October 20, 2004

Absolutisim 101: Prior Restraint

This will be the first of several posts dealing with the Absolutists' views concerning the Right to Arms.

There's been some talk here & there about the next step for gun owners who support the Right to Arms. Some argue that we should simply try to maintain the level of gun control laws we have now. Others argue that we should press forward & start repealing some of the more heinous gun control laws. Still others argue that we should launch a massive offensive on multiple fronts & eradicate all the gun control laws.

But why?

There are a number of people who favor less gun laws but not a total lack of them. & to a point I can agree: some gun control laws are necessary, but not in the way you think.

Gun control encompasses two types of laws: those that punish an action & those that punish a condition. The latter is commonly called prior restraint based law. It seeks to stop someone from harming another by stopping them from having the means to do so (in general at least). For example one could argue that since sawed off shotguns are used in robberies that if we punish people when we find sawed off shotguns on their persons then we keep them from committing a robbery. To an extent this is true, but it is no more valid than saying that we can stop robberies by arresting & incarcerating everyone for speeding. It can also be said that if we arrest people for breathing that we will stop them from committing robberies. In individual cases yes, it does prevent that person from robbing another person, but at the same time it prevents them from choosing not to rob another person. In any event you get the idea. Prior restraint based gun control laws punish a person for merely carrying or possessing a weapon.

The former type of law (that punishes actions that are directly, not just potentially harmful) are not what most talk about when abolishing all gun control is brought up. No one wants robbery or murder to be legal. Not even me. So I do support some gun control laws, just not ones based on the concept of prior restraint.

But why are prior restraint based laws so bad? On the most basic level because they rob us of Free Will. They set out ot say that if you have a certain weapon, or if you're a certain class of person, or carrying a weapon in a certain manner, then you're going to commit some other, more serious confrontational crime. It assumes we have no choice as to whether or not to commit the more serious confrontational crime. It punishes us for having the potential, not the intent, of harming someone else unjustifiably.

I assume most of my readers are men. Imagine a law that punished you for possessing a penis. If you have trouble imagining such a law then ask your wife (or girlfriend) to explain it to you the next time she's pissed (especially if it's due to some real or imagined jealousy). The law that punishes you for possessing male genitalia would be based on the idea that since you have the means to be a rapist, then you cannot or will not choose to refrain from ravaging some helpless lady, & therefore you will be punished for it.

Now for the two lady readers I have, imagine a law that punished you for having a vagina; the theory being that since you have the potential to engage in prostitution then you're guilty & will be punished as such.

Both of those examples are no different (in theory) than prior restraint based gun control laws: because you have the potential to do something wrong then you must be punished for it. It does not matter if you never dreamed of hurting another soul in any way, you will be punished if you possess the capability for it.

An argument I frequently hear is that law enforcement needs to be able to make an arrest based on mere potential in order to prevent crime. The classic straw man is a guy gets stopped for a broken tail light & during the course of the encoiunter the cop finds the machine gun he was going to use to rob a bank. If laws didn't heavily restrict the possession of machine guns then the cop would have been powerless to stop him from robbing a bank.

Here's what wrong with that: substitute cars for machine guns. If the person had been arrested for possessing a car that would have prevented him from robbing the bank just as effectively right? So why not ban all cars? Here you have the root of the problem: arresting everyone with the potential for harmful action is impossible unless you simply arrest everyone. As much as pro-law enforcement folks want to give cops every "tool" they ask for even they wouldn't go so far as to advocate banning all cars to prevent the handful of bank robberies we have every year.

In South Carolina it's a crime to possess "burglary tools". I know this because a dear old friend from high school (actually elementary school) is sitting behind bars right now for possessing them. & to be clear, he should be sitting behind bars because he possessed them before, during an after breaking into several places in order to feed his crack habit, but that's another topic altogether. I haven't looked it up in a while, but if I recall correctly "burglary tools" are defined simply as tools useful for breaking & entering. We're not talking about lock picks or other specialized items; we're talking common tools you probably have in your house right now. My friend used a crow bar, a screwdriver & a hammer. In other words South Carolina has more than a few Eastwings (a brand of hammer) lying in evidence rooms marked "burglary tools".

Now imagine if the SC cops started arresting people, & the local D.A's started prosecuting people because they possessed "burglary tools". Every hammer, screwdriver, tire iron, crow bar, etc. would be grounds for arrest. Have you ever driven someplace with a hammer or tire iron in plain sight? It's not practiced, but in theory SC could start doing just that: arresting everyone for possessing hammers as they'd qualify as "burglary tools" under state law. Luckily SC has a little more sense than to vigorously prosecute under the burglary tools law, but you get the point.

So the first reason that prior restraint gun control laws are bad is that they punish potentiality rather than actuality. The second reason is that they're largely ineffective.

