May 31, 2013

Right To Carry

Words have meanings. Those meanings can change over time, and along with them the concepts they represent. This is a natural function of language and it can be good or bad or neutral. When it comes to the word "Right" I wish folks were more careful, as the change I see coming is triple plus ungood.

In this post I discussed what a Right is. In a nutshell it's something necessary for an individual's growth as a human. It's part of a Natural law, which like Newtonian physics, can be reasoned and discovered. It is essential for a humans' growth when living in any proximity to other humans; in fact it is only apparent and needed when living around other humans. Now here's the really important part - Natural Rights have always existed, even before the advent of governmental systems, therefore those Rights are not something that governments are able to grant and they're off limits to any government, especially any government that purports to be good. In other words government has no say whatsoever in the exercise of a Natural right, or in the manner it's carried out.

Which brings us to permits and licensing systems...

RTC is a popular acronym for Right-To-Carry. But it's a misnomer, as it is typically used to describe a permit system. A "Shall Issue" permit system, but a permit system none the less.

A privilege is, in the context of government, something that the government grants and is therefore able to rescind. A Drivers License is a great example. You expect to walk into the DMV and as long as you pay the fee and have the right background (no serious traffic offenses, etc.) to walk out an hour or 7 later with a license to drive. In practice this is what usually happens. But the DMV can, for no reason whatsoever (unless inhibited by a state law) just refuse to give you a license. Most states have laws that outline what conditions must be met to deny, but unless specifically prohibited from denying without grounds, the DMV can deny your license without any justification.

They never do, or rarely do they ever just decline to issue a license without some rationale, which has led to the idea that a drivers license is a shall issue type of license.

But it is a privilege. Government created this and they can take it away.

"Shall Issue" licenses to carry are the exact same damn thing, only they take what is a Right and relegate it to the status of privilege, often with the help or insistence of gun owners. Some gun owners even go so far as to proclaim this a "Right-To Carry".

If I said a drivers license was an intrusion on the Right to travel, that you shouldn't have to get governmental permission to drive a car on a public road, most folks would argue with me. They'd claim it was a necessary and proper role of government to make sure people knew how to safely operate a motor vehicle. If I were to point out that upwards of 95% of people doing stupid things in traffic at speed were vetted by the state, they'd say that while not perfect it's better to have a system in place and government was the best apparatus to establish and maintain such a system.

That's because most states have required a license to drive an automobile for over a century. Culturally it's ingrained that you should have a driver's license in order to drive a car or bus or motorcycle.

In a few generations it's likely that folks will view a license to carry or even own a weapon the same way. Partly this will be the fault of gun owners who keep referring to any permit system as a "Right-To-carry".

Here in Colorado a few attempts have been made to repeal the prohibition on carrying concealed without a permit. Some of the loudest (or most quoted at least) opposition to this has been from gun owners. There are the instructors who argue that folks need training before they should be allowed to carry (that they get paid to conduct such training hardly ever comes up when asked about their opposition). There are also gun owners who think that since they had to jump through the hoops, everyone should. There are gun owners who tend to take an elitist approach and generally frown upon anyone acting on their own volition without the blessing of the state. There are also gun owners who simply think that a permit system is better cause it keeps the "wrong" people from carrying guns.

All of those gun owners that oppose permitless carry aren't arguing in favor of a Right - they're defending a privilege. They're substituting a Right for a privilege, freedom for some form of imagined security. They've decided that perfection is the enemy and embraced mediocrity, proclaiming it good.

That makes it much harder for folks like me to insist upon having my Right respected. "...but X here doesn't have a problem with permits and he's a gun owner..." is the usual retort. While it does nothing to persuade me it does give out enemies cover, or even self justification.

Imagine going to a war, and in the first battle where your up against an enemy's tank division supported by infantry, you agree to give up your anti-tank missile systems and belt fed machine guns, relying instead on the idea that they'll eventually run out of fuel and get too hungry to fight.

That's analogous to embracing or even accepting a permit system and declaring it's a right.

There are those that argue a permit system is necessary to reach a permitless system. I'd not be opposed to that if the clear goal was using a permit system to reach a permitless system. It's not. Some of the groups arguing vehemently for a permit system have in various states soundly opposed any attempts to repeal the prohibition on carry without a permit. I cannot chalk this up to a difference in strategy. I see it as a difference in goals. They're cool and groovy with having to acquire a permit.

4 and 99/100th's of states have permitless carry, concealed or open at a person's choice. (That'd be Vermont, Alaska, Arizona, Wyoming, and 99% of Montana, as in Montana a permit is only required within city limits). Vermont arguably never required a permit, and that was affirmed by a court decision (110 years ago yesterday in fact) stating that a local law criminalizing carry was "...repugnant to the [state] Constitution and to that extent void."

But almost 5 out of 50 states have recognized the actual Right to carry. Florida's "Shall Issue" law came into being in 1987. A child born that year is old enough to become a u.S. Representative (though I'd hope all children born that year can find honest work instead), yet I've not heard of any serious effort at recognizing a Right to carry a weapon and making the permit system optional. Hell, it's still illegal to open carry in Florida unless you're hunting, fishing, camping or target shooting. Less than 1% of u.S. states recognize a Right to carry despite over a quarter of a century of "Shall Issue" laws in some places. That does not lead to the conclusion that most "Shall Issue" proponents (at least the groups) desire a permitless system.

