American University Law Review
Fall, 1992 Page 53
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THE RHETORIC OF GUN CONTROL
Andrew Jay McClurg *Copyright © 1992 by The American University Law Review; Andrew Jay McClurg
TABLE OF CONTENTS
Introduction
I. Reason: The Missing Link in Gun Control Rhetoric
II. The Fallacies of Gun Control Rhetoric
A. Fallacies of Emotion
1. Appeals to fear and sympathy
2. Appeals to pride and popular opinion
3. Appeals to improper sources of authority
4. Ad hominem
B. Fallacies of Diversion
1. Hyperbole
2. The slippery slope
3. The straw man and the red herring
4. Faulty analogies
C. Fallacies of Proof
1. One-sided assessment
2. Causal fallacies
3. Arguments from ignorance
Conclusion
[Page 54]
Despite all the rhetoric from the gun lobby, the fact is that the vast majority of law enforcement officials and most of the American public supports [the Brady] bill. [1]
-- Representative Thomas DowneyDespite all the heated rhetoric about handguns, the Brady bill is not a solution to our crime problem. [2]
-- Representative Jerry CostelloINTRODUCTION
This Article is about rhetoric. In a democratic, pluralistic society, action on any issue of social importance depends on acceptance of the action by many different audiences. Acceptance depends on the audiences being persuaded as to the rightness of the action. Persuasion depends on effective rhetoric.
When Congress debated the Brady bill, [3] a bill that imposes a waiting [Page 55] period and background check for handgun purchases, rhetoric flowed freely on both sides. As reflected in the introductory quotes, each side chastised the other for using rhetoric. There is nothing improper or indecorous, however, about using rhetoric in a debate. Although often characterized pejoratively, "rhetoric" is not a pejorative term. It is simply a label for the discourse of practical argumentation. [4] To accuse an opponent in an argument of engaging in [Page 56] rhetoric is to accuse the opponent of nothing more than trying to persuade the audience that the person's position is the better one.
This does not mean that all rhetoric is above reproach, for there is good rhetoric and bad rhetoric. Good rhetoric is grounded in logic and sound reasoning. Bad rhetoric is grounded in fallacy. A fallacy is a type of incorrect argument. [5] A fallacious argument is one that appears to be correct but proves upon scrutiny to be logically invalid. [6] Examples range from the familiar, such as "circular reasoning" or "begging the question," to the esoteric, such as "affirming the consequent" and the "undistributed middle term." [7]
Fallacious reasoning is bad rhetoric, but not because it is ineffective [Page 57] as a tool of persuasion. [8] In fact, quite the contrary is true. Sadly, the lesson learned from the study of rhetoric is that while being "right" is helpful it is not necessarily a prerequisite to winning an argument. As demonstrated in this Article, fallacies can be powerful tools of persuasion. A skilled sophist may employ fallacies to divert the attention of listeners from the real issue being debated, lead them to accept false premises or ignore conflicting evidence, cause them to reason by emotion rather than by logic, or even forestall them from questioning the speaker's position altogether. If effectiveness was used as a barometer for evaluating rhetoric, the "good" and "bad" labels probably would have to be reversed.
Fallacies are bad rhetoric because they lead to bad decisionmaking. The essential premise of this Article is that it is better to make decisions based on straight thinking than on crooked thinking. [9] While this may seem to state the obvious, an examination of the rhetoric used in virtually any political debate shows that we usually do not abide by this principle in the arena of public decisionmaking. As Jeremy Bentham documented more than one hundred and fifty years ago, fallacies are common in the discussions of important social issues in democratic systems. [10] Indeed, there seems to be a positive correlation between the importance of an issue, at least as perceived by the populace, and our readiness to resort to bad rhetoric in debating it.
Gun control is a premiere example of such an issue. As demonstrated by the debate over the Brady bill, few issues are capable of generating such intense rhetorical conflict among the American people. As with other controversial issues such as abortion and affirmative action, opinions about gun control are almost always passionately held and in diametric opposition.
Regrettably, while there is room for reasonable persons to disagree about gun control, [11] we have as a nation chosen to disagree in [Page 58] a most disagreeable manner. Excepting a limited number of scholarly commentaries, [12] discourse on gun control has been plagued by bad rhetoric. The Brady bill debate exemplifies the prevalence of poor rhetoric and defective reasoning in gun control argumentation. At its best, the debate over the Brady bill seldom rose above the level of shrill hyperbole. [13] At its worst, the discussion sank into the muck of name-calling and non sequitur. [14] [Page 59]
This Article exposes the fallacies in the rhetoric of gun control. Concentrating on the debate over the Brady bill, the Article guides the reader through the treacherous terrain of gun control argumentation by identifying and analyzing the wide variety of reasoning defects employed by participants in the debate. The Article is process oriented. No attempt is made to address the ultimate question of whether the nation's gun policies should be reformed. Until we first reform the debate, we cannot hope to approach law reform in a rational way.
In analyzing the rhetoric of gun control, I have attempted to be fair and balanced, attacking the flaws in reasoning on both sides of the debate. As a proponent of gun control, I initially thought this approach would prove difficult. Gun control advocates like to believe that only those who oppose gun control are guilty of deceptive and fallacious rhetoric, but scrutiny of the Brady bill debate reveals that this assumption is false. [15] The pro- Brady bill forces contributed [Page 60] more than enough bad rhetoric to the gun control debate to allow for relatively evenhanded treatment of the two sides of the issue. [16]
The importance of dissecting gun control rhetoric extends beyond the issue of gun control, or even law reform in general. Understanding rhetoric is a process every student of the law should care about. Rhetoric is the art of persuasion and persuasion is the lawyer's stock in trade. Advocates cannot be completely effective unless they first master the tools of advocacy. Learning to distinguish between good rhetoric and bad rhetoric, that is, learning to recognize and identify flaws in reasoning, is an essential part of every lawyer's education.
I. REASON: THE MISSING LINK IN GUN CONTROL RHETORIC
The foundation of reasoned, rational discourse concerning gun control is surprisingly thin. Many Americans would be shocked to learn that an issue they consider vitally important [17] is not treated as important by those with the power to make it so. For example, the United States Supreme Court has analyzed the Second Amendment [Page 61] in a substantive context in only one case this century [18] and in only four cases in history. [19] And as Professor Sanford Levinson noted in a recent article, the Second Amendment appears in leading constitutional law casebooks only as part of the text of the Constitution, which is generally reprinted in the casebooks' appendices. [20] He further observed that constitutional law treatises devote only minimal attention to the Amendment. [21]
This deficiency in what I call professional discourse makes the issue of gun control disturbingly unique. Discourse concerning issues of law reform usually occurs at two levels: popular and professional. Popular discourse is discourse among and for dissemination to the populace and includes lunch room banter, letters to the editors of newspapers and magazines, and congressional floor debate. Professional discourse consists of legal argument, judicial opinions, and scholarly commentary. Such discourse generally occurs in a more carefully reasoned manner.
There is both less room and less cause for the appearance of fallacies in the context of professional discourse. For example, although fallacies of reasoning are not uncommon in judicial decisions, [22] judges at least try to justify their results using sound logic. [23] Judges [Page 62] are prevented from succumbing too readily to fallacy by their legal training and ethical responsibilities, [24] and because their audience, which consists largely of lawyers and other judges, demands good reasoning. [25] Moreover, because theirs is an educated audience that is capable of and willing to digest complex reasoning, judges have less cause to utilize fallacies to prove their points. Judges can write opinions knowing that their rhetoric will not be evaluated solely on the basis of a ten-second "sound bite." [26]
The same conditions hold true with respect to other professional participants in the law reform process. Law students are trained to [Page 63] reason well. [27] They learn early on that their professors will not accept emotional or "gut" reactions that are unsupported by reasoned argument. Similarly, judges demand that lawyers present sound arguments to support their positions. While fallacies no doubt occur, reason predominates.
As to most important law reform issues, discourse occurs simultaneously at both the popular and professional levels. While the public is debating abortion, for example, lawyers are arguing, judges are deciding, law students are studying, and scholars are writing about real cases involving abortion. This professional discourse serves as an anchor of reason in the debate; that is, no matter how bombastic or outrageous the popular discourse becomes, a foundation of rationality exists in the professional dialogue that is available to guide the decisionmaking of those vested with power to reform the law.
In contrast, the gun control debate lacks an adequate body of professional discourse, [28] leaving us with only the "low road" of popular discourse to guide us toward resolving this vital issue. As seen in this Article, it is a very low road indeed. In recent years, the gun control debate has taken on the "anything goes" appearance of a professional wrestling match. The rules of intellectually honest debate are ignored. Illicit stratagems designed to gain competitive advantage are as likely to be cheered as jeered. As a member of the audience watching this ugly contest, I have never been quite sure whether to sit back and laugh at the absurdity of it all or to jump in the ring swinging a chair. I finally concluded that a debate in which fallacy so completely obscures reason is not simply unproductive, it is a dangerous way to decide an issue as important as gun control. Regardless of one's views concerning gun control generally or the Brady bill in particular, the defective arguments catalogued in this Article should give the reader good reason to pause and reassess the means by which the American people will decide the future of guns in this country.
II. THE FALLACIES OF GUN CONTROL RHETORIC
The fallacies of gun control rhetoric tend to be informal rather than formal fallacies. Formal fallacies are arguments that are defective [Page 64] because of improper form, without regard to content. [29] Argument form is dictated by the rules of logic developed in the context of Aristotelian syllogisms. [30] Syllogisms are analyzed by logicians in terms of their validity rather than their truth. In formal logic, validity depends only on the form of the argument. Content is irrelevant. [31] In the world of practical argumentation, however, the content of an argument is vital.
To illustrate, suppose that a person opposed to gun control advanced the following syllogistic argument:
The Second Amendment protects an individual's right to keep and bear any type of arm. A nuclear weapon is a type of arm. Therefore, the Second Amendment protects an individual's right to keep and bear nuclear weapons.
This syllogism is perfectly valid from a formal standpoint, yet any audience would most likely reject the argument because the content is flawed. The audience would dispute the truth of the major premise that the Second Amendment protects an individual's right to possess any type of arm. This illustration demonstrates that while content is not a concern of formal logic, content is crucial to the soundness of practical argumentation. The label used to denote all such content-based fallacies is that of "informal fallacy."
No attempt has been made to classify the fallacies evaluated in this Article in a rigorously systematic way. As De Morgan said: "There is no such thing as a classification of the ways in which men may arrive at error: it is much to be doubted whether there ever can be." [32] Several scholars have made efforts to categorize fallacies, but each attempt has had rather arbitrary results. [33] This is not surprising. [Page 65]
Because we do not think in fixed ways, there is no reason to believe the reasonings we construct can be classified in fixed ways. [34] Moreover, any attempt to classify fallacies is immediately stalled by the fact that a single argument may contain several fallacies. This overlap necessitates cross-divisions that invariably dilute the classification scheme. Accordingly, this Article adopts a simple method of classification, dividing the fallacies of gun control into three broad categories: fallacies of emotion, fallacies of diversion, and fallacies of proof. Within each category, several specific fallacies are discussed.
A. Fallacies of Emotion
1. Appeals to fear and sympathy
In arguing against the Brady bill on the House floor, Representative Barbara Vucanovich, a Republican from Nevada, invoked the tragic episode of serial murders that occurred in Gainesville, Florida in the summer of 1990. [35] She posed the following query: "If the Brady bill were law, who knows how many more young women would be dead in Gainesville because they had to wait to protect [Page 66] themselves." [36] Then, in almost the same breath, she urged her fellow representatives "not to let their judgments be clouded by the antigun lobby's emotional banter." [37]
The representative should practice what she preaches. Conjuring up the nightmarish image of defenseless coeds being butchered by a mad killer was a blatant attempt to use emotion to generate opposition to the Brady bill. Appeals to emotion are fallacious because emotions are irrelevant as a basis for deciding an issue. While emotions have psychological relevance in that they have a persuasive impact on the human mind, they have no logical relevance because they are incapable of establishing the truth of conclusions. [38] Proving truth requires the mustering of convincing evidence and not simply the exploitation of emotional sensitivities. [39] Emotions may move us to act, but reason should control the course of that action. [40]
Vucanovich committed at least three fallacies of emotion in one sentence: argumentum ad odium (argument directed to hatred), argumentum ad metum (argument directed to fear), and argumentum ad misericordiam (argument directed to pity). [41] Her appeal to these emotions was particularly irrelevant because a handgun waiting period would have had little effect on the events in Gainesville. There is no indication that any of the victims was killed because a waiting period kept her from purchasing a handgun, or that any potential victim used a handgun to repel, apprehend, or kill the killer. Vucanovich was simply attempting to provoke opposition to the Brady bill by fabricating an association between the bill and the strong emotions aroused by the serial killings. Vucanovich played on our hatred and fear of serial murderers, as well as our feelings of pity for the murder victims. [42] None of this, however, has anything to do [Page 67] with whether the Brady bill should become law.