I'll skip over the lecture on the laws of supply & demand & summarize by saying that a person with harmful intent will get whatever item he/she deems necessary. The ones who are affected most severely are the ones who would follow the law (even unconstitutional laws) no matter what. Let's look at two hypothetical people: a church going accountant & a career burglar. Odds are the church going accountant will try his damndest to not disobey the law. He won't be acquiring any verboten weapons, or carry weapons in a proscribed manner. The career criminal however will disregard laws concerning mere possession. He's looking to break into house, or rob people face to face. Do you really think he'll seek new career options because it's illegal for him to own a certain type of gun or carry it in a certain manner? So the criminals simply turn to the black market while the law abiding folks do without.

The third reason they're bad is that they set a dangerous precedent: that it is alright to punish some potential. Here's where Eugene Volokh should chime in about the slippery slope. Once it's established that you can punish people for having mere potential for harm, then it's not a far stretch to enter a system of negative law (where everything is illegal unless specifically allowed) in that area. In other words if machine gun possession is banned it's not a far stretch to ban possession of semi-automatics & from there manually operated repeating firearms. (In fact the "Assault Weapons" Ban had an appendix that listed semi-automatic firearms that were specifically exempted, which would be a precursor to outlawing everything except what the government lists as okay, as opposed to now where we have a list of the types of firearms banned & all others not falling within the specifications of the list are legal.)

Now people within the Right to Arms community have been debating on the course of action to take (as I mentioned at the beginning of this essay). I think a great deal of confusion still exists as to what gun control encompasses & what people mean when they advocate an elimination of all gun control laws. as I said before most people assume laws prohibiting murder or robbery would be include in the Right to Arms Absolutist's wish list. This is not the case. What the Absolutists are speaking of is prior restraint based law.

Now we get into something a bit stickier: how to execute the Absolutist's plan. See most gun owners stall when they think of a fellow getting out of prison after three years when they robbed someone or tried to kill someone & that person being able to walk in the local hardware store & buy a Tommy gun. Never mind that on the black market anyone can get anything they wish, the thought of it being legal bothers them.

What we have now is a system where certain offenses (those punishable by more than one year incarceration, or those misdemeanors involving domestic violence) result not only in jail time, but in a lifetime (in most cases) denial of certain Rights. Voting, traveling freely (at least for a certain amount of time) free association, & owning & possessing firearms are all lost upon a felony conviction. Some people can accept this as a suitable punishment for certain crimes, but when it's brought up that the person could be convicted of a non violent felony & be sentenced to only one day in jail & still be subject to the disqualifications then they usually start seeing that it isn't quite right.

There are still some who will argue that any violation that constitutes a felony shows poor judgment on the offender’s part & therefore it's reasonable to use non-violent offenses to prohibit weapon possession. The problem with this is in defining the disqualifying offense. We've all done things that were regrettable to one extent or another & generally we learn from our mistakes. So messing up & getting caught when your 20 should not mean that when you're 50 you are a felon for owning a shotgun for home defense. Also most people are capable of being extremely responsible in one area of their life while not being as responsible in another. Know someone with perfect credit but an extremely messy house? Or vice versa? I know a few people who can't seem to stop drinking though they never even contemplate driving while drunk. A lack of judgment in one area does not mean they'll have a similar lack of judgment in all areas. & mistakes made are not eternal evidence of unworthiness. Now before the straw men start flying, I'm speaking of non violent offenses.

What about the violent confrontational crimes? The solution for those types of criminals lies not in prohibiting their behavior once they get out, but in not letting them out until they can be trusted. Rob a bank? 20 years with no parole. Murder?
Then if you miss your appointment with the firing squad after 30 years or so actual time served we can start talking about letting you out. In other words lock away the violent offenders for long periods of time to separate them from society. If they serve their time then restore them fully. If they can't be trusted don't let them back into society period.

Now I'll grant these are all generalizations & each facet can be explored much more in depth, but there are reasonable plans for the Absolutists goal of eliminating all prior restraint based gun control. Nothing will work out perfectly, but I for one am a firm believer in the idea that the problems associated with too much freedom are preferable to the ones stemming from too little freedom. We understand our way won't lead to utopia; we just believe it'll lead to a better way.

Posted by Publicola at October 20, 2004 06:18 AM

That's a nice essay that outlines a lot of my own concerns about prior-restraint laws. The problem as I see it, though, is that guns and gun owners will continue to be subject to such law because the government is involved in every facet of firearms, from licensing the inventor or manufacturer all the way until the last registered transfer of the firearm on paper. And guns, unlike cars, are much easier to prohibit without raising the ire of the entire populace, unlike cars. If F-Troop started going door-to-door for the guns it would anger the gun owners but not too many others. If they went door-to-door for our cars, the agents would be slaughtered before they could clear a single neighborhood of the vile, crime-causing, environment-polluting automobiles.

Posted by: Kevin at October 20, 2004 11:04 AM

Well said, sir. I'm one of those Second Amendment absolutists. And yes, it's the prior restraint that causes the real problem. But why do laws against murder, assault, theft, etc, need to mention firearms in any way? Firearms are a powerful tool that can be used for offense or defense. So are screwdrivers, knives, fists, feet, heads, etc. There is no reason for any law to specifically mention the tool used to commit a crime. Only the severity of the crime itself, the harm done to the victim, needs to be considered.

Posted by: Bill St. Clair at October 22, 2004 04:19 AM
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