Legislatures hate losing power, just as any branch of government does. Convincing them to relax or repeal a prohibition on carry is difficult, but when they do it it's generally with the understanding that they have the authority to make that decision.

Smoking bans. Here in Colorado the legislature, several years back, decided to prohibit smoking in buildings the did not own. Proponents of the measure rejoiced as they could now go out to the bar every 4 months as was their custom without having to endure the smell of smoke on their clothes when they returned home. But they failed to realize that they vested the power to intrude on Property Rights within the legislature. In short, if the opposition could get enough votes in both chambers and a governor int he mood to sign it, they could not only repeal the smoking ban, but mandate that property owners allow folks to smoke whether they liked it or not.

The same danger lurks for proponents of "Shall Issue" systems - once you cede power to a legislature it's awful hard to convince them that they're out of bounds in that area. All it takes is a bit of Califorming in a general assembly and you can watch "Shall Issue" devolve to "May Issue" or even a "No Issue" system in a single session.

"...but the courts aren't usually on our side, so we have to go to the legislature to get anything done..." No; the courts aren't usually on our side. In 1930 it'd be a fair assumption that most courts didn't care for black folk either. But through a very difficult, multifaceted approach the courts eventually decided "separate but equal" wasn't. In the 1960's I don't think most courts were overly fond of gay folk. But through a multifaceted (and very "in your face") effort gay couples are getting married in some states.

Another aside - marriage isn't a Right. Any government can decide that you and your beloved don't get that little slip of paper, sometimes without cause, or sometimes by an act of a legislature. But it's a privilege license granted by government, and therefore it's able to be rescinded or denied by government. Cohabitation with whomever you wish (as long as it's consensual) is a Right, but marriage isn't.

My point is that the legislature is never the ideal method to have a Right acknowledged or respected. Sometimes it's the most immediate venue, but never the ideal. The courts are treacherous but they are the best hope for recognition of a Right, barring a constitutional amendment or convention.

Parking lots. A few gun owners, some of them I consider good pals, advocate to have the government intercede and force property owners to allow weapons on their properties against their wishes. This is wrong for the same reasons that smoking bans are wrong; it weakens Property Rights in general (which is what the Right to own and carry weapons are) and it cedes to the legislature the power to control that aspect of carrying weapons. A legislature, once empowered to mandate something can turn right around and prohibit it. So if a state enacts a law that says property owners must allow people to carry weapons on their property, with a little bit of Califorming the next session could see a law prohibiting the carry of weapons on someone else's property even with their consent.

To expound on that I'm not in favor of laws criminalizing unwelcomed carry specifically. If I carry on someone's property against their wishes and am caught, that person should be able to demand that I leave. If I refuse to leave then I should be charged with trespass, as all non violent intrusions on someone else's property should be treated.

",,,but what's in my pocket is my property, so my Property Right would be curtailed if someone can kick me off of their lot for having it...". Nope. A property owner, under a lucid Property Rights theory, can deny your entry or occupation for any reason what so ever. Race, gender, the color of your shirt, the number of earrings in a given ear - anything. The proper remedy is to not patronize such a property owner if they conduct a business, not to have government step in and intrude upon Property Rights.

Let's say I own a tavern. Let's also say that I have a peanut allergy. I post a big sign that says "no peanuts or peanut related products allowed" right at the entrance where everyone can see it as they enter. If I catch someone with a bag of peanuts I'll ask them to leave. If they refuse I'll forcefully remove them, or have the cops come arrest them for trespass. The peanuts they have are their property, no question about it. But it does not impose upon their Right to property by denying their admittance to my tavern. They are able to possess their peanuts on any public property, or any private property with the owners consent. A law saying I had to allow folks with peanuts would not only weaken my Property Rights, but theirs, as they'd have granted authority to the government to decide what kinds of property are allowed on another person's premises.

So parking lot bills are bad,as they weaken the foundation that carrying arms rests upon - Property Rights.

A Right is something government should not interfere with. That goes for prescriptions as well as proscriptions. The more we confuse a Right with a privilege, the more tenuous our position becomes, and in case you haven't noticed, our enemies have time. They can wait a decade or two if they must. As we negotiate, haggle and try to get the upper hand in a deal, we give them ammunition to use against us - namely that the government should have some or any say in who may exercise a Right and how they may do so.

The principle is simple: a person has the Right to own, possess and carry any weapon without government interference. That has to be what we fight for, or we'll lose. That is the Right we have to defend, not a privilege system where we hope a tweak can be made to let the chains rest a little lighter on our wrists (or maybe even get padded shackles next session!).

So it's not "Right-To-Carry' that's usually discussed in those terms; it's "Privilege-To-Carry", and the longer we equate the two, the more difficult it'll be to hold on to what we have, let alone make any advances into having the actual Right respected as it should be.

Posted by Publicola at May 31, 2013 01:33 AM | TrackBack