Unfortunately, Vucanovich's salvo was not unique. Fallacies of emotion are one of the hallmarks of gun control rhetoric. Vucanovich's emotional banter was no worse than some of the gun lobby's other scare tactics. After the 1992 Los Angeles riots that followed in the wake of the jury's decision to acquit most of the police officers charged with using excessive force against motorist Rodney King, the National Rifle Association (NRA) employed a four-page advertisement to boost membership by shamelessly exploiting the fear and horror generated by images of the violence. [43] The advertisement, featuring color pictures of looters and burning buildings, asked: "Must your glass be shattered? Must your flesh and blood be maimed? Must your livelihood be looted? Must all you've built be torn down? ... What will it take before you stand up with the one group that will stand for no more?" [44] Such tactics are not new. In 1988, the year Congress first considered the Brady bill, the NRA paid for full-page newspaper advertisements that were designed to incite people's fear of being unarmed in an increasingly dangerous and violent America. [45] One advertisement depicted a woman's mangled locket under the headline: "Your mother just surprised two burglars who don't like surprises." [46] Another showed a high-heel shoe with the heel broken off. It read: "He's followed you for two weeks. He'll rape you in two minutes." [47]
Fear is a great motivator, but in the gun control debate fear cuts both ways. It may be dangerous for potential victims of criminals to be unarmed, but this is partly because many criminals are armed. Not surprisingly, then, the strategy of preying on fear of violent crime has never been the exclusive province of the gun lobby. Consider a law review article adapted from a speech given by Senator Edward Kennedy urging passage of the Handgun Control Act of [Page 68] 1981. [48] The Senator's essential point was that we need legislation to control handguns because of the prevalence of handgun violence. Rather than express this sentiment in such prosaic terms, however, he opted for loaded words and phrases like "fusillade of bullets," "carnage," "assassin," "fears and ... tears," "haunted," "end the arms race in our neighborhoods," "relentless toll climbs higher," "epidemic," and "plagues the Nation." [49] And this was all in just the first four paragraphs! Emotive words and phrases such as these are designed to prejudice an argument by illicitly achieving a more dramatic effect than could be attained through reason alone. [50]
While Senator Kennedy's plea went unanswered, [51] other emotional appeals, drawing from an ever-expanding inventory of gun-related horrors, have proven more effective in tipping the balance of fear toward the side of gun control. In the Brady bill debate, proponents used grisly anecdotes and numbing statistics to convince the American people that there is more to fear from criminals having guns than from non-criminals not having guns. [52] No stratagem capable of evoking strong emotions was overlooked. Indeed, the name of the bill itself served as a powerful emotional symbol. Handgun Control, Inc., the Washington based anti-gun lobbying organization led by chairwoman Sarah Brady, exploited popular sympathy for Jim Brady by running advertisements showing Brady in his wheelchair, saying "[h]elp me beat the gun lobby." [53] Some members of Congress buttressed their support of the bill with inspired testimonials to Jim and Sarah Brady. [54] Others set their emotional sights more broadly, mourning the plight of beleaguered old people, innocent children, terrorized families, and police officers on [Page 69] duty. [55]
These references to innocent firearm victims, while relevant to the overall gun control debate, are fallacious arguments in support of the Brady bill. They would be germane to the Brady bill controversy only if some logical connection could be shown between the victims' plight and the lack of waiting periods or background checks for handgun purchasers. Few participants in the debate attempted to establish any such connection, however, probably because it would be difficult to do. [56] For one thing, the Brady bill would not affect the estimated 200 million firearms [57] already in circulation. [58] Whatever good the Brady bill might do, no one can seriously contend that the bill could, by itself, reduce the level of gun violence in [Page 70] America. [59] The connection Brady bill supporters sought to make between the legislation and senseless handgun violence was largely an emotional one a la Congresswoman Vucanovich or Senator Kennedy, rather than a logical one. [60]
2. Appeals to pride and popular opinion
Not all the fallacies of emotion are negative in tenor. Resorting to the fallacy of argumentum ad populum, both sides in the Brady bill contest manipulated positive popular sentiments as well as negative ones. There are several variations of argumentum ad populum, which translates to "argument directed to the people." As used here, the fallacy refers to appeals to popular opinion that stimulate and excite the public to favor a particular position. [61]
Appeals to national pride and patriotism are particularly attractive strategies for politicians. The Persian Gulf War served as fertile ground for these types of appeals. For example, one House member argued that Congress should approve the Brady bill because "[a]s we learned in the gulf, the best way to defeat the enemy is to disarm him first." [62] Another representative urged his colleagues to "deal with handgun violence as quickly as we dealt with Saddam Hussein and his Republican Guard." [63] Not to be outdone, Brady bill opponents alluded to General Norman Schwarzkopf and Eastern European freedom fighters as reminders of the preciousness of freedom. [64] Recalling less recent symbols of patriotic pride, an NRA vice president, apparently with a straight face, asked, "What if they had to wait seven days to get their rifles to come to the Alamo and [Page 71] fight?" [65] Even references to apple pie made it into the debate. [66]
Again, the flaw here is irrelevance. American pride in our performance in the Gulf War has nothing to do with whether it is wise to impose a waiting period and a background check on handgun purchases. General Schwarzkopf and the Eastern European countries may be powerful symbols of freedom, but they have no connection to the wisdom or constitutionality of the Brady bill. As for the Alamo, ignoring the unfortunate result there, the Brady bill does not apply to rifles, to the military, or to the 200 million guns already owned by American citizens. Thus, Texans should fare well if attacked again from the south, even if the Brady bill is enacted. Each of these appeals to patriotism and national pride, while probably persuasive to a mass audience, missed the mark of reason by a wide margin.
3. Appeals to improper sources of authority
Positive emotions toward a position can also be engendered by appealing to popular personalities; that is, speakers can promote the credibility of their arguments by aligning themselves with persons of outstanding character and reputation who share their views. This is not fallacious if these authorities have specialized knowledge concerning the problems they address. It is quite proper to call on qualified experts to assist laypersons in making decisions concerning matters beyond their knowledge and experience. Lawyers, judges, and juries do it every day.
But where the person is not qualified as an expert on a subject, appealing to that person's judgment as a basis for deciding an issue commits the fallacy of argumentum ad verecundiam--an improper appeal to authority. [67] This is true no matter how well known or well reputed the person may be. Unless a person is an authority on the particular issue, the person's opinion should not influence the dispute.
While improper appeals to authority may seem too transparent to [Page 72] be beguiling, we nevertheless succumb to this fallacy every day. Otherwise, companies would not pay millions of dollars to popular entertainment personalities to secure testimonials for their products. If pop star Michael Jackson drinks Pepsi, it must be better than Coke. Comedian Jay Leno likes Doritos, so throw out the potato chips. Since athlete Bo Jackson wears Nike athletic shoes, they must be superior to those of major competitor Reebok (unless one happens to think more highly of the athletes who endorse Reebok than of Bo Jackson).
Perhaps the single most important factor influencing the passage of the Brady bill was Ronald Reagan's endorsement of the legislation. [68] Mr. Reagan had been a lifetime member of the NRA and was the first candidate for President ever endorsed by that organization. [69] When the former President said in "clear, unmistakable language" that he supported the Brady bill, [70] he deprived gun enthusiasts of one of their most effective and time-honored rhetorical weapons and handed an equally formidable one to the other side. [71] Haunted by the ghost of Willie Horton, Brady bill supporters, most of whom were Democrats, had to be wary of being portrayed as more concerned about gun control than about crime control. [72] But with Ronald Reagan on their side, no longer could it [Page 73] be said that only "liberals" favored gun control. [73]
The pro-Brady bill forces did not hesitate to capitalize on Ronald Reagan's support, as well as on that of former Presidents Nixon, Carter, and Ford. [74] It is astonishing, however, that Mr. Reagan's opinion on the issue should carry so much weight. Mr. Reagan is not an expert on gun control. He is not a criminologist or constitutional law scholar. He is simply a popular former President. It is doubtful that he rigorously studied any of the literature on the subject of gun control or the Second Amendment in reaching his conclusion to support the Brady bill. With due respect to Mr. Reagan, his opinion on the bill should carry about as much weight with the public as a popular entertainer's endorsement of a consumer product. Appealing to his judgment as a basis for deciding the issue was an improper appeal to authority. [75]
To further strengthen their shield against criticism that they are soft on crime, Brady bill supporters made good use of the fact that most major national police organizations endorsed the legislation. [76] This enabled them to project themselves as standing shoulder to shoulder with the nation's police officers in the war against violent street crime. [77] Appealing to the judgment of law enforcement associations on the issue was not completely fallacious because police officers have substantial experience in dealing with guns and gun [Page 74] violence. However, as American Civil Liberties Union Attorney David B. Kopel noted, to the extent the Brady bill raises constitutional issues regarding the proper interpretation of the Second Amendment, deference to police opinion is inappropriate. [78] The police, he reminded, are not noted for their dedication to protecting individual liberties. [79] On this point he is correct that unqualified deference to police organizations' judgment is unwarranted.
With Ronald Reagan, the police, and other stalwarts on their side, [80] the pro-Brady bill forces simply (if the pun can be forgiven) outgunned the NRA in the contest for popular support. Lacking the endorsements of presidents and major police organizations, Brady bill opponents were reduced to trumpeting such generic good will associations as "we have NRA members that are policemen, ministers, doctors, lawyers, scout leaders, little league coaches [, and so on.]" [81]
4. Ad hominem
Whatever either side lacked in positive emotional identifications between issues and personalities was made up for with negative connections. A time- honored rule of effective persuasion is that it may be more profitable to attack the arguer than it is to attack the argument. [82] This is the fallacy of argumentum ad hominem, or "argument directed against the man." [83] Few fallacies are more potent or more often employed.
Ad hominem works because of the emotional transference that occurs from listeners' feelings about a speaker to their feelings about [Page 75] his or her argument. [84] If an audience has a negative opinion about the speaker, that opinion is likely to carry over to the speaker's argument. For example, if one wanted to rebut Senator Edward Kennedy's support for gun control with an ad hominem attack, the argument might be: "I wonder if Senator Kennedy took any time out from his drinking and carousing to study this issue." [85] By generating negative emotions about the Senator, the speaker might also convince the audience to discount the Senator's views concerning gun control. The fallacy is that however distasteful Senator Kennedy's personal character and lifestyle might be to some, these factors are logically irrelevant to the soundness of his judgment about gun control.
