"With Liberty and Justice For All"

The arguments for firearms rights don't exist in a vacuum. They touch issues of general political history, theories of crime and punishment, social rights and regulations, and what it means to grow up. Most of what I wrote in this section began in arguments via computer conferencing systems, as disagreements about firearms issues spilled over into arguments about everything from abortion to TV violence.

This is the section of the book where I'm most likely to get cheers and jeers from traditional NRA members. They'll like what I have to say about firearms rights. They're not as likely to like what I have to say about much of anything else. - JNS




Open Messages to Judge Glen Ashman

The following messages, posted in the Gun Control topic in the "Legacy" Legal RoundTable on GEnie, were to Judge Glen Ashman, who at the time of the exchange sat on the City Court in East Point, Georgia, and was running for Superior Court in Clayton County, Georgia. Judge Ashman argued in previous messages that "the second amendment is not absolute" and allows some federal regulation on firearms, and that "unlike the other bill of rights [the second amendment] has never been made applicable to the states, so state bans on guns are constitutional."

Judge Ashman's personal opinion, from a message posted in the Gun Control Topic on March 6, 1992, was as follows: "We need a ban on handguns, and on most other guns not used for hunting. We need a safety course requirement before you can buy a gun. ... We need waiting periods to buy and background checks too."

It was in this context that I opened a discussion with him. For copyright reasons, I include only my messages. - JNS

Mon Mar 16, 1992 at 22:48 EST:

Judge Ashman, since I am not in your court and you can't cite me for contempt, let me explain to you why I will never surrender my arms to any government official, nor will I let any legislature, court, or other official disarm me or tell me the time or manner in which I may carry my arms.

The question on arms is: who is sovereign in a free society - the people or the State? The question of keeping and bearing arms is the question of where power is ultimately to reside: in the hands of the people, or in the hands of government officials, whether they style themselves "representatives" of the people, judges, or police.

The power to disarm is the power to conquer. If some government official has the power to say that a private person does not have the right to be armed, then that government official has sovereign power, and the private person being denied that right is merely a subject.

It is right and proper to discuss tests for whether a government official or employee may or may not be armed. But for a private, sovereign citizen to be so questioned in any way is an affront to the concept that the people are sovereign.

The position that there must be government-administered tests to keep and bear arms is no different than the position that there must be government-administered tests for a citizen to vote, or for a citizen to own property, or for a citizen to speak freely. They are all of a piece. They are all attempting to replace the sovereignty of the people with the sovereignty of the official, who will use this sovereign power to grant privileges and favors.

This is what the American Revolution was fought to overthrow. That we have it back is a grand scandal on this continent, and a tragedy for a country that was once a beacon of liberty to the human race.

Free human beings - free men in the gender-free sense of the word - do not ask permission to bear arms. They bear arms because they are free. Their arms are their empowerment as sovereigns. Their arms are a warning to all criminals, invaders, and kings that they will not have their liberties trifled with.

The Declaration of Independence states the question clearly. It says, "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

At the point where a government declares itself sovereign, and me its subject - which any attempt to disarm me does - then I withdraw my consent to be governed and further hold, as did the Declaration of Independence, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

I do not delegate my fundamental rights to a representative to decide whether or not they shall be taken from me. I do not grant any court the moral right to decide this question. I am a free man and intend to remain so. I may be conquered by villains with more guns on their side. But I will never concede that they have any right to do so.

I do not think judges hear warnings like this very often. Judges tend to get into the habit of thinking that they have power. They issue an order for someone to be carried to jail, and armed officers enforce it.

There are not enough bailiffs, police, marshals, or soldiers to disarm the American people. There are seventy million of us armed, and we will not tolerate it.

If you deprive the people of our rights, we hold the right - and the final power - to take from you the authority to rule on our laws. Our highest law of the land says, in plain language, "the right of the people to keep and bear arms shall not be infringed."

You have a choice. You can enforce that law - and to hell with the precedents of cowards, liars, and poltroons who sat on benches before you and corrupted its meaning - or you can begin to contemplate the manner that the American people will use to bring down that court into rubble, and replace it with a judge who will enforce it.

