In response to Nick’s recent post about a negligent discharge by one of the civilians openly carrying an AR 15-style rifle to protect a military recruitment center, a commenter named Paul posted the following (slightly edited), beginning with a quote from an earlier comment:
“…[L]ast I checked, fundamental rights aren’t subject to capability tests.”
What other “fundamental rights” involve the capacity to kill lots of things quickly? . . .
Right to self-determination
Right to liberty
Right to due process of law
Right to freedom of movement
Right to freedom of thought
Right to freedom of religion
Right to freedom of expression
Right to peacefully assemble
Right to freedom of association
I can understand the concern that any capability test can be abused to make sure the “wrong” people (i.e. the ones the powers-that-be don’t like) are denied access. But when you eliminate any requirement to demonstrate capability for responsible behaviour with equipment that can cause maiming or death, you wind up with armed morons like this guy and thousands more.
That’s why the handling of any other potentially lethal tools/equipment from cars, through heavy equipment, to explosives and many others require training and licensing. Sure you still get thousands killed in car accidents…but think how much higher the death toll would be if any moron could go into a dealership and come out driving a car with no training…. That’s the NRA’s utopia for gun ownership in the USA.
This is an argument that, on its face, makes a certain amount of sense. The problem is that anyone interested in limiting liberty can also make the argument against almost any other ‘right’. Where, therefore, do we draw the line? Just to look at a few of his examples:
- The right to freedom of thought is probably the one right that can cause the most harm in life, depending on what you’re thinking, where you are, and what actions those thoughts are driving. (The right to freedom of religion is just a species of this genus.) Put the wrong thoughts in the wrong person at the wrong moment, and you can have a massacre of innocents. The terorrist from South Carolina, his mind apparently poisoned with an ideology of racist hatred based on falsehoods may very well have been operating rationally, simply taking his false premises to their logical conclusion. We see countless examples of people doing likewise in the name of the Islamic faith, too, most notably the terrorists who attacked on September 11, 2001. Were these people insane? I guess it depends on your definition of ‘insanity’, but I find it much more likely that these sorts of terrorists are operating rationally, but going forward on false premises. (History is replete with examples of entire nations carrying bad ideas to their logical conclusion: North Korea, the Islamic State, the USSR, Nazi Germany, just to name a few.) So: yes, bad ideas do indeed lead to the deaths of thousands — nay, millions — every year.
- The right to freedom of expression slots in behind freedom of thought in its potential danger to society. Depending on what you’re saying, where you are, and what actions/inactions you’re favoring, a simple word of command can result in the deaths of millions.
- The right to vote (self-determination) – thanks to the prevalence of weapons of mass destruction, and depending on the person or referenda you supported with your vote, quite a few people can be killed in under thirty minutes. (The minimum qualifications for someone to be President and thus in charge of America’s nuclear deterrent are shockingly low – 35 years of age and a ‘natural born citizen’. The minimum qualifications to be a voter are even lower.)
- Right to due process of law – if you’re a police officer who (correctly) has a hunch that someone of being a pathological killer who will murder again soon, but doesn’t have probable cause for a warrant, the exercise of this right can result in many people dying.
- Right to liberty – this one pretty much encompasses everything, but taken strictly, it includes pretty much everything else…including buying and owning AR 15 rifles and pieces of stamped metal without prior training or government approval. Which, with the wrong mindset in the wrong person at the wrong place and time can result in injury or death. The same as the other rights mentioned above.
So the idea that any particular right can be singled out is a non-starter; all of them are prone to abuse that could result in injury, death, or other catastrophic events.
To succeed and endure, any free society requires a considerable amount of personal responsibility and character from its citizenry. Any society can be ‘safe’ in terms of crime and accidents simply by using government power to suppress the liberties of its people. We’d have a much better record on highway safety, for instance, if we required people to go through a much more rigorous driver training regimen than they do now. Germany, for instance, requires people to go through a much more extensive and expensive (average cost = $1,800, according to the Wikipedia) course of driver training than we do in the States. It would also mean poorer people would have more difficulty getting a car in the first place (which, in a country as expansive as the USA, means limiting opportunities for work.)
