Balkinization  

Saturday, December 15, 2012

A Thought Experiment

Gerard N. Magliocca

Take an act that is fairly common, generally legal, and is considered by many people to be wrong. Those people argue that the act should be banned or highly restricted.  Others contend that the right to engage in the act is a fundamental individual right.

Those who advocate a ban (or strong limitations) concede that many people determined to engage in the act will violate a prohibition with adverse collateral consequences.  Nevertheless, they say that we will be better off if the act is illegal, in part because fewer people will do it and because invoking the law will change the culture by expressing our collective view that the act is wrong.  Those who reject the legal remedy concede that the act is a second-best solution in many cases, but that making the act unlawful will cause more harm than good by driving it underground.  Besides, they say, a ban will not change how people feel about its morality (or, for the most part, how many people do it).

Another school of thought argues that if people think that something is morally wrong and harmful to society, the answer rests not with law (except in extreme or narrow circumstances) but with persuasion to convince people that they should choose alternatives to the act.  This could, in time, lead to a better nation if fewer people do what you think is terrible.

Now what I am talking about?  Abortion or gun ownership?

Comments:

"Morality" is more often used in debates over abortion.

Also, "alternatives to the act" works better when we are dealing with an act (abortion) as compared to something like gun ownership (which is a sort of "act," admittedly, but the word is more forced there).

There is clear overlap and those who want to ban gun ownership often use moral arguments and find guns distasteful in general.

But, on a test, I think "abortion" would be the best answer. Multiple choice tests as we know often have a second best answer that is fairly reasonable, of course.
 

One could also easily add "drug prohibition" to the list of alternatives. I think that the comparison between abortion and gun regulation is misleading: Those who are anti-abortion (logically) call for its complete prohibition because they regard the act as the equivalent of murder. But, ironically, it is the NRA who accuses all proponents of gun regulation of being secret prohibitionists who would bar the possession of firearms by everyone. Most supporters of further regulation, though, insist (I think sincerely) that they are not seeking prohibition.
 

I don't see why the same answer has to apply in both cases. It seems to me that the consequences should be treated as a matter of fact, not logic.
 

Seriously? Gun ownership is "morally wrong"? It's a pretty rickety parallel, seems to me.
 

The argument is made, jlundell.

If someone, and millions do, think guns are dangerous to the well being of society, it is not really silly to think it is immoral to own them.

The argument can be refuted, but the very making of it is far from silly, imho.
 

The thing I am thinking of has inherent dangers and risks, many of which can effectively be addressed by regulation and government oversight, which would necessarily impose some conditions and restrictions -- but not an outright prohibition -- on the thing.
 

"Most supporters of further regulation, though, insist (I think sincerely) that they are not seeking prohibition."

We have reasons for believing that most supporters of further regulation are seeking prohibition.

1. Until the McDonald decision, local prohbitions were in place in some jurisdictions. Did advocates of further regulation ever attack them as going too far? Or did they defend them against attempts to roll them back?

The latter.

2. Many proposed regulations are written in such a way as to be hugely over-inclusive. Bans of supposed "armor piercing" ammo, which would ban almost all hunting ammo, for instance.

3. The fact that the gun control movement started out with a professed aim of prohibition, and only switched to regulation after finding this aim too unpopular.
 

Brett

Did even DC or Chicago have a total prohibition on all firearms?
 

For all practical purposes complete, unless you were politically connected.
 

I'm not seeking prohibition, I want a strict Constitutional solution. Muzzle loaders only. All other firearms banned.

Except for Brett's ex wife. She can carry whatever weapons she wants to carry.
 

Brett

I couldn't have an unloaded, triggerlocked or unassembled long shotgun or rifle in pre-Heller DC and pre-McDonald Chicago?
 

"most supporters of further regulation are seeking prohibition"

Those who long term support regulation the strongest are more likely to actually support the gun prohibition of the sort Brett is against. This amounts to about 1/3 of the population at best.