Ad hominem comes in two basic forms. [86] The first form, abusive ad hominem, involves a direct attack on the speaker. [87] The attack may relate to the speaker's character, judgment, intelligence, or even the person's inability to dress properly. [88] The hypothetical involving Senator Kennedy is an example of abusive ad hominem. The second form of the ad hominem fallacy is circumstantial ad hominem, which [Page 76] consists of disparaging a person's views based on some relationship between those views and the person's special circumstances. [89] Both varieties of this fallacy were in plentiful supply during the Brady bill debate. [90]
The dominant theme of ad hominem attacks by the anti-gun control movement has been to paint supporters of gun control as soft on crime and as being more concerned with controlling guns than criminals. One extreme example of this during the Brady bill controversy was a song targeting gun control activists composed by the leaders of an organization called Jews for the Preservation of Firearms Ownership. [91] Sung to the tune of "America the Beautiful," the song, called "Ode to Felons," included these lyrics: "We are the friends of felons, we want felons to be free; To murder, rape and sell cocaine from L.A. to D.C." [92]
A less creative but equally mean-spirited way to attack advocates of gun control was simply to invoke the dreaded "L" word. [93] The Brady bill debate was peppered with references to the "liberal political conspiracy," [94] "ultra-liberal newspapers and congressmen," [95] the "liberals' anti-gun propaganda" [96] and--employing the most disparaging [Page 77] slur possible in the war of liberal versus conservative politics--comparisons to Ted Kennedy. [97]
Some ad hominem arguments promoting this theme were more subtle. In the House debate, one representative, without explanation or elaboration, obliquely commented, "It is ... interesting to note that a large number of supporters of the Brady bill oppose the imposition of the death penalty and other 'get tough' measures with criminals." [98] Why was this "interesting"? For the same reason it would be "curious." Used in this context, these terms are code words of disparagement. The representative's statement was a thinly veiled attempt to paint supporters of the Brady bill as liberals who are soft on crime. [99]
The campaign to brand all supporters of gun control as liberals shares characteristics of both abusive and circumstantial ad hominem. [100] It constitutes abusive ad hominem because in the wake of the 1988 Republican presidential campaign, being labeled a "liberal" had almost the same potency to malign as "commie" once did. [101] It is also circumstantial ad hominem because it is calculated to effect rejection of speakers' opinions based solely on their special circumstances, in this case, their political philosophies. The message is, "Well, what do you expect her to say? She's a liberal." The implication is that the speaker holds the opinion only because it is consistent with liberal political philosophy and not because she believes there are good reasons supporting it. To the extent that being a liberal can be equated with being a Democrat, this is not entirely fallacious as applied to members of Congress, because representatives often do vote the party line. [102] But in the context of the [Page 78] overall debate, it is certainly a fallacy to imply that a person supports gun control only because he or she is a "liberal." [103]
Another ad hominem theme of the anti-Brady bill forces was dictatorialism. Brady bill supporters were cast as "anti-Second Amendment" [104] and "power-hungry" [105] individuals for their perceived indifference to the Second Amendment right to keep and bear arms. A popular gun magazine published a list of "America's Top Ten, 'Gun Grabbers,' " which charged Brady-sponsor Edward Feighan, a Democratic representative from Ohio, with responsibility for "more legislative efforts to take away your rights than nearly anyone else in Congress." [106] The magazine leveled a similar charge against Ohio Senator Howard Metzenbaum, stating that he "can be counted on to try to destroy as many of your Second Amendment rights as he possibly can." [107]
At its lowest point, the debate degenerated into ugly name-calling. The anti-Brady bill side enhanced the nomenclature of gun control with such affronts as "bullet-heads," [108] "gun-phobes," [109] "stupid Jew," [110] and "lily-livered bleeding hearts." [111] Brady bill supporters were somewhat more subtle and restrained in their ad hominem attacks. Rather than come right out and call their opponents idiots, the bill's supporters repeatedly extolled the "common sense" of the legislation. [112] The implicit message was that opponents [Page 79] of the legislation lacked common sense. Rather than directly accuse House members who supported a weaker, NRA- backed substitute bill [113] of being liars and hoodwinkers, representatives attacked the substitute bill as a "blatant ruse," [114] a "sham," [115] and a "smokescreen." [116]
All of the fallacies discussed to this point encourage the listener to substitute emotion for reason as the basis for deciding an issue. The rhetorician attempts to manipulate us to form opinions about a proposal based on fear or pity, [117] or because it is the popular or patriotic thing to do, [118] or because we like and respect some other person who has expressed an opinion about the proposal and who has been presented to us as an authority on the subject, [119] or because we have negative feelings about a person who supports or opposes the proposal. [120] But these appeals divert us from focusing on the wisdom of the proposal, which is the only real issue. Whether a proposal is wise can only be determined after a reasoned analysis of [Page 80] relevant factors is undertaken, such as whether the proposal's goal will be beneficial to society, whether it will be possible to implement as a practical and legal matter, whether, if enacted, it will achieve its intended goal, and what the cost of implementation will be.
The cost of implementation includes not only the economic but also the human cost. In considering this factor, it is important to distinguish illicit appeals to emotion from legitimate appeals to humanistic values and moral judgments, [121] because the latter are vital components of the "logic" of public decisionmaking. Most law reform proposals will have consequences that affect the lives of real people. Decisions as to which consequences society wants to encourage, and which it prefers to avoid, necessarily depend on value preferences.
Thus, belief in the sanctity of human life and compassion for victims of crime make it proper to consider whether a waiting period for handguns will save more innocent lives than it will cost. Similarly, the interest in individual freedom to act makes it appropriate to consider whether a waiting period is an onerous burden on that freedom or only a minor inconvenience. In these examples, compassion and liberty are appealed to not as disconnected emotional symbols to incite adoption or rejection of the Brady bill, but as part of a reasoned inquiry concerning the consequences of the legislation. Will the legislation promote or inhibit desirable or undesirable values? In contrast, the fallacies discussed in this section are not designed to facilitate cognitive consideration of values. Instead they are intended to stimulate an affective state of consciousness that will preempt cognitive consideration of the issues.
B. Fallacies of Diversion
The fallacies of emotion discussed in the preceding section are diversionary in that they are intended to shift attention away from honest and valid reasoning about the merits of a proposal. However, because these fallacies all accomplish this by the same means, by appeals to raw emotion, they warranted treatment as a separate category. Emotion is the strongest bond tying them together.
The fallacies evaluated in this section are less well-connected. They are diversionary, but unlike the fallacies of emotion, they do not achieve diversion by appealing to some more powerful force. In other words, they do not operate by forsaking reason in favor of [Page 81] some other basis for making a decision. Instead, the fallacies in this section operate by distorting the reasoning process in ways intended to make the audience lose track of or ignore the real point. [122] This is accomplished through overstatement and understatement, by making irrelevant connections between premises and conclusions, and by drawing irrelevant analogies. [123]
1. Hyperbole
One of the most elementary fallacies of diversion is hyperbole. Hyperbole is an exaggeration for rhetorical effect. [124] To the extent hyperbole is used only to add ornament or flourish to speech, it is not objectionable and may even contribute positively to discourse. The world would be a drab place if we demanded that all discussion of public issues be couched in dispassionate and colorless terms. Imagery, euphony, adornment, and metaphor breathe life into language. When the issue is vital and the consequences of a decision are great, it may be necessary to speak bluntly and even stridently. In such cases, false euphemism would only detract from clear thinking. [125]
Nevertheless, audiences need to be wary of sophists who use hyperbole to overstate the clarity and certainty of their positions. By representing a matter as indisputable, a speaker may convince an audience that it is not necessary to think about a problem or may forestall disagreement from those who do think about it. [126] Lawyers and judges are experts at accomplishing this by using a single word or phrase, such as "clearly," "plainly," "obviously," "absolutely," "completely," or "it is axiomatic." [127]
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One of the most prominent issues in the Brady bill debate was whether the legislation would accomplish what it was intended to accomplish; that is, whether waiting periods and background checks would really prevent criminals from obtaining guns. Opponents of the measure asserted that the legislation would not do this and sought to bury any doubts about the question under an avalanche of hyperbole. They made bold assertions that the law "would have absolutely no effect upon criminals," [128] "will do absolutely nothing to curb violent crime," [129] "would do nothing to prevent criminals from obtaining guns," [130] "will not prevent a single criminal who wants a handgun from getting one," [131] and "would do nothing to curb the incidence of crime and violence on America's streets." [132] "Predicting," some wise person once said, "is a risky venture, especially with regard to the future." The truth is that no one knows what effect the Brady bill will have on gun violence. Each of the claims listed above is fallacious because it represents a matter as certain when in fact the matter is largely speculative. [133] This observation would be true even if the predictions proved to be accurate. In [Page 83] other words, the fact that a speculative prediction turns out to be true does not change the fallacious nature of the prediction at the time it was made.
The converse of using hyperbole to overstate a position is employing deprecatory hyperbole to understate it. As overstatement is used to bolster a speaker's position, deprecatory hyperbole is used to minimize the weight of competing evidence or arguments. Deprecatory hyperbole consists of such words as "merely," "simply," or "only."
The most notable illustration of this fallacy in the Brady bill debate involved the same issue discussed above: whether the law would prevent convicted felons from obtaining guns. The Brady bill would apply only to handgun purchases from licensed firearms dealers. [134] Thus, the evidence most relevant to predicting the impact of the law comes from studies showing the percentage of convicted felons who obtain handguns from conventional retail outlets. Figures cited in the gun control debate on this point ranged from twelve to thirty percent. [135] Brady bill backers viewed these statistics as providing support for the legislation. [136] Opponents of the bill, however, minimized the significance of the numbers by framing them in deprecatory hyperbole. A Senator argued that of all the guns acquired by criminals, "only about 12 percent ... came from stores." [137] Similarly, a newspaper editorial stated that "only one-sixth [of convicted felons] obtained their weapons in a retail transaction." [138] And a criminologist emphasized that a Florida study showed "only thirty percent of handgun murderers and assaulters reported acquiring their guns from dealers." [139]
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It is entirely possible, of course, that these were not intentional attempts to fallaciously depreciate the statistics, but instead were honest value judgments regarding the benefits of the Brady bill as measured against its costs. In either case, the effect was the same. Use of the word "only" worked to understate the magnitude of the numbers. When the percentages are converted to absolute numbers, they seem to favor the pro-Brady bill side. Accepting that "only" twelve to thirty percent of convicted felons purchase their handguns over the counter means that from 12,000 to 30,000 of every 100,000 handguns acquired by convicted felons would be covered by the Brady bill. [140] Regardless of the speakers' intent, the attempt to minimize these numbers by use of the word "only" constituted fallacious deprecatory hyperbole.
2. The slippery slope
A specialized application of hyperbole with great relevance to gun control consists of attacking a proposal by raising the spectre of terrible results that will follow if the proposal is adopted. In classical terminology, this is the "slippery slope" argument. [141] In this type of argument, any restriction, no matter how harmless in itself, is [Page 85] subject to being assailed as "[t]he camel's nose ... in the tent." [142] Because the strategy has nothing to do with the reasonableness of a particular gun control measure under consideration, it is always available.
So it was in the contest over the Brady bill. In the end, the crux of the dispute over the legislation was the provision establishing a waiting period to purchase a handgun. [143] While some Brady bill opponents attacked waiting periods as onerous burdens on law-abiding gun purchasers, [144] they did not succeed in generating much public outrage in this regard. A 1991 Gallup poll showed that eighty-seven percent of the American people favored a national waiting period for handgun purchases. [145]
Perhaps in recognition of this popular support for waiting periods, many Brady bill adversaries resorted to the slippery slope strategy. Under this approach, waiting periods were no longer the issue. Instead, members of Congress were told that they were voting on "just the beginning of a flood of restrictions," [146] "the first step toward eliminating our second amendment rights," [147] "the first step in the total disarmament of the American populace," [148] and "the ugly foot in the door." [149] These slippery slope arguments diverted the focus of the debate away from the merits of waiting periods by drawing noisy attention to other, more severe restrictions that were not actually at issue.
Was this fallacious? The consequences of a proposal are certainly relevant to deciding whether to adopt it. One potential consequence of imposing a reasonable restriction on a constitutional right is that it may represent the proverbial "first step" toward the next [Page 86] restriction, which may be an unreasonable one. However, this concern is valid only if relevant empirical facts establish some real likelihood that the next step will in fact be taken. [150] To the extent an argument raises exaggerated fears of an uncontrolled tumble down the slippery slope, with no evidence realistically supporting those fears, it is fallacious. It crosses the line from a legitimate concern about a proposal's consequences to something that has been referred to as the fallacy of the "unnecessary parade of horribles." [151]
The question of where to draw the line on the slippery slope is a problem in virtually all decisionmaking. [152] Usually, there is no clear point demarcating where the line should be drawn. Nevertheless, public decisionmakers must draw lines somewhere, even if the lines are arbitrary, or they abdicate their decisionmaking responsibility. When individual rights are implicated, line placement is determined by balancing the rights of individuals against the interests of the community. No right emerges from this process absolute.