Perhaps you think there are not many who will agree with me passionately enough to back this position with our lives, our fortunes, and our sacred honor.

King George the Third didn't think so, either.
Respectfully submitted,
J. Neil Schulman,
Sovereign Citizen

Tue Mar 17, 1992 at 23:57 EST:

Judge Ashman, I didn't come by my opinion lightly. First of all, the warning against "anarchy" doesn't work with me, since I've probably called myself an anarchist as much as any other label for the last two decades. Not that I believe in nihilism or terrorism; I merely believe that social institutions - whether they're joint stock companies or condo associations or even "governments" - can't make third party contracts without the consent of the third parties. A legislature or court can't deprive me of my rights, because I don't grant them jurisdiction to do so. I grant jurisdiction for dispute settlement, and to reduce criminal invasions against life, liberty, and property. But there is a natural and logical limit to that jurisdiction: when it ceases to work to those ends, I call a halt.

I've called a halt. I won't have my right to bear arms infringed. My consent is publicly withdrawn from any institution that attempts to do so, and I will use any effective and moral means at my disposal to see that my rights - and those of my fellow countrymen - are not abridged.

You are right. The Supreme Court, if they wish to avoid a civil war in this country, had better come out with a decision that enforces the Second Amendment. If they do, lower courts and politicians better obey. If the Supreme Court abdicates its duty to enforce the Constitution, then it's time to impeach the Justices by any moral means necessary, and replace them with Justices who take the Framers seriously.

I had the late Roy Copperud, the definitive expert on American Usage and Style, analyze the text of the Second Amendment. I can email you (or post here) a copy of the article I wrote based on his analysis of the text. What Copperud said is that the words "A well-regulated militia being necessary to a free state" are grammatically incapable of acting as a restriction on the only clause in that sentence, which is, "the right of the people to keep and bear arms shall not be infringed." The reference to a well-regulated militia (aside from being redundant; it's another way of saying "the people as a whole, armed and ready") is a present participial phrase. It is not a subordinate clause; it is not a restrictive clause; it is not a clause at all. It is an explanation of why this right is being mentioned in the Constitution, rather than being taken for granted, with all the rights preserved but not enumerated in the Ninth Amendment.

Let's talk about some of the "limits" on freedom you mention.

Speed limits: limited by contract, when you agree to drive on state highways. A libertarian can argue that the state should not be building roads or operating them - and an anarchist can argue that they should be liberated from state control - but nonetheless there is an explicit agreement when one applies for a license to abide by the state's rules of the road.

Perhaps the battle over roads was more important than our ancestors thought. The principle of state control over our right of passage seems to have eroded all sorts of other rights as well.

Libel laws do not limit freedom of speech. They limit freedom of lying. They say in essence that the passage of provably toxic information - false and damaging - is action, rather than symbolism. There is a clear epistemological difference.

DUI laws - same argument as speed limits. On a private road, with everyone signing waivers of risk and liability, I would have no possible objection to drunk driving. A sign at the on ramp should probably say something like, "ABANDON HOPE ALL YE WHO ENTER."

Zoning laws are another example of private rights being violated by the state. There are contractual alternatives which are acceptable - land-use covenants, condo agreements, etc. But the idea that a government should be able to condemn or restrict the use of someone else's property is another major violation of private sovereignty.

As for criminal laws - well, if by that you mean the invasion of another's right to life, liberty, or property - then that is the one alienation of rights I observe as valid. A person who invades another has entered into what one theorist1 has called an "anti-contract": a contract for past performance. By their actions, they have already agreed to the cost of their invasive acts.

That current legal statutes don't rest on such logic don't bother me at all. I am not a lawyer. I'm a sovereign citizen fighting for my rights.

What bothers me is that you hold authority granted you by sovereign citizens, and your personal opinions, if enacted by you on the bench, would violate that sovereignty. By doing so, you violate your orders. You are told to uphold their rights. You would infringe them.

I appreciate your being in this discussion to listen to the opinions of people, such as me, who are not lawyers, and do not care for precedents. As a matter of fact, I don't even care much for law itself. I only care about rights and justice, equity and fairness. To the extent that the written statutes bring about that result, they should be observed. When they cease to do so, the law is destructive, and must be disobeyed as strictly as obedience to a just law.

