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Tuesday, December 04, 2007

The Heller case: Law or Culture?

In Cass Sunstein's recent review of Mark Tushnet's book, "Out of Range:  Why the Constitution Can't End the Battle Over Guns", the former writes:

Tushnet's punch line is that the real division is less legal than cultural: it involves not the founding era or the constitutional text, but the sharp and emphatically contemporary divide over the role and the meaning of firearms. . . .

Tushnet concludes that the dispute over the Second Amendment, and gun- control laws as a whole, must be understood in terms of "the culture wars." Zell Miller put it well in 2001, suggesting that debates about gun policy are "about values ... about who you are and who you aren't." Drawing on work by Dan Kahan, Tushnet says that we might try to "shift our conversation away from polarizing debates about what the Constitution means and what sorts of gun policies actually reduce violence, and toward a respectful acknowledgment of the disparate visions of the good society that pervade American society." . . .

Reading this, I was reminded of an exchange, a few years back, on NBC's The West Wing:

Sam: . . .  I am so off the charts sick of the gun lobby tossing around words like personal freedom and nobody calling them on it. It's not about personal freedom and it certainly doesn't have anything to do with public safety; it's just that some people like guns.

Ainsley: Your gun control policy doesn't have anything to do with public safety, and it's certainly not about personal freedom. It's about, you don't like the people who do like guns.

Posted by Rick Garnett on December 4, 2007 at 09:59 AM in Constitutional thoughts | Permalink


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I loved that exchange too, Rick. And as much as the West Wing was maybe my favorite show ever, I have to admit that its weakness was that it rarely gave the conservative side a fair shake -- except for times when Ainsley was involved. Her character should've been kept around longer.

Posted by: Scott Moss | Dec 6, 2007 11:19:07 AM

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