Others support various types of regulations, just like many support various types of abortion regulations. The support of, e.g., minor parental notification laws for abortion might be ill advised as policy, but quite a few don't want to ban abortions.

This is so even if some vocal abortion supporters suggest, ala Brett, that they do.
 

"I couldn't have an unloaded, triggerlocked or unassembled long shotgun or rifle in pre-Heller DC and pre-McDonald Chicago?"

You could have a non-functional firearm, if it was registered with a city which almost certainly would refuse to register it. If the pre Heller/McDonald laws in D.C. and Chicago are your idea of a policy meaningfully short of prohibition, I don't think you have an at all common understanding of the word.

Bottom line is, the people who "only" wanted regulation refused to say that the absolute most restrictive jurisdictions in the country had gone too far. This provided us with a useful reference as to what they considered "reasonable", and it was nothing most people would use that word for.
 

Brett

Can you point me to some evidence that DC or Chicago 'almost certainly refused to register' rifles and shotguns to be kept triggerlocked in the home?
 

Marital infidelity. Promiscuousness.

Self defense. Hunting wildlife for sustenance or sport.

An artful poll taking organization could frame a survey that would elicit plurality support for pro or con in either subject area

Abortion.
Bearing-arms.

One function of law is to place limits on the behavioral outliers. Rhetoricians will claim more law will prevent excesses.

But these are old topics, and society ultimately is not going to accept a simple solution. A single law creating an oversimplification will go the way of the laws that created a short-lived era of Prohibition in the US.

Admittedly, the subjective distillations I have offered here to the way the question is posed by prof. Magliocca, disagree with some of the stated conditions, e.g., 'fairly common act that is generally legal'...'fundamental individual right'.

I tend to agree with several commenters' side-discussions, including the direction taken by prof. Levinson.

Heller examined individual right in depth, especially in one of the lengthy amicus briefs. I doubt there ever was an abortion case pivoted on 'fairly common act...that is generally legal'. Though the act that created the life that abortion ends was perhaps 'fairly common', it might not be 'generally' legal.

One difference between the nonlegal realm arguments that would develop around the bearing-arms question, as compared to the abortion rules, is the latter disputes are permeated with a special approach to personal morality; whereas the gun-bearing discussions relate much more to depictions of the external world and personal freedom.
 

I'm not in a state of mind as yet to comment on Gerard's thought experiment. Media coverage of the recent CT tragedy is wall to wall. Pundits quickly offer their thoughts, too quickly and often not thoughtfully. But what really shocked me were two posts by Eugene Volokh at his VC Blog:

"Do Civilians Armed With Guns Ever Capture, Kill or Otherwise Stop Mass Shooters?" (posted 12/14/12, 3:32 pm, with 757 comments at this time)

""A Thought Experiment Related to School Shootings" (posted 12/14/12 9:29 pm, with 607 comments at this time)

These posts may have been spontaneous or perhaps considered in advance by Volokh to address clamor for gun controls following mass killings by shooters. I did not read that many of the comments. But what seems clear is that Volokh, the VC's usual suspects, NRA and gun rights yahoos continue to make the case that the more people armed with guns for self defense, the safer we all will be.

Meantime, I am preparing for secular peace on earth and goodwill to mankind as I hope my four children, their spouses and my one grandchild will be here for the holidays.
 

The new. AATF
The Bureau of Abortion, Alcohol, Tobacco anf Firearms.
And gambling? Is abortion like gambling?

Only in the minds of ideologues does abortion weaken the social fabric of society.
Alcohol does more damage, and there's actual evidence to back that up.
Look at the history of arguments for and enactments of prohibition of various acts.

But society chooses which commitments to make and how to follow them. Trying to separate language and politics ends in anti-politics. Does it make sense for a technocratic society with increasing population density to have easy access to firearms?