Nor should it. There is no right to disseminate child pornography, to yell "Fire!" in a crowded theater, or to libel a person, even though the First Amendment provides that "no law" shall be made abridging free speech. [153] Similarly, while we enjoy complete freedom of belief with regard to religious practices, the First Amendment does not always protect the right to act on those beliefs. [154] The Fourth Amendment is subject to an interpretation that all searches require warrants issued pursuant to probable cause, but the Supreme Court continues to expand the situations in which warrantless searches are permitted. [155] And the Sixth Amendment provides [Page 87] for the assistance of counsel at trial, but criminal defendants are not entitled to have the state pay for the counsel of their choice in defense. [156] The list could go on.
Most gun owners probably would agree with these restrictions on individual liberties and with the general principle that individual rights must yield at some point to the interests of the community. Why is it, then, that proposed restrictions on guns are invariably met with the argument: "If we let them do x today, they'll be coming to take away our hunting rifles tomorrow?" Why are restrictions on the Second Amendment viewed as different, as somehow more diabolical and treacherous than restrictions on other rights? Is there an empirical reality to the fear that a waiting period to purchase a handgun is really just the first step toward the obliteration of the Second Amendment?
Although gun control advocates are reluctant to admit it, the evidence suggests that gun aficionados have some cause to be nervous about gun control measures like the Brady bill. To a large extent, passing the Brady bill, as even some of its proponents conceded, was more a symbolic victory over the NRA than the implementation of an effective means of keeping criminals from getting guns. [157] And while many supporters of the measure took pains to pledge their allegiance to the right to bear arms, [158] others candidly suggested that the Brady bill was, literally, the "first step" toward more stringent controls on gun ownership. [159]
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There is no doubt that the agenda of many Brady bill proponents encompasses much more than the adoption of waiting periods and background checks. Many Brady bill supporters want to prohibit private possession of handguns altogether. [160] This is what differentiates the Second Amendment slippery slope argument from most other arguments. Persons who believe in a civil remedy for libel are not ultimately looking to abolish newspapers. People who opposed polygamy in the 19th century did not want to outlaw the Mormon church. Most people who advocate wider search and seizure authority for the police do not want to do away with the Fourth Amendment. But many of those who support waiting periods and background checks for handgun purchases do want to completely ban handguns.
That the prohibition of handguns is the goal of many gun control advocates gives some credence to the slippery slope arguments advanced against the Brady bill, but not enough to make them non-fallacious. Despite the yearnings of many champions of gun control, guns are so deeply entrenched in this country's history and culture that there is virtually no chance they ever will be banned. Guns are inextricably identified with the frontier spirit that Americans idealize. [161] Even peaceful people idolize celluloid killers like Stallone, Eastwood, Gibson, and, more recently, Seagal and Van Damme. The very fact that the notion of having to wait a few days to buy a [Page 89] handgun generated such intense controversy is itself a testament that we are nowhere near the brink of a free-fall toward stringent gun restrictions. While the extreme views of many gun control supporters make the slippery slope argument understandable, assertions that the Brady bill is "the first step in the total disarmament of the American populace" [162] remain hyperbolic exaggerations.
3. The straw man and the red herring
Two related fallacies of diversion that were well utilized during the Brady bill controversy are the fallacies of the straw man and the red herring. The straw man fallacy involves refuting an opponent's position by mischaracterizing it. The argument that is then met is not the real argument at all but only a "straw man" that can be easily knocked down. [163] One way to accomplish this is by exaggerating the true argument to absurd lengths. For example, in the Brady bill debate, a House member opposed to the measure mounted a passionate argument against the idea that "disarming everyone makes people equal in strength." [164] The flaw in this argument is that supporters of the Brady legislation were not arguing in favor of disarmament, but only in favor of waiting periods and background checks for handgun purchases. Either unwilling or unable to deal with these narrow issues on their merits, the representative chose to build a more easily assailable straw man and knock it down instead. His diatribe is reminiscent of the tale of the judge who, after listening patiently to a young lawyer's eloquent argument, told the lawyer, "That's a fine argument, young man. Let us hope that someday you find a case to which it applies."
Not to be outdone, the pro-Brady bill side of the debate offered up this transparent straw man:
I leave you with this simple question that I have asked myself and answered by supporting the Brady bill. Do you believe that it is a constitutionally guaranteed right for any mentally incompetent person, convicted felon, drug addict, or illegal alien to walk into a gun store, fill out a form, sign their name, and walk out with a handgun, with no questions even being asked by anyone? [165]
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Fortunately for the speaker, the question was framed as a rhetorical one. Otherwise, he would have risked being hooted off the podium by a unanimous and resounding, "Hell no!" No one, not even the NRA, has ever suggested that convicted criminals and mental patients have a constitutional right to buy handguns, with or without questions asked. Everyone apparently agrees that these people should be prohibited from purchasing handguns. The issue in the Brady bill debate was whether waiting periods and background checks are the appropriate means for accomplishing this. As in the previous example, the speaker grossly distorted the real issue to give himself an easier target to attack. [166]
The distinction between the straw man and the red herring is subtle. While the straw man diverts attention by unreasonably exaggerating an opponent's position, red herrings divert attention by sending the audience chasing down the wrong trail after a non-issue. [167] An example of this involves Ronald Reagan's endorsement of the Brady bill. [168] Most Brady bill opponents simply opted not to mention the former President because his position was a painful thorn in their side. One brave soul was not deterred, however. In an amazing exhibition of obfuscation, an anti-Brady bill representative managed to address Mr. Reagan's endorsement without confronting it. He accomplished this by shifting the focus of the argument from Mr. Reagan's endorsement to the way Democrats had ridiculed the former President's views when he was in office, as follows:
[T]he proponents of the Brady bill seize upon the Ronald Reagan statements and the Ronald Reagan who has come to the support [Page 91] of the Brady bill as being the last word in support of their proposition that is embodied in the Brady bill.
Mr. Speaker, where were these individuals when Ronald Reagan was proposing the death penalty for individuals who used guns to kill? They scorned him. They laughed at Ronald Reagan. Where were they when Ronald Reagan proposed ... exclusionary rules [so] that gun-carrying criminals could not walk out of court on a technicality? They ridiculed President Reagan and his proposals on the exclusionary rule. Where were they on the whole comprehensive crime package which was sure to focus on the gun-carrying criminal in this country and to try to do something about violence? Nowhere to be found. They laughed at Ronald Reagan. [169]
This speaker fallaciously (albeit somewhat ingeniously) shifted attention from the damning effect of Mr. Reagan's blessing of the Brady bill to the red herring of whether Brady bill supporters agreed with the former President on earlier proposals.
This reasoning is defective because whether Brady supporters believe in the correctness of Ronald Reagan's opinions about other issues is irrelevant to whether they believe he is right about the Brady bill. Irrelevancy is the flaw in all red herring and straw man arguments. [170] The irrelevancy stems from the dissimilarity between the real point in issue and the distorted point in the case of a straw man or the non-point in the case of a red herring. A person can support the Brady bill but still oppose disarming the populace. Likewise, a person can oppose the Brady bill but still be against convicted criminals purchasing handguns. To argue about an issue that is unconnected to the real issue, whether by distorting the real issue or by dredging up a non- issue, is to argue irrelevantly.
4. Faulty analogies
This is also the case with respect to faulty analogies, another diversionary fallacy that was prevalent in the Brady bill dispute. Analogies are a persuasive form of reasoning because consistent treatment of similar situations strikes most people as not only logical, but fair. Children intuit this principle at an early age. Hence, parents for all time have been forced to contend with the argument: "Why can't I? Suzy's parents let her [go to the party, stay up late, dye her hair purple, etc.]" If a person perceives two situations as similar, the person expects them to be treated similarly.
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To reason by analogy is to reason inductively, that is, to assume that certain things are probably true because we know certain other things to be true. [171] In the law, analogical reasoning is the means by which courts honor the doctrine of stare decisis. Judges make decisions by searching for similar cases from which to extract a rule to apply to the case under consideration. [172]
For an analogy to be valid, the situations being analogized must be truly similar. Moreover, they must be alike in ways that are important to the reason why the analogy is being drawn. [173] There may be many similarities between two events, but if they are not relevant to the heart of the dispute, any attempt to draw an analogy between the two events would be fallacious. Two cases involving automobile accidents may involve a host of amazing similarities such as the color and model of the car, the day of the week on which the accident occurred, and that both drivers wore the unusual combination of Chanel suits and Birkenstock sandals. However, these similarities do not make the cases analogous for purposes of extracting a rule to apply to both of them.
In the Brady bill debate, opponents of the legislation repeatedly attempted to analogize waiting periods for handgun purchases with waiting periods to purchase other commodities, such as a waiting period to purchase an automobile, a baseball bat, or cocaine. With regard to automobiles, Representative Smith argued:
Of course guns do kill but automobiles are the instrument involved in killing many more times than guns are, and sometimes they kill people within the first 7 days of ownership, but we don't hear a proposal to delay the purchase of an automobile by 7 days or that it would reduce the number of people killed by automobiles. [174]
Representative Schulze offered the analogy to purchasing baseball bats: "Baseball bats killed 29 people in the city of Chicago in 1989. Should we require a waiting period on baseball bats?" [175] Finally, Representative Staggers asserted the analogy to purchasing cocaine: "A 7-day waiting period is a simplistic answer. In the same logic, if [Page 93] we would wait, say, 7 days to purchase cocaine, we could solve the drug problem." [176]
These analogies are ridiculously defective. The situations being compared are very different, and the similarities that do exist are irrelevant to the reasons supporting a waiting period for the purchase of handguns. The only similarities between purchase transactions for handguns and purchase transactions for automobiles, baseball bats, or cocaine are: first, the transactions involve purchases, and second, the items purchased are capable of inflicting death or serious bodily injury on human beings.
These similarities are irrelevant to the reasons underlying waiting periods for handgun purchases. The primary purpose for imposing a waiting period to buy a handgun is to give police an opportunity to perform a background check to determine whether the purchaser is a convicted felon or is otherwise prohibited from possessing a firearm. [177] Waiting periods to purchase automobiles and baseball bats have no logical connection to this purpose because no laws prohibit convicted felons from buying these items. With respect to cocaine, it is illegal for any person to purchase the drug under any circumstances, [Page 94] so discussion of a waiting period to buy cocaine makes little sense.
The dissimilarities between these purchases make analogies between them inapposite. While all the products present a danger of inflicting great harm, only handguns have that as their primary purpose. The purpose of automobiles is to travel. The purpose of baseball bats is to pursue the national pastime. The purpose of handguns is to kill. Any kind of rational risk-utility analysis would seem to support greater restrictions on handguns than on products that have common everyday utility to large segments of society.
Brady bill foes made other strange analogies. Attempting to demonstrate inconsistency on the part of "liberal" supporters of the bill, anti-gun control partisans analogized waiting periods for handgun transactions to waiting periods for free speech. [178] The argument was that if a person is willing to support a waiting period to buy a gun, the person should also support waiting periods to speak freely. For example, the person should support provisions obliging newspaper editors to wait seven days before publishing the news. The flaw, of course, is that there is no similarity between handgun purchases and free speech, other than that both are the subject of constitutional provisions. As stated above, the primary purpose for imposing a waiting period for handgun purchases is to prevent illegal sales to convicted felons. Obviously, no similar purpose would be achieved by requiring a waiting period before a newspaper could publish the news.
The most irresponsible analogy of the Brady bill debate came from Oklahoma Representative Bill Brewster. In arguing against a waiting period, Representative Brewster said, "To tax these individuals with a 7-day waiting period is the same as telling criminals that they have a 7-day hunting period on America's innocent families." [179] Obviously, a seven-day waiting period to buy a gun is not [Page 95] "the same" as an open hunting season on American families. This assertion was so wild as to not warrant serious analysis.