You may very well end up sitting on a gun case some day, in which the fate of some citizen is in your hands. On that day, you will have a choice. You will either break with the precedent of bad law and enforce the sovereign rights of the citizen "in the dock," or you will bend to tradition and rob him of his rights.

I hope you find the truth of this before that day is again before you.

Neil

Wed Mar 18, 1992 at 23:10 EST:

Judge Ashman, if quoting the Declaration of Independence on the right to overthrow despotic government is treason in the United States, that is proof the despots are in charge and the revolution is overdue. One would have to be pretty cowardly - in a country which is heir to Patrick Henry, Sam Adams, and Thomas Jefferson, just to name a few - to worry about that for a split second.

As a matter of fact, the Constitution defines treason in Article 3, Section. 3. as: "Treason against the United States shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two witnesses to the same overt Act, or on Confession in open Court."

There isn't a word in the Constitution about sedition, or overthrowing the government.

In fact, I prefer ballots to bullets. In the last 24 hours we have seen a referendum in South Africa abolish apartheid. Last year we saw the world's most evil empire collapse with virtually no bloodshed. Good for the despots! They may finally have learned something from history if they realize that guns won't save their lives if the people say "enough."

But I don't count on despots or ruling classes to give up their power without a fight. Much blood was shed in South Africa before this referendum was possible. The people in the former Soviet Union had flexed their muscles enough to let the coup-plotters know they were finished.

I believe in keeping my powder dry.

Let me go back to your other points, in order. You say there is a problem with "misuse." Well, that is precisely the non sequitur that statutes in this country perpetrate:

Premise: a thing can be misused;

Conclusion: that thing, and its proper use, must therefore be regulated.

This logical mistake is the justification for endless tyranny because there is nothing that can not be misused.

Water can quench thirst; it can also be used to drown a person.

A baseball bat can hit a home run; it can also fracture a skull.

A kitchen knife can carve Thanksgiving turkey; it can also carve Grandma.

A chain saw can make a clearing to build a house in the woods. It's also Jamie Lee Curtis's old nightmare.

We are a tool-using race. Everything we touch becomes our tool. Our legends tell us that God created a perfect world. A few years later, Cain found the tool to murder his brother Abel.

Firearms are a tool, an "anti-personnel" weapon. If the person using it is wicked, the tool will be used for evil. If the person using it is good, the tool will be used to stop evil.

For most of the Cold War, Great Britain and France had nuclear capability. Why is it we were worried about nuclear attack by the Soviet Union and not France or Britain? The answer is simple and telling: we did not think the people of France or Britain were evil, so we did not fear their weapons.2

Good people should be armed against evil people. Bad people, when they use their weapons to commit evil, should be stopped.

If guns are the number one cause of death for young black males, then good young black males need to be heavily armed, and the faster the better. Evidently their murderers are armed already.

As far as background checks, I have no objection to background checking criminals who have already forfeited their sovereignty. In my novel The Rainbow Cadenza I postulated implanting radio transponders into criminals to mark them. (Mind you, the society that did this in my novel used this technology badly because innocent people, by our standards, were declared criminal; there is no tool that can't be misused.) Nevertheless, if you feel the need to hunt down criminals to disarm them, feel free to suggest this. It's already being used on livestock.

As far as discussing the "law" on gun control, it is far too narrow to discuss statutes and legal precedents without a prior discussion of philosophy of law and natural rights. That is what is missing from gun-control debates today. Everyone wants to discuss social utility - whether law (a) will produce effect (b). Well, it's possible to discuss the social utility of slavery, also. It's wonderful for the masters, isn't it? The masters have dirt-cheap labor - and kinky sex on the side. One can easily define the slaves as animals, rather than humans; that avoids the problem of discussing rights, doesn't it?

Funny how this argument strikes us as hollow now.

Rights must be discussed first. Only then can you discuss social usefulness.

In my previous message I stood on my right as a sovereign citizen to either consent, or not consent, to being governed, according to whether the government protected my rights or violated them. I don't care what the legislators decide on the subject; I don't give a damn what the courts have decided. These are my rights we are discussing. Respect them or else. I stand in the tradition of Jefferson, Adams, and Henry: and our public servants had better get the hell out of the armory - the master just got home to take charge.