A safer society would be a less-free society, with its people enjoying far fewer opportunities for creativity, romantic relationships, employment, investments, freedom from official harassment, and the general pursuit of our own individual happiness. In many cases we’ve found it good to impose certain regulations on certain kinds of behavior. In some cases, we impose the regulation regardless of other costs it might impose on human freedom — hence, murder, rape, kidnapping, fraud, and the like are all illegal. Our government, however, has imposed a series of other regulations whose purpose appears to be less aimed at promoting safety, and more toward appeasing a favored political group with a political axe to grind. National and local governments in the USA have a long history of doing this, even from its inception — from the outrageousness of the Fugitive Slave Acts and Jim Crow, to petty regulations on African hair braiders.
As a result, in this country (and, I take from Paul’s spelling of “behaviour” that he not native to the USA,) the Bill of Rights were drafted to establish protections for basic rights that were considered pre-existing. One of those was the right to keep and bear arms, because the framers of the Constitution were well aware that the existence of an armed citizenry helped the colonists retain their liberty against the British Crown, and were also aware that this check might be needed in future against an American government that might become similarly oppressive and unresponsive to its people.
In other words: our society has already struck the balance of freedom vs. safety on the issue of guns. Politically, many find this undesirable–either from a sincerity based in ignorance, or simply because (like, for example, plutocrat Michael Bloomberg,) they simply don’t believe that the average person is intelligent or wise enough to manage their own affairs.
Now, you might argue that we ought to re-visit this balance, and revise it. Well, revisiting the ideas in the Constitution is always worth doing (Thomas Jefferson felt that there ought to be a revolution every generation, to make sure everyone was on board with the basic laws of the country,) but in this case, such a step should not be taken lightly. The tendency of governments has been to concentrate power–to borrow from Thucydides, governments tend “to rule wherever they can.” Once we accept legally and politically that it’s all right to eviscerate one right in the name of safety, is it a stretch to believe that eviscerating other rights will follow, the next time someone else gets offended or fearful at the free exercise of another of those rights? Perhaps we can trash one right and remain a mostly free society.
I have my doubts.
This isn’t a question based purely on matters of law, either. I have long held the belief that once a society starts to disarm its people, those people tend to become more willing to follow the demands of whomever appears to be the most threatening. Seeing what recently happened in France — the abject surrender of the humorists at Charlie Hebdo to threats of violence from people acting in the name of Islam — may be instructive here.
None of the above is to deny that everyone who purchases a firearm for personal self-defense ought to take and pass a serious course at the time of purchase. Nor should it deny that anyone who drives a car in the snow belt ought to take and pass a serious course on driving in the snow, anyone who doesn’t tow things or live in a rural area and intends to buy an SUV ought to spend a week driving a minivan to see if that might suit their needs better, or that anyone who intends to vote in an election ought to learn about the candidates, research the issues at stake dispassionately (which also implies that they ought to be literate, too.) I could go on and on with a list of ‘oughts’ that — again, in my opinion — would make the world a better, safer, more prosperous place. It’s easy to come up with ‘oughts’. The problem is when we start turning our ‘oughts’ into ‘musts’ through state action, we start limiting the freedom available to the people.
In sum: we’ve prioritized liberty over safety in this country. That liberty comes with a price, and part of that price is finding a way to deal with the people who are violently insane, irrational, dumb, or ignorant, without sacrificing the liberty we desire in the first place. Until we can find a way to make better citizens out of everyone, it means that we’re going to have to understand — and plan for — a certain amount of violence in our society, perhaps more so than other countries who do not prioritize liberty as we do.
There is no simplistic, bumper sticker solution to that problem. I wish there were.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.