While their analogies were not as bizarre as some of those offered by Brady bill opponents, supporters of the legislation propounded their own faulty analogies. Describing it as a "perfect analogy," [180] a pro-Brady bill representative compared a waiting period to buy a handgun to the noncontroversial requirement that visitors to the United States Capitol pass through a metal detector to gain access to the building. [181] This analogy, however, is far from perfect. First of all, there is no constitutional right to enter the Capitol building, whereas handgun waiting periods arguably have constitutional implications. [182] Moreover, a short delay waiting in line to pass through a metal detector is not equal to the burden of a seven-day waiting period to purchase a gun. Finally, there is a much more direct means/end connection with respect to the Capitol metal detector than there is in the case of waiting periods to purchase handguns. Metal detectors presumably are effective in preventing persons from bringing most kinds of weapons into the Capitol, whereas the extent to which waiting periods for handgun purchases will keep criminals from obtaining guns is questionable. [183]
As seen in this discussion, analogies have dual persuasive potential. [184] Analogies can be employed to generate opposition to a proposal by comparing the proposal to measures that most people would find objectionable. This was the case when Brady bill foes analogized handgun waiting periods to waiting periods to purchase automobiles or to speak freely. [185] Because most people would reject [Page 96] waiting periods to buy cars or to speak as unreasonable, they would also be likely to reject the Brady bill if they were convinced the situations were similar. Analogies can also be used to engender support for a proposal by comparing the proposal to existing measures that most people agree are sensible. [186] In this way, the Brady bill supporter mentioned earlier sought to persuade the audience that handgun waiting periods are a good idea by comparing them to the metal detectors at the Capitol, which most people probably believe to be a reasonable safety precaution. Because these analogies did not involve truly similar situations, however, the comparisons were fallacious diversions into irrelevancy. [187] It is irrelevant that waiting periods to buy automobiles are not wise because such delays are not analogous to waiting periods to buy handguns. Similarly, it does not matter whether metal detectors at the Capitol make sense, because metal detectors have nothing in common with handgun waiting periods.
C. Fallacies of Proof
The fallacies evaluated in this section involve problems of proof.
Proof in argumentation constitutes the premises from which conclusions follow. [188] Sound conclusions generally require convincing evidence to sustain them. [189] Where evidence is ignored, distorted, or otherwise manipulated, the argument is fallacious. [190] The gun control controversy provides ample rhetoric to illustrate these fallacies.
1. One-sided assessment
It is fallacious to ignore countervailing evidence or arguments in attempting to persuade. [191] Virtually any argument can be made to sound convincing if relevant authority tending to disprove the argument is overlooked. Such one- sided assessments or half-truths [192] [Page 97] may not seem pernicious to attorneys or students of the law because effective advocacy requires skill at emphasizing favorable evidence and deemphasizing or distinguishing unfavorable evidence. For example, if a defense lawyer in a capital case insisted during summation on giving an evenhanded, objective analysis of the testimony, he or she would be rendering ineffective assistance of counsel. [193] Pursuit of the truth, some might say, is the lawyer's goal only if the truth happens to coincide with the client's interests. What makes such sleight of hand proper in this context is the adversarial nature of the legal process. [194] If there is competent counsel on both sides, the fact-finder ultimately will hear the important arguments and evidence on both sides. [195] However, the fact that one-sided assessments are accepted as part of partisan advocacy does not make them sound. [196] They remain fallacious and defective.
Outside of the legal process, half-truths become more insidious. Where debate occurs in an arena not structured so as to ensure that the arguments and evidence on both sides are fully and fairly presented, a danger exists that opinions will be formed in an unenlightened way. [197] This includes debate on most social and political issues such as affirmative action, abortion, and gun control. It is true that relevant facts and argument on both sides of prominent issues will be disseminated, but in public debate, the dissemination is likely to be fractured and unbalanced. In a trial, the fact- finder cannot avoid hearing both sides because both the judge and jury sit through the trial from beginning to end. Outside of the court room [Page 98] the discourse is less structured, and listeners are likely to receive only bits and pieces of the relevant argument. Through unconscious self-selection, listeners also are likely to hear only those parts of the debate with which they already agree. [198] This fact makes balance a crucial element in public discourse.
Fundamental to any discussion of gun control is the proper interpretation of the Second Amendment, which provides that "[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." [199] The Amendment is subject to two very different interpretations. One view is that the Amendment affords no individual right to bear arms, but rather protects only a collective "state" right to maintain an organized militia. [200] Proponents of this "collective right" position assert that the Second Amendment was promulgated to allow states to protect themselves from the threat of the new national government's standing army by maintaining militias. They find support for their interpretation in the linguistic structure of the Amendment, arguing that the "well regulated Militia" preamble serves to restrict the clause relating to the right to keep and bear arms. Proponents of the competing view argue that the Second Amendment guarantees and protects an individual right to keep and bear arms. [201] Adherents to this "individual right" view rebut the [Page 99] linguistic argument by noting that in the 18th century, the "militia" included all able-bodied citizens of the community and not simply those who were members of state defense organizations equivalent to the modern day National Guard. [202]
Both sides in this interpretive debate bolster their respective positions with extensive historical and ideological analysis. [203] In fact, it has been observed that both sides often draw on the same historical data to support their opposing views. [204] Each side asserts its position with conviction and certitude. The problem is that there is little basis in this debate for conviction or certitude. A review of the literature reveals strong arguments and evidence on each side. Yet, in order to persuade readers to adopt their own strongly held beliefs, the writers sometimes ignore opposing arguments and evidence. [205] This results in biased, one-sided analysis.
Illustrative of the one-sided analysis is the disagreement as to whether the United States Supreme Court has adopted the collective right or the individual right interpretation of the right to bear arms. The centerpiece of the Court's Second Amendment jurisprudence [Page 100] is its decision in United States v. Miller. [206] The defendants in Miller were charged with transporting an unregistered sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. [207] The district court quashed the indictment, agreeing with the defendants' demurrer that the Firearms Act of 1934 violated the Second Amendment. [208] On direct appeal, in an opinion offering a little something for everyone, the Supreme Court held that possession of the sawed-off shotgun was not protected by the Second Amendment. [209]
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Critics and supporters of gun control both cite Miller as authority for their respective views regarding the proper interpretation of the Second Amendment. [210] While some of this commentary is balanced, much of it presents an unwarrantedly one-sided assessment of the issue. [211] This bias is reflected in the underwritten and over-confident conclusions on the meaning of Miller offered by some members of the collective right faction. One advocate of the collective right theory recently cited Miller for the assertion that the Supreme Court has "ruled ... that the Second Amendment has nothing to do with individual rights to bear arms but rather the right of the states to an armed militia." [212] A reporter for the New York Times echoed this sentiment when he stated that the Court has "ruled at least three times that the Second Amendment has not the slightest thing to do with an individual's right to bear arms." [213] The writer described Miller as "the most trenchant of these decisions." [214] And a scholar discussing Miller concluded that "[t]he second amendment as interpreted within this context refers to a collective right and not an individual right." [215] Another commentator, seizing on two sentences from the opinion in Miller, stated confidently, "[t]hese words alone undercut any individual right interpretation of the Second Amendment." [216] These conclusions not only ignored relevant counterarguments derived from a fair reading of the Miller opinion, but also failed to provide proper analysis to reach the particular conclusion.
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Supporters of the "individual right" theory have, for the most part, presented a more in-depth analysis of Miller. [217] This may be due to the fact that a cursory reading of the case more readily suggests a collective right interpretation, [218] and, therefore, opponents of that view may feel they have more explaining to do. Nevertheless, while the analyses offered by those who advance the individual right theory are generally more complete, their conclusions are just as one-sided. For example, in stark contrast to the collective right interpretations quoted above, a partisan of the individual right camp offered this slant on the case: "[I]t is clear that Miller, even with its limitations, supports the view that the second amendment guarantees an individual right to keep and bear arms, including handguns." [219] Another supporter of the individual right view offered this equally one-sided assessment of the case: "[D]espite the shortcomings of the Miller opinion, the Supreme Court correctly concluded that the Second Amendment protects an individual's right to keep and bear arms and thus rejected the untenable collective right theory." [220]
Obviously, these polar interpretations of Miller cannot both be correct. [221] It is doubtful that either is correct. The most accurate assessment of Miller is that the opinion did not clearly indicate whether the Second Amendment creates an individual right or only a collective right. [222] The correct interpretation of Miller is not really the issue here. The issue is the process used to arrive at one interpretation or the other. To present Miller as standing clearly for either the collective right view or the individual right view is to commit the fallacy of one-sided assessment, because such a presentation depends on ignorance of strong competing evidence and arguments. [223]
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2. Causal fallacies
Lawyers who remember their first-year torts class know that few legal doctrines are as bereft of meaningful content as that of causation. Even ignoring the illusory principles of proximate or legal cause and concentrating on the comparatively concrete concept of causation in fact, "causality may have no more reality than a dragon or a mermaid." [224] This is because the search for a causal nexus, within or outside the law, requires that we apply a hypothetical alternative test in which we must compare what happened under a set of known circumstances to what would have happened under a different set of circumstances. The problem is the uncertainty involved in ascertaining what would have happened under different circumstances. Such determinations are seldom subject to any kind of empirical proof. [225]
As a result, we are often forced to draw inferences from nothing more than the assumption post hoc, ergo propter hoc (after this, therefore because of this). In other words, we reason that because one event followed another, the latter was caused by the former. Post hoc reasoning is generally condemned as fallacious. [226] This is not always [Page 104] true, however. In many instances, our everyday experiences allow us to draw reasonable inferences of causation from a sequence of events. This is common in the law. Thus, where a person falls while hurrying down a defendant's stairs, which were unlit and had no handrail, a reasonable inference can be drawn that the defendant's negligence caused the fall. [227]
Post hoc reasoning is valid when applied to such simple, everyday occurrences because a substantial body of community experience exists by which to evaluate the events. While it is possible that the person would have fallen even if the stairs had been properly lit and a handrail provided, common experience tells us that traversing unlit stairs with no handrail greatly increases the likelihood that an accident will occur. Falling down unsafe stairs is a natural and ordinary sequence of events. [228] Post hoc reasoning in these circumstances is not fallacious.
The more complex the events, however, the more likely it is that post hoc reasoning will be unsound. [229] As the number of causal variables increases, the ability to draw reasonable inferences of causation based on a mere sequence of events decreases. A remark made during the 1991 San Francisco mayoral race is illustrative. Commenting to a reporter about incumbent mayor Arthur Agnos' drop in the polls the month before the election, an advisor to a competing candidate said, "[Agnos] spent $1 million to drop five points. If he had spent $2 million, would he have dropped 10 points?" [230] This statement suggests that Mayor Agnos' drop in the polls was caused by his spending $1 million on the campaign, when, in fact, it is doubtful that any such correlation existed. Most likely, far more complex factors than campaign spending were responsible for Agnos' decline in support. To establish a causal relationship involving any complex sequence of events requires more in the way of [Page 105] proof than simply showing that one event followed another. [231]
This same analysis holds true with respect to the reverse process of reasoning that one event does not cause another event because the latter does not invariably follow the former. Where events are complex and many potential causal variables exist, a mere sequence of events is not enough to disprove a causal relationship.
This flawed process of reasoning about causality infects one of the primary arguments against gun control generally and the Brady bill in particular. The argument is that gun control does not work because gun-related crime has risen in jurisdictions where gun control laws have been adopted. [232] Cast in the language of causation, the argument is that gun control does not cause a reduction in gun crime because such a reduction has not followed the enactment of gun control. The fallacy of this argument is that it omits both known and unknown variables that help explain this sequence of events. It is an overly simplified assessment of the causal relationship between guns and violent crime based on select information. [233]
The fallacy is attributable to a failure to appreciate the distinction between necessary and sufficient causes. A necessary condition of an event is one that must be present for the event to occur but that is not by itself sufficient to produce the event. [234] A sufficient condition is one without which the event definitely will not occur. [235] Gun control is a necessary condition, but not a sufficient one, to the reduction of gun-related violent crime in the United States. It is not a [Page 106] sufficient condition because the ready availability of guns is only one of many causes that contribute to violent crime. A significant reduction in violent crime will occur only when other causes such as poverty, drugs, and the disintegration of the family are dealt with effectively and comprehensively. Nevertheless, while gun control will not alone eradicate violent crime, violent crime probably will not be eradicated without gun control.
