This post is not about the virtues or detriments of of gun control specifically. It is more about the philosophy behind the positions. If you want to argue about gun control policy specifically, I recommend doing so in the preceding thread linked below.

Last week, in my vent about the gun control debate, Murali asked the very sensible question… what’s so wrong with gun control:

Unless you are an anarchist, you think the state is justified. Moreover, one of the basic functions that you think the state can legitimately perform is internal security. Clearly there are some ways in which the state may infringe your property (or more properly your holdings) or else the state could not even tax you to fund a police force. Clearly too, there are some measures which the state may not take (e.g. the patriot act) to ensure security. {…}

Weapons are not morally innnocent property, but belong to a type which is intended to inflict violence, something that is prima-facie illegitimate.

A weapon is a tool that is intended to inflict violence or the threat thereof. Even in defensive uses of a weapon, the weapon has defensive use only because it can threaten the aggressor with violence.

The precise justification for the existence of a state (i.e. an entity which maintains a monopoly on the legitimate use of force) is that the complete liberty to use force as and when you see fit would be horrible if everyone had it. The basic fact is that it is very nearly always an improvement of the state of affairs when this liberty is curtailed to some significant extent. Just thinking how far away we are from a Hobbesian state of nature in terms of our liberty to inflict violence on one another as and when we see fit and correspondingly how much better off we are as a result underwrites the justification for the state. That is to say, to say that the state in general (or in most cases) is justified just is to say that the delegitimisation of most private violence is justified.

My response was that I am not in favor of gun ownership as a universal right, but rather that it’s context-independent. I might well support rigorous gun control in Singapore while opposing it in the United States. There are a number of reasons for that, involving history, geography, and culture. Which Murali describes as a “pragmatic matter.”

That’s partially, but not entirely correct. I almost said as much in the thread, but Gabriel touched on it himself:

For me, I’d say it’s almost completely pragmatic. But sometimes some measures are so impracticable that to pursue them would be almost a wrong in itself. Not that there isn’t potentially a lot that can be done, like registration or coding bullets with identifying information, and perhaps requiring owners to carry liability insurance.

I also believe in something like a natural right to self-defense, which implies in my opinion the right to legal access to some of the means of self-defense. Those means don’t have to be firearms, but in a heavily armed society, I’m willing to concede that such access is part of the right.

When it comes to hunters, I don’t have a problem with them. I don’t particularly want to get in the weeds over whether they have a “right” to their firearms (leaving aside the question of the 2d amendment) or whether it’s merely sound policy to let responsible people hunt.

The middle paragraph is important. In a context where you could actually keep guns out entirely or almost entirely, and where guns are not embedded deeply into the culture, it seems highly desirable to keep them out of the hands of the people. However, once they are widely available, it’s not just impractical to try to put that cat back in the bag, it does border on the immoral. That is partly because, as Gabriel says, a general right to self-defense. But it’s also because of how troublesome it is to make harsh laws against what is culturally commonplace. Which brings me to Christopher Carr’s post Over There about Saudi Arabia’s caning an elderly man and whether or not we can call that barbaric. To which Maribou responded:

My problem with these kinds of comparisons is that “our” society is very difficult to view objectively, and so trying to compare it with another one is a tricky business.

Is it really so much better to lock people up in prison for years or decades for smoking pot?

It’s not like long prison sentences don’t carry the same kind of risks to life and limb that caning does.

(I think it’s abhorrent, what is going to happen to that man, and what happens to women in Saudi all the time. I just think our equally abhorrent things get a cultural pass, so there’s not much point in trying to valorize our own culture based on its ideals rather than its practices.)

And Dragonfrog added:

I came here to make that point.

I have seen nothing to dissuade me from holding that drug prohibition has to be considered as a whole – whether the prohibited substance is ethanol, caffeine, THC, morphine, cocaine, LSD, etc., it is either barbaric, or it isn’t. There don’t exist two categories of drugs, one of which one can non-barbarically prohibit and the other of which one cannot.