As far as your oath to support the Constitution as amended, that is an oath to the Constitution, not to precedents. If those precedents defy the Second Amendment, it is your duty to the Constitution, and to the people of the United States, to rule that way. If you are overruled, you will have done your duty, and it will be the judge who has overruled you who will have to deal with the people's just wrath for that act of sedition.

Footnotes:

1. Samuel Edward Konkin III.

2. Thanks to KABC Talk Radio host Dennis Prager for this analogy.




A Rather One-Sided Debate on Gun Rights

The following is a selection of messages I wrote between July 21, 1992 and February 7, 1993, posted in the Gun Control topic in the Public Forum * Non-Profit Connection Bulletin Board on GEnie. Again, for copyright reasons, I'm posting only my own writings and have removed the last names and log-on addresses of the other participants in the discussion. I've also edited the messages for clarity and to remove irrelevancies and redundancies. - JNS

Sun Jan 17, 1993 at 21:44 EST:

Gun police, Bob?

Back when the federal constitution was being debated, James Madison wrote Federalist Paper #46 (under the pen name Publius), discussing the respective powers of the federal government, the states governments, and the people. Madison's premise was that the federal government could safely be given militaristic powers without fear of becoming a tyranny, because the natural loyalties of the people would be to their states rather than the federal government; and any attempts at tyranny by the federal government would be quickly dealt with by the state legislatures, working in concert if necessary.

Madison didn't foresee the outcome of the Civil War, though, less than a century later, and the subsequent winnowing away of the sovereignty of the states as compared to the federal government.

Here's an excerpt from what Madison had to say in Federalist 46:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

Much as I respect Madison, his vision of the future was fatally flawed. The usurpations of the federal government over both the states and the people is virtually unlimited. A state can't set speed limits on its own highways without being blackmailed by the federal government about the age at which it legalizes drinking alcoholic beverages. The federal government, with powers of taxation and central banking which would have been unthinkably evil to Madison, has built up a federal debt which threatens to bankrupt our economy - and still the people can't muster the power to rein in its servants.

And with the institutional barriers which the Founding Fathers imagined would protect us from tyranny eaten away, one by one, over the last two centuries - protections against seizure of property, protections against indictments without grand-jury approval, protections of the rights of the people to be secure in their persons and homes from unreasonable searches - you would take from us our final line of defense against total victory of the forces of statism. For a chimerical vision of public safety - in the name of "gun control" that has never proven substantially effective in reducing crime - you would take the people's sovereignty over their rebellious, spendthrift, and maniacal public servants - and make our possession and carrying of arms subject to our servants' approval.

Neil

Mon Jan 18, 1993 at 04:25 EST:

Rich, it's not so much that an aroused and armed public would make an attack on the army or the government, but rather that an armed public is capable of withstanding an aggressive attack by a government/army which is out of control. As we saw in the collapse of the Soviet Union, revolutions happen when governmentsattempt to seize power and don't have the force necessary to do it. (If they successfully have the force to do it, they get to write the history books and it's called putting down a rebellion.)

Madison and the other Founding Fathers saw an armed public, organized into state militias or not, as a repository of the people's liberty - as the practical implementation of the people's sovereignty. Certainly the object is not to foment armed rebellion against Congress, but to attempt to tame Congress by electoral and other institutional means.

But the logic of power has its own moments of truth. If things go the way trends say they might, we could have an economy bankrupted by the federal debt in our lifetimes. My first novel, Alongside Night (Crown 1979; Avon 1987) explored this scenario. When money calculated in dollars - bills marked legal tender - aren't accepted anymore, when the phrase "the full faith and credit of the United States government" is no longer accepted by foreign banks or foreign governments, we face a crisis in which the ability of the American people to rely on themselves for their own security against criminals, men-on-horseback, and foreign interlopers becomes real and pressing. You can't count on the U.S. army when the government doesn't have anything to pay the army with any more. This has happened in history time and time again.