The argument that rising crime in places where gun control has been enacted shows that gun control does not work is also defective for omitting known facts that are relevant to assessing the causal nexus between gun control and violent crime. It is true, for example, as the anti-gun control forces assert, that violent crime has increased in New York City despite stringent restrictions on handgun ownership. [236] What the argument fails to address, however, is that as many as ninety percent of the handguns used to commit crimes in New York City are transported there from states without stringent gun control laws. [237] It is impossible to measure the potential success of gun control under the patchwork of conflicting and inconsistent state and local laws presently in existence. Only uniform, national standards will enable us to determine whether restrictions such as waiting periods work to reduce violent crime.
3. Arguments from ignorance
Because of the many complex variables involved, it is unlikely that anyone will ever be able to prove that gun control laws either do or do not work to diminish violent crime. [238] Such proof simply does not exist and probably never will. But the absence of this proof [Page 107] does not support a valid conclusion concerning either the efficacy or non-efficacy of gun control. [239] To argue that lack of evidence supports either position is to commit the fallacy of argumentum ad ignorantiam, that is, an argument from ignorance. This fallacy occurs whenever one argues that the absence of evidence in support of a thesis establishes that the thesis is false, or conversely, that the absence of evidence in opposition to the thesis establishes that the thesis is true. [240] In most cases, this assumption is flawed. For example, one could not argue validly that ghosts do not exist because no one has ever proven they do exist. [241] Nor could one validly conclude that ghosts do exist simply because no one has ever been able to prove they do not exist. [242]
Both opponents and proponents of gun control commit the fallacy of argumentum ad ignorantiam when they argue that the absence of proof concerning the efficacy of gun control supports their respective positions. Gun control opponents assert that the lack of proof that gun control reduces violent crime supports the conclusion that it does not. [243] Gun control proponents advance essentially the opposite proposition, challenging the other side to prove that gun control does not reduce violent crime. [244]
Both arguments constitute a specific type of argument from ignorance that historian David Fischer has labeled the fallacy of negative proof. [245] Both sides are arguing, in effect, that "there is no evidence of x; therefore, not-x." [246] This method of argumentation is defective because the only acceptable means of showing not-x is by producing affirmative evidence of not- x. [247] "No evidence" means [Page 108] only that one does not know whether a thing exists, which is much different from knowing that it does not exist. [248] When an issue is not subject to empirical proof, one cannot reach a valid conclusion regarding the issue based solely on the lack of such proof. [249] A causal connection between gun control and a decrease in gun- related crime may never be shown, but this does not by itself warrant the conclusion that gun control is unnecessary to crime control.
CONCLUSION
In the year that has passed since Congress debated the Brady bill, an estimated four million new firearms entered the stream of commerce in the United States, [250] bringing the total number of guns possessed by American citizens to approximately 200 million. [251] If the country is concerned about altering its current gun policies, it should act sooner rather than later. Each year that passes without meaningful gun control reform will make it that much harder to implement such reform. But as stated at the beginning of this Article and demonstrated by the debate over the Brady bill, we cannot hope to engage in meaningful law reform until we first reform the debate.
What is it about the issue of gun control that makes us unable or unwilling to engage in rational discussion? Why do we choose fallacious reasoning over sound logical reasoning? Fallacies occur in argument for two basic reasons. First and most simply, fallacious reasoning is an effective tool of persuasion. [252] People engaged in argument prefer winning over losing, so there is a natural inclination to resort to any effective means available to achieve that end. Jeremy Bentham, for example, believed that most fallacies are employed intentionally, usually for bad purposes. [253] Even a person inclined [Page 109] to avoid fallacies may be tempted to use them when matched against an opponent who does not feel similarly restrained, because failure to do so might result in a competitive disadvantage. [254]
However, although many fallacies are intentional rhetorical tricks designed to gain a competitive edge, this does not fully explain why rhetoricians use them. Fallacies also result from unconscious self-deception. [255] We often believe ideas or principles not so much because they have been proven to us, but because our passion, interest, and self-love allow us to deceive ourselves. [256] In other words, we believe what we want to believe; truth and utility become one and the same. [257] This self-deception allows us to kill or at least suppress any doubts we might have in forming opinions about an issue. The result is that the judgments we make and accept concerning the issue are false. These false judgments, in turn, lead us to faulty [Page 110] reasoning. [258]
The more an issue stimulates our passion or threatens our personal interests, the more likely it is that we will resort to faulty reasoning in debating the issue and the more likely it is that we will accept faulty reasoning from others. This observation helps to explain why, although fallacies occur in much of political discourse, they dominate the discussion of emotional issues. These issues involve deeply ingrained beliefs; they are issues we are either "for or against." When no common ground can be found regarding an issue, there is no room for compromise. To acknowledge that there are reasonable and meritorious arguments on the other side in such a case is to discredit one's own beliefs. Abortion is an example of such an issue. It presents a wholly irreconcilable conflict between the right of the fetus to be born into the world and the right of the mother to choose to terminate her pregnancy. To recognize the right of the fetus to be born is necessarily to reject the right of the mother to choose and vice versa. There simply is no middle ground in this conflict.
With respect to gun control, the conflict is one between community and individual rights. [259] Advocates of gun control view coercive communitarian restrictions as the only commonsense answer to escalating gun violence. [260] Gun enthusiasts view gun control as an unwarranted encroachment on individual liberty. [261] Ordinarily, conflicts between community rights and individual rights do not involve irreconcilable positions painted in black and white. Usually there is some reasonable middle ground and hence some room for using reasoned debate as a way to achieve a fair compromise. It is possible to believe strongly in individual rights and yet recognize that these rights must give way at some point for the protection of the community, just as it is possible to recognize that the community [Page 111] must endure some costs in order to protect individual liberties. Courts forge this delicate balance every day in cases involving free speech and procedural protections for suspects of crime. [262]
What sets gun control apart from other dialogues about the balance between community responsibility and individual rights is that gun owners truly believe that any restriction on gun ownership will be only the first step toward gun confiscation. [263] While this fear is unjustified as a matter of political reality, it has some basis in the fact that banning guns (or at least handguns) is the true agenda of many gun control proponents. [264] Accordingly, it is difficult if not impossible to decouple arguments concerning the reasonableness of any particular gun control measure from the much larger argument regarding whether society should ban guns altogether. As to the latter issue, the positions are firmly fixed miles apart.
But we need not view the issue of gun control so rigidly. We could find common ground in the debate if both sides would temper their positions. Gun control proponents who are serious about accomplishing anything should abandon their rhetoric calling for a complete ban on gun ownership. Not only will a complete ban never happen, it is questionable whether we should even want it to happen. With 200 million guns already in circulation, it is likely that a legal ban on guns would prevent only law-abiding citizens from possessing them. Unless and until a way is developed to take all the guns out of the hands of criminals, even staunch anti-gun proponents should be uneasy about the prospect of banning legal ownership of guns.
Opponents of gun control, on the other hand, need to relinquish [Page 112] their unnecessarily alarming slippery slope arguments and be more willing to consider reasonable measures to keep guns out of criminals' hands. The public interest demands that gun control opponents be more amenable to making reasonable concessions concerning their private interests. [265] The gun control measures that have managed to receive serious consideration thus far have been very modest. Certainly, the Brady bill seems to fall into this category. Gun owners should evaluate gun control proposals on their true merits, rather than on the spectre of what might come next. We impose restrictions on other individual rights for the benefit of the community and have been successful in avoiding free falls down the slippery slope. There is no reason to believe we could not be just as successful with respect to regulating guns.
The lesson to be learned from studying the rhetoric used in the debate over the Brady bill is important. Jeremy Bentham believed that fallacies are used almost exclusively to perpetuate wickedness. [266] Bentham's assessment is perhaps too harsh given that fallacies often result from unwitting self-deception. But even if fallacies are used only to perpetuate blindness and ignorance, that is bad enough.
It does not require much argument to support the proposition that we should make important social policy decisions in a climate of reason rather than in the fog of fallacy. We certainly try to abide by this principle in our personal lives. For example, suppose a person is faced with the decision whether to move out of an apartment and buy a particular house. The prospective homeowner hears the following arguments from friends and real estate agents: (1) "I have a friend who decided not to buy a house and she got struck by lightning the next day"; [267] (2) "Everybody who is anybody owns their [Page 113] own house"; [268] and (3) "If you don't buy that house, you won't own your own place." [269] These arguments are absurdly defective and it is unlikely a person would be influenced by them in deciding whether to buy a house. Yet in the debate over the Brady bill involving a major national policy decision, we accepted arguments as absurd as these. To echo Jeremy Bentham's optimism concerning the destiny of political fallacies in Parliament, we can only hope that the next time a gun control measure comes before the people of the United States, the first person to utter a fallacy will be greeted not with approval, "but with voices in scores crying aloud 'Stale! Stale! Fallacy of Authority! Fallacy of Distrust' and so on." [270]
* Professor of Law, University of Arkansas at Little Rock; B.S., J.D., University of Florida. I would like to thank my friend and colleague, Professor Mary Pat Treuthart, Gonzaga University School of Law, for the many hours she devoted to reading and commenting on drafts of this article. I benefited greatly from her insightful substantive and editorial comments.
[1]. 137 CONG.REC. H2845 (daily ed. May 8, 1991) (statement of Rep. Downey).
[2]. Id. at H2845 (statement of Rep. Costello).
[3]. The "Brady bill" is the popular title given to proposed federal legislation to require waiting periods and background checks for handgun purchases. Sean Murphy, Mayor Renews Call For Fewer Handguns, BOSTON GLOBE, Dec. 1, 1991, at 46. Congress debated the bill during its first session in 1991. See 137 CONG.REC. H2854 (daily ed. May 8, 1991) (introducing Brady bill); 137 CONG.REC. S59,039 (daily ed. June 28, 1991) (debating Brady bill in Senate). The Brady bill is intended to enforce existing prohibitions on handgun purchases by convicted felons, fugitives from justice, drug users, mental defectives or persons who have been committed to mental institutions, illegal aliens, persons who have been dishonorably discharged from the armed forces, and persons who have renounced their United States citizenship. See 18 U.S.C. § 922(d), (g) (1988) (identifying persons not eligible for handgun purchases). The bill was named in honor of Jim and Sarah Brady. Stephanie Saul, Brady Vows to Keep Pushing Gun Bill, NEWSDAY, Nov. 28, 1991, at 17. Jim Brady is the former press secretary to President Ronald Reagan who was wounded by John Hinckley during Hinckley's attempt to assassinate the President. Howell Raines, Reagan Wounded in Chest by Gunman, N.Y. TIMES, Mar. 31, 1981, at A1. His wife, Sarah Brady, is the chairwoman of Handgun Control, Inc., a Washington-based lobbying organization that promotes gun control legislation. Id.
In the summer of 1991, the United States House of Representatives and the United States Senate introduced different versions of the Brady bill as part of broader crime control packages. H.R. 7, 102d Cong., 1st Sess. (1991); S. 1241, 102d Cong., 1st Sess. §§ 2701-2703 (1991). Both bills required licensed firearm dealers to forward identifying information regarding a prospective handgun purchaser to the chief law enforcement officer at the purchaser's place of residence. The dealer would then have to wait for a period of days to receive information from the officer as to whether the purchase would violate federal, state, or local law. The House bill provided for a seven-day waiting period, while the Senate bill specified a waiting period of five business days. H.R. 7 § 2(a)(s)(1)(A)(ii)(I); S. 1241 § 2701(a)(u)(A)(ii)(I). A more important difference between the two bills is that only the Senate bill actually required the chief law enforcement officer receiving the information to conduct a background check of the prospective purchaser. S. 1241 § 2701(a)(u)(2). The House bill required only that the seller communicate the information to the police and then wait seven days. H.R. 7 § 2(a)(s)(1)(A)(III). Though the drafters of the House bill apparently contemplated that the police would conduct a background check upon receiving the information, the bill did not impose such an obligation. In fact, the House bill expressly stated that it "shall not be interpreted to require any action by a chief law enforcement officer which is not otherwise required." Id. § 2(a)(s)(2).