Given the above, the only question that might produce a contrast between Saudi Arabia and the US or Canada is whether caning is more or less barbaric than imprisonment or asset forfeiture.

First, I would say that “barbaric” is an awfully heavy word. And with that, even if our own failings in this regard do not approach Saudi Arabia’s, they’re close enough that it’s hard to see how the line between here and there being the line between “civilized” and “barbaric” is anything but a self-interested rationalization. If they are barbaric, then so are we. And if we are not, if we can (even while disagreeing with our own policies) see nuance, Saudis should be afforded the same generosity of nuance.

At the same time, if Dragonfrog is arguing that prohibition is an all-or-nothing deal, that we cannot view differently a society throws people in prison for dealing in lactose milk due to some religious observance and one that throws people in prison for dealing in cocaine… I can’t really agree with that. They may both be barbaric or neither be barbaric, but they’re in different points along the spectrum.

While I do not presently favor blanket decriminalization, I don’t defend the War on Drugs, or the hard hard we use in its enforcement. taking a soft hand, of course, may result in more people doing more drugs. At the very least, a War on Drugs that is never fought definitionally cannot be won. That means, among other things, accepting that people are going to die doing (many) drugs. They’re going to ruin their lives. Of course, the War on Drugs hasn’t stopped any of that. But what if it could? Or rather, what if it could make it exceedingly rare? Would you support it then? A lot of libertarians wouldn’t. I might.

The War on Drugs ruins lives. It rips children away from their parents. It sends otherwise relatively law-abiding individuals to prison. Fathers, sons, mothers, daughters. It can wreck the lives of people who would otherwise never harm anyone. To be willing to do that, you must have a degree of confidence in your success. To do otherwise isn’t just a misallocation of resources or unwise policy. It crosses the line from being merely misguided to being actively harmful dependent entirely on the context.

And that’s where I’m coming from when I talk about taking a different view on guns depending on the context. In that sense, it really is a matter of pragmatism. However, it doesn’t really stop there.

A light-handed approach would be largely ineffectual. A heavy-handed one would be actively harmful. Like the War on Drugs, it would be unsuccessful in the United States. Geography, history, and culture. And we would be left with the choice of throwing fathers, mothers, and sons into prison. Of taking children out of their homes and putting them into a foster care system that is more dangerous than a home with a gun in it. Throw in prosecutorial discretion, and you likely have selective enforcement and racist enforcement. You likely have escalating sentences to keep induce more and more compliance. Pursuit of the goal of getting rid of most guns in this country would likely require burning the village to save it. And then, not actually saving it. That may not be the goal, but I do see it as the result.

Nobody envisioned flashbombing cribs when it was decided that drugs should be illegal. We got there through an increasing desire to win The War and, perhaps most importantly, an increasing indifference to offenders. The amount of animosity towards gun owners is already immense. Gun owners injuring themselves is joke fodder or and just last week a writer at Salon said injuring them should be public policy. And in a way, it’s rational. If these people are responsible for the deaths of countless others, why should they be treated as people and not like any other criminal? Why should they be immune from jail? And on and on.

But that’s what something being illegal means. You can have intermediate steps. You can have jail as the last resort. But the more stubborn the populace, and the more justified they see themselves as being, the more people you’re going to have to take stronger measures against. That’s the question that you have to ask yourself. You have to break eggs to make an omelet. But understand the eggs, and understand the omelet. Breaking eggs to know end isn’t just impractical.


Category: Statehouse

About the Author


17 Responses to What Illegality Means

  1. Murali says:

    Hi Will, two things:

    1. I think you mean context dependent.

    2. I was using the word pragmatic loosely in a way that includes everything that you and Gabriel mention. I suppose, a better way of drawing the distinction is between first order and second order concerns. It is a first moral order concern if it would be wrong even if you could press a button that magically took away everyone’s guns and there was nothing they could do about it. That is, the end itself is impermissible. It is a second order moral concern if it is wrong because people would greatly resist and anything remotely resembling efficacy would have to involve lots of violence to lots of otherwise law abiding persons. That is, of the available means to the end that are humanly possible, none are permissible (though there may be fantastic but still logically possible and permissible means of achieving the end).