Gun nuts fantasize the American frontier as most Americans fantasize American exceptionalism and benign hegemony

-Lesley Stahl on U.S. sanctions against Iraq: We have heard that a half million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it? Secretary of State Madeleine Albright: I think this is a very hard choice, but the price--we think the price is worth it.
60 Minutes (5/12/96)-


 

Mr. Wiskas, I'm not in a mood to re-litigate the McDonald case. If you've got doubts on this score, I suggest you read the court record.

Yes, it was practically impossible to legally own a gun in either D.C. or Chicago, unless you were politically connected. Establishing that was part of why they won.
 

Brett

I don't want to re-litigate McDonald or Heller at all, and I've read over the records since we've started this discussion. While it seemed impossible to own a handgun unless the powers that be granted you that right, it appears from the record that you could own a rifle or shotgun as long as it was unassembled or trigger locked. My point is that that may not be ideal, but it is not a total prohibition.
 

And telling people they can only own Bibles would not be a total prohibition on book ownership, either, but more than a few people might consider it an extremist position.

As I said, the claim to only favor "reasonable" regulations might have carried a bit more weight, if the people making it had ever seen a real world regulation they thought was unreasonable.
 

Brett

I don't think your Bible analogy is apt, as the Bible is one book out of very many but rifles and shotguns are entire categories of firearms.
 

I'm with Sandy. I thought you were talking about drugs.
 

I'm still grieving as my family prepares for what normally is a happy (secular) time of year, an extension of Thanksgiving. But I'm haunted by this portion of an earlier comment::

"-Lesley Stahl on U.S. sanctions against Iraq: We have heard that a half million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it? Secretary of State Madeleine Albright: I think this is a very hard choice, but the price--we think the price is worth it."
60 Minutes (5/12/96)-
# posted by D. Ghirlandaio : 11:53 AM

Children are not fungible but they are the future of this world of which our nation is a part, a world that is becoming more and more interdependent. We grieve when our nation]s children are slain as in the recent event. We must also grieve for other innocent children throughout the world who are slain. The price is too high.

 

I agree with Mark Field above. In fact, the ostensible slyness of the question is very culturally dependent -- the comparison would seem silly in, say Japan, where abortion is legal, guns aren't, and neither issue is contentious.
 

"Matters of fact?"
When most defenders of choice regarding abortion support controls on guns?

"the ostensible slyness of the question is very culturally dependent "

No sht. But this is our culture. I'd like to think the author of the post was not so naive, but there's no telling.

"Those who are anti-abortion (logically) call for its complete prohibition because they regard the act as the equivalent of murder."

Most abortion opponents would allow it in case of rape or incest. "Abortion is murder" for them therefore is code for something else. Abortion is irresponsible, morally lazy, individualistic etc. But those arguments don't cut much these days, so it's left to stronger language.


 

Wow, this is an incredibly specious analogy on so many levels.


 

Gerard is offering the classical conservative proposition that the government may abuse the law to punish those who do not adhere to the moral beliefs of the political majority. Because the exercise of this proposition is always arbitrary, the distinction between laws outlawing abortion, firearms and drugs is subject to argument.

If instead we use the libertarian proposition that the only proper laws are those which prohibit people from causing substantive harm to one another, but not to themselves, then the distinctions become clear - outlawing abortion is proper if you believe that the unborn child is a human being, while the firearm and drug prohibitions are not.
 

If instead we use the libertarian proposition that the only proper laws are those which prohibit people from causing substantive harm to one another, but not to themselves, then the distinctions become clear - outlawing abortion is proper if you believe that the unborn child is a human being, while the firearm and drug prohibitions are not.
# posted by Bart DePalma : 10:04 AM


Because people never use firearms to harm other people?
 

BB,
People don't kill people, guns kill people.
 

bb: Because people never use firearms to harm other people?

Laws outlawing homicide and assault are perfectly proper.


 

Laws outlawing homicide and assault are perfectly proper.


# posted by Bart DePalma : 8:58 AM


Does this mean we have to repeal all drunk driving and speeding laws? You would starve to death.
 

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