The Senate bill also went further than the House bill in mandating that the Attorney General create a computerized "national instant criminal background check system." S. 1241, supra, § 2702. To ensure this would be accomplished, the bill imposed specific timetables on the federal and state governments for the development of such a system. Id. The bill gave the Attorney General 30 months to certify that a national computer system had achieved at least 80% currency of case dispositions for all cases in which there had been activity within the five preceding years. Id. § 2702(d)(1)(A). At that time, the Attorney General would also have to determine whether the states were in compliance with a five-year timetable to develop systems of similar capabilities. Id. § 2702(c)(2), (d)(1)(B). A state that was certified to be on schedule with the timetable would be released from the federal waiting period and background check requirements. Id. § 2702(d)(2). Six years after the law became effective, the Attorney General would be required to certify whether the states were fully in compliance with the act. Id. § 2702(d)(3). If they were determined to be in compliance, the waiting period and background check requirements would be lifted. Id.
Both the House and Senate bills created some exceptions to the waiting periods and background checks, including situations where a threat had been made against the life of the purchaser or a member of the purchaser's family. H.R. 7 § 2(a)(s)(1)(B); S. 1241 § 2701(a)(u)(1)(B). Both bills also exempted from coverage purchasers possessing permits issued by states that require background investigations as a condition for obtaining the permits. H.R. 7 § 2(a)(s)(1)(C); S. 1241 § 2701(a)(u)(1)(C).
In November 1991, House and Senate conferees reached agreement on an overall crime bill, which was designated the Omnibus Crime Control Act of 1991, of which the Brady bill was a small portion (Title V, Subtitle A). H.R. 3371, 102d Cong., 1st Sess. (1991); see also CONFERENCE REPORT ON H.R. 3371, OMNIBUS CRIME CONTROL ACT OF 1991, H.R.REP. NO. 405, 102d Cong., 1st Sess. (1991), reprinted in 137 CONG.REC. H11,686-H11,744 (daily ed. Nov. 26, 1991). See generally Paul Houston, House, Senate Conferees Agree on Big Crime Bill, S.F. CHRON., Nov. 25, 1991, at A1 (explaining history of agreement). The conferees adopted the Senate version of the Brady bill, with only minor modifications. See JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE, H.R.REP. NO. 405, 102d Cong., 1st Sess. (1991), reprinted in 137 CONG.REC. at H11,740 (explaining that House conferees assented to adoption of Senate version of Brady bill with modifications including: (1) waiting period is to be triggered when firearms transferor rather than transferee notifies chief local law-enforcement officer of contents of transferee-information statement; (2) waiting-period exemption based on remote location is to be additionally conditioned on existence of local ratio of less than 2.5 law-enforcement officers per 1000 square miles; and (3) funding grants for improvement of criminal records are to be administered by Bureau of Justice Statistics). In letters to the Republican leaders of Congress, President Bush threatened to veto the crime bill because of his objections to provisions relating to habeas corpus reform, the exclusionary rule, and the death penalty. Letter from President George Bush to Rep. Robert H. Michel (Nov. 25, 1991), reprinted in 137 CONG.REC. H11,678-79 (daily ed. Nov. 26, 1991); Letter from President George Bush to Sen. Robert Dole (Nov. 25, 1991), reprinted in 137 CONG.REC. S18,671 (daily ed. Nov. 27, 1991). The House nevertheless approved the crime bill by a 205-203 vote. 137 CONG.REC. H11,756 (daily ed. Nov. 26, 1991). After the Senate failed to agree to close debate on the conference report, however, Congress adjourned for the year without taking final action on the legislation. 137 CONG.REC. S18,616 (daily ed. Nov. 27, 1991). Senator Joseph Biden criticized Senate Republicans for taking "the final step" that "killed what would be the toughest anticrime law in U.S. history." Id. at S18,665.
[4]. See EDWARD P.J. CORBETT, CLASSICAL RHETORIC FOR THE MODERN STUDENT 3 (2d ed. 1971) (stating that rhetoric is about using language, either spoken or written, to inform, persuade, or move audience); CHAIM PERELMAN, THE REALM OF RHETORIC 5 (1982) (describing rhetoric as entire range of discourse directed toward persuasion regardless of audience or subject matter); W. ROSS WINTEROWD, RHETORIC, A SYNTHESIS 77 (1968) (defining rhetoric as art of trying to persuade about any particular subject).
[5]. See JEREMY BENTHAM, THE HANDBOOK OF POLITICAL FALLACIES 3 (Torchbook ed. 1962 of Harold A. Larrabee rev. ed. 1952) (1824) (defining fallacy as argument used for purpose of deceiving); IRVING M. COPI, INTRODUCTION TO LOGIC 52 (2d ed. 1961) (defining effect of fallacy as making reasoning incorrect); W. WARD FEARNSIDE & WILLIAM B. HOLTHER, FALLACY: THE COUNTERFEIT OF ARGUMENT 3 (1959) ("The word 'fallacy' is sometimes used as a synonym for any kind of position that is false or deceptive, and sometimes it is applied in a more narrow sense to a faulty process of reasoning or to tricky or specious persuasions."); C.L. HAMBLIN, FALLACIES 12 (1970) ("A fallacious argument ... is one that seems to be valid but is not so."); MADSEN PIRIE, THE BOOK OF THE FALLACY vii (1985) (defining fallacy as "[a]ny trick of logic or language which allows a statement or a claim to be passed off as something it is not").
Aristotle, from whose work all subsequent study of fallacies descended, defined fallacies in much the same way:
That some reasonings are genuine, while others seem to be so but are not, is evident. This happens with argument, as also elsewhere, through a certain likeness between the genuine and the sham.... [B]oth reasoning and refutation are sometimes genuine, sometimes not, though inexperience may make them appear so....
1 ARISTOTLE, De Sophisticis Elenchis, in THE WORKS OF ARISTOTLE 164a 1.23 (W.D. Ross ed. & W.A. Pickard-Cambridge trans., 1928) [hereinafter De Sophisticis Elenchis].
[6]. T. EDWARD DAMER, ATTACKING FAULTY REASONING 3 (1980).
[7]. See generally DAMER, supra note 6 (analyzing 64 fallacies). The fallacy of the "undistributed middle term" results from inferring a conclusion from two premises where the middle term of the syllogism is not distributed to either premise. Id. at 122. Damer explains the fallacy of "affirming the consequent" as a conditional statement that affirms the consequent premise or statement instead of properly affirming the antecedent premise or statement. Id.
Aristotle originally classified 13 fallacies in De Sophisticis Elenchis. De Sophisticis Elenchis, supra note 5, at 165b 1. 23-169a 1. 22. He divided them into two groups: fallacies dependent on language and fallacies not dependent on language. The fallacies dependent on language included ambiguity, amphibole, combination, division of words, accent, and form of expression. Id. at 165b 1. 25-165b 1. 28. The fallacies not dependent on language included those dependent on accident, qualifications based on time, place, or relation, dependent on ignorance of meaning or refutation, dependent on consequent, dependent on original premise, dependent on causation, and dependent on joining several questions into one. Id. at 166b 1. 20-166b 1. 30.
David Fischer lists 11 groups of fallacies in his extraordinary work, Historians' Fallacies. See DAVID H. FISCHER, HISTORIANS' FALLACIES VIII, 337- 38 (1970) (dividing each group into seven or more individual fallacies for more than 100 specific definitions). Fearnside and Holther discuss 51 fallacies in Fallacy: The Counterfeit Argument. See FEARNSIDE & HOLTHER, supra note 5, at v- vi (grouping specific fallacies into nine larger groups: faulty propositions, faulty constructions, emotional coloration, misuse of authority, stirring up prejudice, rationalization and lip service, biased misconstructions, diversions, and logical fallacies).
Madsen Pirie's work, The Book of Fallacy, while not scholarly, is a useful guide to 76 different fallacies. See PIRIE, supra note 5, at 183-87 (providing in lexicon format humorous and easily understandable definitions of fallacies).
[8]. DAMER, supra note 6, at 4.
[9]. See DAMER, supra note 6, at 4 (supporting premise that bad rhetoric, or rhetoric containing error, often leads to faulty conclusions).
[10]. See BENTHAM, supra note 5, at 246 (arguing that fallacies flourish in political systems that allow free speech and operate on basis of popular assent). Bentham argued that fallacy in essence is fraud. Id. He further believed that such fraud was used especially in democracies because dictators who can resort to force do not need to resort to fraud. Id.
[11]. While there is fierce disagreement regarding the solution to gun violence, it is unlikely that anyone would dispute the magnitude of the problem. Firearms are used to kill more than 30,000 persons each year in the United States. THE GUN CONTROL DEBATE 12 (Lee Nisbet ed., 1990) [hereinafter THE GUN CONTROL DEBATE]. Though precise statistics are not available, it is estimated that for every firearm fatality there are five non-fatal firearm injuries. Bill Stokes, Daily Devastation; Faulty Thinking About 'Accidents' Is Hurting Us More Than We Think, CHI.TRIB., Oct. 7, 1990, (Sunday Good Health Magazine) at 8, 32.
Handguns, which are the target of most gun control efforts, are responsible for roughly 22,000 of the annual firearm deaths. David L. Wilson, The Numbers Game: The Data Behind the Policy, NAT'L J., July 21, 1990, at 1796. In 1988, 8,915 people were murdered with handguns in the United States. Wayne King, Sarah and James Brady; Target: The Gun Lobby, N.Y. TIMES, Dec. 9, 1990, (Magazine), at 80. This compares with only 7 handgun murders in Great Britain, 8 in Canada, 19 in Sweden, and 53 in Switzerland. Id. In addition, approximately 1,200 people die in accidental shootings in the United States each year. Wilson, supra, at 1796. The majority of handgun deaths are suicides, which occur at the rate of about 12,000 per year. Id.
Every day in this country, 25 people are murdered with handguns, 33 women are raped at gunpoint, 575 people are the victims of armed robberies, and 1,116 people are assaulted with a gun. King, supra, at 80. Since 1984, there has been a 97% increase in youth firearm murders. Youth Homicide and School Violence at Record Levels, New Center Research Shows, HANDGUN CONTROL SEMI-ANNUAL PROGRESS REPORT (Handgun Control, Inc., Washington, D.C.), Jan. 1991, at 6. Gun violence is the leading cause of death among African-American youths, adding a racial dimension to the tragedy. 137 CONG.REC. H2815 (daily ed. May 8, 1991) (statement of Rep. Norton). In 1988, 44% of all deaths among African-American males in the age range from fifteen to twenty-four were caused by firearms. Id.