  2. oscar.gordon says:

    There is also the consideration that the wrong thing is being targeted.

    In the US, violence continues to trend down, firearms violence continues to trend down, and I think mass killings (4 or more dead in a single event) are holding steady or declining (no time to hunt down the stats). This despite the ready availability, and depending on who you believe, the rising popularity of firearms. Toss in the complete lack of correlation between gun laws & violence, and has to wonder where the real problem is (I have my suspicions and they cross all the lines).

    What we do have is an issue with spree killers. Even if they are rare, the fact is they are, largely, in it for the headlines. This makes the issue social & cultural and not something further control or a ban will address. If, as Murali suggests, all the privately held guns were to magically vanish, we’d still have a problem with spree killers*. They’d either keep going with guns & attack police to get them**, or they’d switch methods***.

    *My fear is that because we are not seriously trying to address the mentality and are instead getting distracted by tangents, that spree killers will just keep raising the stakes, going for higher & higher body counts & damage.

    **And won’t that just make our social relationship with the police so much better!

    ***Because really, would everyone feel better if someone walked into a kindergarten class with a machete and re-enacted the march of the Posleen with school children? Same horror, same media attention, not a bullet fired.

    • aaron david says:

      That actually gets at one of my pet peeves. When something like Ferguson happens, the collective we immediatly jump to racism as the issue.

      But what if that is not the issue?

      If we jump like that and target the wrong thing, we will not halt the problem. My feeling is that this isn’t so much racism, but police power and lack of accountability. But because we are targeting the wrong thing, because it garners indignation, we give the wrong proscription for the problem. If it is X and not Y, all the steps we take to alliviate X will not stop the problem.

      That said, if it is not guns, not racism, all of the steps we take to alliviate those issues will not work. It is like building stairs to an attic you don’t have, when you need new steps into the basement.

      • oscar.gordon says:

        Well, to be fair, in Ferguson Racism was a component, but the unchecked power of the police, and their lack of oversight / accountability allowed racism to foster/fester into the pathology we saw.

        Blaming it all on racism, however, allows the police (& in many ways, governments at all levels) to once again dodge the question of “Do the police & prosecutors have too much power?”

  3. mike shupp says:

    What’s interesting, sort of, is that this is not the only period in American history where the control of people running around with guns was an issue. There were young, angry, emotionally over the top guys with guns running around the streets of Dodge and Kansas City and Abilene and so forth back in the 1870’s and 1880’s as well. And they frequently pulled out those guns and used them on each other and on lawmen and on peaceable citizens. Memories of this have even entered American culture, both in novels and theatrical form! Some of those real-life young men even became for their exploits, just as certainly as young men with guns seek fame today.

    And yet by say 1900, this great age of 2nd Amendment Enthusiasm had come to end, except maybe in Chicago. And nobody knows why. It would appear that lawmen in some localities zealously enforced anti-gun ordinances, though this is unclear — Supreme Court records for the period are strangely free of 2nd Amendment enforcement cases (proof that liberals have been doctoring the historical record for a loooong time!). Sadly, history suggests there may have been links between firearms control and racisim — our histories are reticent about the actions of young black armed men before the 1960s, and an unctuous veil of political correctness has covered the deeds or misdeeds of armed Native Americans.

    Very strange, isn’t it? And no one remembers this stuff any more.

    • oscar.gordon says:

      Oh, I remember it. Local law did tend to tell people to check their firearms at the border/door.

      I also remember the local law having a place to check said weapons, and that said weapons were promptly returned on the way out the door.

      Certain places still do that (my local courthouse does). You check your arm with the guard, he gives you a claim ticket. When you leave, you get it back. All very pleasant & professional.