There's another issue. The logic by which the federal government was given the power to pass laws directly affecting individuals through courts and punishments - as opposed to merely imposing rules on sovereign states as was done under the Articles of Confederation - equally applies in the modern day to the United Nations. Sooner or later the logic of empire is going to demand that individual countries submit their citizens to the direct courts and punishments of the United Nations.

Speaking for myself, I observe the rest of the world being considerably less free - less concerned with individual liberty - than the United States, even in its current degraded condition. And I think the relinquishing of our national independence is to be resisted. We are the only nation on earth with a Second Amendment - the only nation that in its founding accords the rights of sovereignty to its people, rather than to an aristocracy, a technocracy, or a theocracy.

As we go on this issue, so goes the world.

It's rather important that we stand fast.

Neil

Tue Jan 19, 1993 at 04:53 EST:

Bob, whether the enforcement of laws denying sovereign individuals their rights to the means of force is local, state, or federal, it still works to the benefit of those whose ultimate goal is the destruction of citizen sovereignty and the replacement of it with a more powerful ruling class.

You have supported my point unwittingly, when you concede that the federal government can blackmail lesser governmental entities. It doesn't matter that the gun police would be state rather than federal. The policies would be set by political groups with a nationwide or international agenda.

You try to shrug off this point with a witticism about, "Today the Brady Bill, tomorrow the world." You bet, son. That ain't a joke; it's exactly right. Today the agenda is to use whatever political means can undercut the right to keep and bear arms, and diminish it to a mere privilege under police control. Once that is accomplished, all institutional protections of the rights of the people are merely subjects for political debate - and rights are no longer the basis for making those determinations: power is.

The destruction of rights is incremental. Those who would enslave us are patient. It's done one step at a time. The targets are always the weakest links: those who abuse the rights that others need for lawful and moral purposes.

The strategy is to focus on short-term practical concerns, and try to wipe from people's minds the thought that there are any larger or longer term issues.

No. I do not accept your context. Street violence is not the only important issue. As a matter of fact, street violence is a consequence of the general breakdown of social customs and mores into anomie - and anomie is precisely the situation in which decent people most need the physical force necessary to defend themselves from those would attack their lives, liberties, and property.

The issue here is not merely guns. Guns are merely the ultimate means by which these issues are discussed. The issue is power. The issue is whether ultimate political power is to be reserved to politicians and police, or to the people.

And that, my friend, is the basis that we will defeat this attempt to destroy the people's liberty, which comes among us dressed as crime control.

Neil

Thu Jan 21, 1993 at 23:57 EST:

Kate:

I was not arguing that guns can't kill. You have shifted the argument to different grounds. I was arguing against your point that this is the only purpose to which they can be put. Guns, as inanimate objects, have no purposes of their own. To impute a purpose to them implies that they were engineered to perform a certain function by purposeful beings.

This is not an academic or trivial point. The rhetoric of "guns have only one purpose: to kill" is a misstatement with political purpose: to deny that guns have moral or otherwise lawful functions, particularly by others than police or armies.

So, when I point out that guns can sometimes just threaten instead of kill, I am both describing a function to which they can be put and a lawful and moral purpose for which a person might wish to obtain them.

In fact, your army instructors are incorrect. The purpose of modern military small arms is not to kill the enemy. If that were the purpose, NATO would not have mandated full-metal jacket rounds, which are less lethal than expanding rounds. The purpose of modern military small arms is to wound the enemy, in order to require the enemy to require units to divert resources from attack or defense into transporting casualties to the rear instead.

The problem with the gun control movement is that it keeps on missing the target. Its proper aim should be to disarm criminals. Instead, it attempts to disarm everyone. And because of this, it sours the idea of even reasonable measures aimed at disarming criminals, because of long historical experience with demagogues who use incremental regulatory measures in order to eliminate entire fields of human action.

First the government says that it just wants to tax firearms. Then it must have enforcement agents to collect that tax, right? Next thing you know, interstate commerce is being used as an excuse for federal BATF agents to raid the homes of honest gun owners, wantonly destroying their property, looking for (and often not finding) certain classes of firearms which don't have the right excise tax stamps.

Then gun control advocates wonder why the NRA goes ballistic whenever they propose handing more regulatory power over firearms into the hands of the government.