[12]. Most of the scholarly commentary regarding gun control relates to the proper interpretation of the Second Amendment. Three symposia have been devoted primarily to this issue. See generally Symposium, Gun Control and the Second Amendment, 15 U. DAYTON L.REV. 1 (1989) (containing articles: Keith Ehrman & Dennis Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately? 5; Robert Dowlut, Federal and State Constitutional Guarantees to Arms 59; Stephen Halbrook, Encroachments of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment 91; Joshua Horwitz, Kelley v. R.G. Industries: A Cause of Action for Assault Weapons 125; James Jacobs, The Regulation of Personal Chemical Weapons: Some Anomalies in American Weapons Law 141); Symposium, Gun Control, 49 LAW & CONTEMP.PROBS. 1 (1986) (containing articles: James Jacobs, Exceptions to a General Prohibition on Handgun Possession: Do They Swallow Up the Rule? 5; Gary Kleck, Policy Lessons from the Recent Gun Control Research 35; Margaret Howard, Husband-Wife Homicide: An Essay From a Family Law Perspective 63; Daniel Polsby, Reflections on Violence, Guns, and the Defensive Use of Lethal Force 89; Lance Stell, Close Encounters of the Lethal Kind: The Use of Deadly Force in Self-Defense 113; Robert Shalhope, The Armed Citizen in the Early Republic 125; Don Kates, Jr., The Second Amendment: A Dialogue 143; Stephen Halbrook, What the Framers Intended: A Linquistic Analysis of the Right to "Bear Arms" 151; Robert Batey, Strict Construction of Firearm Offenses: The Supreme Court and the Gun Control Act of 1968 163; Alan Lizotte & Marjorie S. Zatz, The Use and Abuse of Sentence Enhancement for Firearms Offenses in California 199; Note, The Public Use Test: Would a Ban on the Possession of Firearms Require Just Compensation? 223; John Hasbo, Gun Control: A Selective Bibliography 251); Second Amendment Symposium: Rights in Conflict in the 1980's, 10 N.KY.L.REV. 1 (1982) (containing articles: Edward Kennedy, The Handgun Crime Control Act of 1981 1; Stephen Halbrook, To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791 13; Windle Turley, Manufacturers' and Suppliers' Liability to Handgun Victims 41; Richard E. Gardiner, To Preserve Liberty--A Look at the Right to Keep and Bear Arms 63; Martin Ashman, Handgun Control by Local Government 97; Ann Gottlieb, Gun Ownership: A Constitutional Right 113; Samuel Fields, Guns, Crime and the Negligent Gun Owner 141; Darell Pierce, Comment, Second Amendment Survey 155). For additional academic commentary regarding the Second Amendment, see sources cited infra notes 200-01, 209.
[13]. See infra notes 124-40 and accompanying text (discussing hyperbole in context of Brady bill debate).
[14]. See infra notes 108-11 and accompanying text (listing disparaging names used by both supporters and opponents of Brady bill).
[15]. See infra notes 46-49, 90, 104, 112, 116, 133, 166, 177, 183 and accompanying text (giving examples of fallacious or deceptive reasoning used by gun control advocates). Traditionally, the rhetoric of gun control was largely one sided, flowing predominantly from the anti-gun control movement. This perceived lopsidedness was fueled at least partially by the success of the National Rifle Association (NRA) in controlling the debate. See Alex Prud'homme, A Blow to the NRA; The House Takes an Overdue Stand for Gun Control, TIME, May 20, 1991, at 26 (asserting that NRA traditionally overpowered rival gun control organizations by having more than twice as many members and 10 times greater budget). Representative Charles E. Schumer characterized the NRA's control on Congress as a "stranglehold," coupled with an "aura of invincibility." Id. In 1991, the organization had a staff of 450, 2.6 million members, and boasted an annual budget of $87 million. Michael Isikoff, NRA Selects Hard-Liner as Gun Bill Battle Nears, WASH. POST, Apr. 16, 1991, at A5.
One factor in the NRA's dominance of the rhetorical arena has been its intimidation strategy. Consider this resolution adopted by the NRA at a 1990 meeting in response to the success of recent state and federal gun control initiatives:
WHEREAS this unprecedented string of legislative defeats and outrageous political backstabbing cannot and will not be tolerated by the membership of this Association,
THEREFORE, BE IT RESOLVED, that the membership of the National Rifle Association of America ... pledges that we shall not soon forgive, and shall never forget, the betrayals of those politicians who once sought our support and will need it again....
Members Meeting Adopts Resolution, AMER. RIFLEMAN, Dec. 1990, at 50.
Experience has shown that the NRA backs up its threats. After former Representative Peter Smith spoke out in favor of legislation to ban assault weapons, the NRA spent approximately $20,000 on a direct mail and advertising campaign to unseat him from the House of Representatives. Stephanie Saul, NRA Takes Aim at Brady Bill, NEWSDAY, Apr. 16, 1991, at 19. He lost his bid for reelection. Id. Smith said the NRA created an "aura of anger" against him that prompted NRA supporters to shoot at his campaign signs, harass his family by telephone, and try to run his mother's car off the road. Id. An NRA spokesperson said the organization does not condone such conduct. Id. Yet the unmistakable message the organization sends to politicians is that it is a mistake to oppose or hinder the NRA. Id.
The climate has changed in recent years, however. As gun violence continues to escalate, more and louder voices are being heard from the other side. A pro- gun control lobbying organization named Handgun Control, Inc. (HCI) has emerged as a formidable counterweight in the gun control debate. Michael Isikoff, The Brady Bill: Success and Growing Pains, WASH. POST, May 31, 1991, at A17 [hereinafter Isikoff, The Brady Bill]. While it still lags far behind the NRA in resources, HCI boasts a $6.5 million annual budget and a mailing list of more than one million supporters. Id. Regrettably, as this Article indicates, improved balance has done little to improve the content of the gun control debate. As more pro-gun control voices are being heard, so also is much of the same bad rhetoric suffered under the empery of the NRA. See infra notes 90-110 and accompanying text (providing examples of bad rhetoric in context of Brady bill debate).
[16]. See infra notes 46-49, 90, 104, 112, 116, 133, 166, 177, 183 and accompanying text (providing examples of bad rhetoric used by proponents of Brady bill). I make no pretense of complete objectivity. While an awareness and understanding of fallacies makes it easier to avoid them, no one can be entirely immune from the self-deception that taints his or her reasoning concerning emotionally charged issues. See infra notes 255-57 and accompanying text (discussing fallacies that arise as result of self-deception). The ease with which one can succumb to fallacious reasoning became painfully obvious to me when I reviewed an earlier piece I had written advocating strict liability for handgun manufacturers. To my chagrin, I recognized some of the same emotionally based fallacies that I attack herein. See Andrew J. McClurg, Handguns as Products Unreasonably Dangerous Per Se, 13 U.ARK. LITTLE ROCK L.J. 599 (1991).
[17]. Some evidence of the importance of this issue to the American public is found in the attention devoted to the Brady bill debate by the popular media. A search of the LEXIS Omni file on July 17, 1992, using the search term "Brady bill," disclosed 1,732 articles discussing the bill. Search of LEXIS, Nexis library, Omni file (July 17, 1992). Another indication of the issue's importance to the American people is their willingness to contribute money to the cause. The NRA's $87 million annual budget and the fledgling HCI's $6.5 million annual budget attest that gun control is a cause in which Americans are willing to invest. See supra note 15 (discussing activities of NRA and HCI).
The passion with which people hold their views concerning gun control became apparent to me while delivering presentations on the subject to high school students. During one such presentation, a young woman from rural Arkansas raised her hand and asked me to name the most important thing in the universe to me. Bewildered, I answered that it would be my daughter. With conviction seldom seen, she said the most important thing to her was a pearl-handled revolver that her grandmother had given her and that she would shoot anyone who tried to take it away from her. I encountered similar sentiments from several other students.
[18]. See United States v. Miller, 307 U.S. 174, 177-83 (1939) (reversing district court decision that National Firearms Act violated Second Amendment); see also infra notes 206-16 (discussing Miller in context of Second Amendment).
[19]. See Miller, 307 U.S. at 177-83; Miller v. Texas, 153 U.S. 535, 537-38 (1894) (dismissing Second Amendment challenge to Texas gun control statute for lack of jurisdiction); Presser v. Illinois, 116 U.S. 252, 258- 67 (1886) (holding that Second Amendment only restricts power of Congress and Federal Government, not power of states); United States v. Cruikshank, 92 U.S. 542, 553 (1875) (holding that Second Amendment does not create right to bear arms but rather that right exists independent from Constitution). In 1991, the Court declined an opportunity to interpret the Second Amendment when it denied certiorari in Farmer v. Higgins, 907 F.2d 1041 (11th Cir.1990), cert. denied, 111 S.Ct. 753 (1991). The issue in Farmer was whether the Firearms Owners' Protection Act of 1986, 18 U.S.C. § 922(o) (1988), prohibits private possession of machine guns not lawfully possessed prior to the statute's effective date. Farmer, 907 F.2d at 1042. The Bureau of Alcohol, Tobacco and Firearms denied Farmer, the plaintiff, permission to make and register a machine gun, so he filed an action for declaratory judgment and writ of mandamus to compel the Bureau to approve his application. Id. The Eleventh Circuit Court of Appeals ignored Farmer's Second Amendment claim and held that the Act did indeed impose a blanket ban on private possession of machine guns not lawfully possessed prior to the Act's effective date. Id. at 1045.
[20]. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 639 n. 14 (1989).
[21]. Id. Levinson also noted that only one article concerning the Second Amendment (other than his) has ever appeared in an "elite" law journal. Id. at 639 n. 13 (citing Don Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH.L.REV. 204 (1983)).
[22]. See PIERRE SCHLAG & DAVID SKOVER, TACTICS OF LEGAL REASONING 55-105 (1986) (analyzing reasoning defects in representative cases in areas of property law, criminal law, constitutional law, and tort law); see also Andrew J. McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist's Decisions in Criminal Procedure Cases, 59 U.COLO.L.REV. 741, 762-832 (1988) (analyzing fallacies in Justice Rehnquist's opinions).
[23]. This is not to say that the reasons given in a written opinion are the real bases for the decision. Jerome Frank and other American legal realists convincingly attacked the conventional notion that judges decide cases through deductive logic by applying neutral legal rules to objectively determined facts. See Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805, 825 (1987) (stating that legal realists demonstrated impossibility of perfectly rational judicial methodology); Allan Hutchinson & Patrick Monahan, The "Rights" Stuff: Robert Unger and Beyond, 62 TEX.L.REV. 1477, 1507 (1984) (explaining legal realists' position that deductive logic cannot resolve all doctrinal ambiguity). The realists asserted that judicial results can best be explained by reference to external stimuli that form a judge's values, prejudices, disposition, or temperament. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 119 (1930) (positing that emotions, biases, and prejudices of judges impede flexibility and predictability of judicial system); Charles G. Haines, General Observations on the Effects of Personal, Political and Economic Influences in the Decisions of Judges, 17 U.ILL.L.REV. 98, 116 (1922) (citing factors such as judges' educational background, family and personal associations, wealth and social positions, legal and political experiences, political affiliations and opinions, and intellectual and temperamental habits as key guideposts in determining which way judge will decide case); Oliver W. Holmes, The Path of the Law, 10 HARV.L.REV. 457, 466 (1897) (arguing that judges make particular choices in deciding cases because of beliefs as to community or class practices and because of policy opinions or general attitudes toward matters); see also Ex Parte Chase, 43 Ala. 303, 311 (1869) (suggesting that judicial power may be misdirected "by a fit of temporary sickness, an extra mint julep, or the smell or looks of a peculiar raincoat"). The fact that written opinions follow a logical form, the realists argued, is irrelevant because courts have great leeway in selecting the premises necessary to achieve this structure. As author Jerome Frank has written:
The court can decide one way or the other and in either case can make its reasoning appear equally flawless. Formal logic is what its name indicates; it deals with form and not with substance. The syllogism will not supply either the major premise or the minor premise. The "joker" is to be found in the selection of these premises.
FRANK, supra, at 72; see also Holmes, supra, at 465-66 ("The language of the judicial decision is mainly the language of logic.... You can give any conclusion a logical form.").
[24]. See AMERICAN BAR ASSOC., MODEL RULES OF PROFESSIONAL CONDUCT AND CODE OF JUDICIAL CONDUCT 138 (1989) (stating in Canon 3 that "[a] judge should perform the duties of his office impartially and diligently").
[25]. Early in my legal career, while clerking for the Honorable Charles R. Scott, late United States District Judge for the Middle District of Florida, I learned a valuable lesson about judging: that a primary motivation for judges in deciding any case is to avoid being reversed by an appellate court. Reversal not only means extra work, it is the judicial equivalent of having a big, red "F" slashed across a test paper. Judge Scott used to refer to the Eleventh Circuit Court of Appeals as "my master's voice."
[26]. "Sound bite" is a term used to characterize the terse and abbreviated treatment afforded by the modern television news media to the discussion of often complex social issues by political candidates, with the effect of encouraging politicians to mold their public statements wi