      But that was a different time, when local law was much more informal & free wheeling.

      • Murali says:

        Didn’t incorporation put an end to local police force being able to ask citizens to check their fire arms?

        • mike shupp says:

          Beats me. I think the real issue may have been population increases — if you’ve got a town of say 300 people and every other week 6 cow hands show up wearing pistols for drinks and visiting the working ladies upstairs, that’s one thing. And if you’ve a city of 3000 people and 60 armed guys come to town each week, that’s a whole ‘nother thing and the citizens and local lawmen and lawmen from neighboring communities are going to treat those armed men differently.

          but beyond that, I was trying to make a point that social customs have an effect on gun carrying and gun usage and the effects might be more flexible and more acceptable than laws and courts and so on.

          Not to jump up and start preaching about it, but to toss the notion out for discussion (Hit Coffee seems a good place to raise such ideas and get responses from sane, intelligent readers).

        • oscar.gordon says:

          Mike,

          I was making that very same point over at OT. Laws can have an effect, but culture & social mores can have a much larger effect.

          Our social mores regarding firearms are schizophrenic. In some places they are great, in others they are a complete mess, and those two places can be within a few miles of each other.

        • That’s probably it, Murali. Ca. 1900, 2d amendment rights would not have been considered an issue applicable to the states. As far as the federal courts were concerned, that might have been the case as recently as 2007, although I don’t know and wouldn’t be surprised at all if people had brought state laws to federal district and maybe even appellate review.

          But when the McDonald decision was handed down in 2010, the 2d became incorporated.

          At least that’s my understanding. I’m not a constitutional law scholar, and when I comment on such things, I usually get it wrong at least half the time.

    • Will Truman says:

      Good to see you again, Mike!

      • mike shupp says:

        Ah… last time I made a comment here, you dumped on me as a “Killjoy.” Now that I have a gun on my hip…

        Truth is, I hit your site 5-7 times a week, just about every day (more Lain and Clancy coverage, please!). But you’d be damned tired of me if I made a comment every time I came by.

        Hell, I’d be tired of me. There’s got to be more to retired life than becoming an internet troll!

        • trumwill says:

          Well, if you just wouldn’t actually be a killjoy, then I wouldn’t have said that!

          (“Killjoy” is just a trumwill affectation. I wouldn’t make anything significant out of it. Some joy probably needs killin’)

  4. Will,

    I’d parse “illegality” into three parts along a spectrum:

    1. “Against public policy”: The state chooses not to legitimate a certain practice and refuses to enforce agreements pursuant to that practice. Anyone who engages in that disfavored practice can be compelled to cease doing it and if that person refuses, then that person can face charges.

    2. “Criminality”: An actual law is passed forbidding people to engage in such activities and provides penalties for it, including fines or jail time, especially if people conspire to do that illegal activity.

    3. “Super criminality”: The law in point #2 provides the types of penalties we’d expect to see for some of the more serious crimes, such as multiple years jail time. The state also assumes to itself (or is granted by the legislature) or exercises preexisting prerogatives to put the screws on people who engage in that activity. I’m thinking of things like civil forfeiture.

    I’d say that when you’re talking about what an aggressive anti-gun policy (and what the actual the war on drugs) looks like, is something that approaches my point #3 end of the spectrum.

    (By the way, thanks for the shout out!)

    • trumwill says:

      I think that’s fair, and I actually meant to change the title before publication. It was originally going to be more general about illegality. That’s a pretty valuable contribution. I might actually follow up on it!

  5. Glyph says:

    Very nice piece Will. I don’t say this enough, but I always find your writing and thinking very cogent, measured and orderly; you ‘show your work’, in that the conceptual building blocks that lead you to your conclusion are always stacked neatly on clear display. It’s a shame that you are often reticent to post pieces like this Over There, but I understand that sometimes it’s just not worth the heartburn.

Leave a Reply

Your email address will not be published.

If you are interested in subscribing to new post notifications,
please enter your email address on this page.