting from honorable intentions). I actually accept Will’s contention that the court ruling could turn gun control into a political issue again…with possibly unintended consequences. But why does Will make it sound that the Democrats are scheming to avoid discussing the issue?

  18. Dear Robert,

    Thanks for the comments. I rescued it from spam. I don’t know why it’s doing that lately and yes you’re right I should upgrade.

    On the other matter, there’s a good reason for our focus on conservative or right wing types. We explain it all under the heading “a note about bias”. Read that and tell us what you think. Later there will be a piece about what it is fair to expect of a newspaper column. I think one should expect a lot. It’s sloppy, superficial, and nasty reasoners like Will who have accustomed us to expect less. Will cannot bring himself to admit that who he calls liberals (a view he consistently misrepresents) have real arguments.

    I wouldn’t put Michael Moore in the same category as well. He describes himself as a partisan advocate who writes op-ed movies. They’re not documentaries and sure they include claims that stretch the truth in places I’m sure. But that’s a different genre. While Frank Rich is entertaining, he belongs to the Maureen Dowd school of opinion writing–just say mean things in an entertaining way. It’s not the same thing as the argumentative op-eding.


  19. robert,
    thanks again for your comments. if i might add a little to what jc is saying, the problem with much of will’s writing is that he, as you’ve noted, distorts his opponents positions in order to embellish his position and those he supports. that’s a strawman fallacy, that is, twisting your ooponent’s argument into a position more easily defeatable than their actual position. i don’t know dr. c’s writings, nor do i know him, but i know how to read. will nutpicked dr. c’s article to find the chestnut that best supported his claim and then used it to essentialize dr. c’s position into something it was not. if dr. c has held the paternalist position in other writings, then will should indicate that, but he didn’t and rarely does. we didn’t intend to make a larger comment about gun control rights. again, that’s not the type of commentary we do. however, the response we’ve gotten i think proves my initial point about will’s piece–he’s fabricated his underlying premise (that gun control is a long dormant issue now reawakened by this court decision) out of thin air, which is an obtuse sort of strawman fallacy, that is, creating an opponent of your own liking when there is not an actual one there.

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