Neil

Fri Jan 22, 1993 at 08:40 EST:

Kate:

Look, there are two different arguments we could have at this point. I can try to convince you that liberty is an important enough value that, even granting that guns make society more violent or dangerous, it's still worth it. Or I can try to convince you that firearms widely dispersed in the hands of the citizenry actually make society safer and less violent, because criminals outgunned have fewer potential occasions to attack. I believe both, and have facts and history to bring up in defense of my position.

If you value safety above freedom, we don't have a lot in common to talk about anyway. All I could say to you is to quote Ben Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

My response is Patrick Henry's: "I know not what course others may take, but as for me, give me liberty or give me death."

This may not be an adequate response to a Canadian. But then again, judging from history, Americans have always been testier about our individual freedoms than Canadians.

As for the practical response, your per capita murder rate is comparable to our lower density states, many of which have little gun control. Canada just doesn't have areas as densely populated as New York City or New Jersey, for example which have both heavy gun control and high murder rates. If you've been taught that there is a causal relationship between high murder rates and high density of guns in the United States, then you need to understand that statistical correlations don't tell you cause and effect. It's just as likely that there are more guns where the murder rate is high because frightened people go out and buy more guns for defense against crime. This happened in Los Angeles, where I live, right after our riots last spring.

One thing you might be interested in: Canadians suffer a higher rate of home burglary with the family present than Americans do. American burglars know they might get shot, and tend to limit their burglaries to houses they case out to make sure they're empty. It's also why our armed robbers love robbing 7-11 convenience stores. The Southland Corporation, which owns 7-11, has made it a policy to forbid their clerks to be armed. Of course some robbers kill the unarmed clerks anyway, because 7-11 also requires the clerks to make frequent cash deposits into a safe they can't open.

You ask if your VCR is worth killing over. No. But the forcible invasion of your home is. A person who would do that is capable of anything, including rape, kidnaping, mutilation, torture, or murder. Do you want to take that chance? Feel free. I won't. That's the reason to keep firearms. If the burglars haven't cut the phone lines to begin with (as many do), then the time it takes the police to get to you after you call will be the longest of your life. That's assuming that they even answer the emergency call right away. It could be busy. They could put you on hold because they are overloaded. There could be a general emergency - such as an earthquake, hurricane, or rioting - in which the entire emergency phone system is overloaded and goes down - as happened here in Los Angeles during the riots.1

Then again, you might live in a poor black neighborhood where the police take their sweet time responding, if they come at all. Sorry. I don't believe in either Santa Claus or police protection. But then again, you're closer to the North Pole, and maybe you know better.

As for firearms training, I say the more the better. I myself have taken police reserve training in addition to NRA courses.

Bob:

Guns are not the most lethal weapon currently available to criminals. Not by a long shot. The most lethal weapon currently available to criminals is gasoline. Dirty syringes are also right up there.

As for the Constitution being a living document, and times requiring change, I agree. The protections against government power which the Founding Fathers expected would protect us from tyranny haven't worked. We are on the brink of economic and social collapse because the government has invaded all spheres of society, destroying productive enterprise, breeding crime, and destroying social cohesion. The solution is to expand liberty and to restrict political power.

And on the off-chance that the politicians might not like this to happen, I think keeping the people armed and ready is of overriding importance. If I have to choose between your opinion and that of Jefferson or Madison, guess which one I'll go with?

Neil

Sat Jan 23, 1993 at 03:51 EST:

Kate,

1) Your point about my ignorance of Canada is well-taken. My knowledge of Canada's bill of rights was the 1960 version, which could be changed by parliament alone; I was unaware that Canada had adopted a charter of rights and freedoms into its constitution in 1982. I stand corrected.

Nevertheless, I still maintain that the U.S. is freer than Canada. A constitutional guarantee of rights on paper is not self-enforcing - as your constitutional crisis is demonstrating. Scissors cut paper - and so do guns, as I have proved every time I shoot paper targets at the range.

2) You say that power isn't in the hands of the people in the U.S. either, because we still have an aristocracy, despite our constitutional rights. Which misses my point. What power we haven't been deprived of by our "aristocracy" is because they haven't been able to disarm us. Of course we have a privileged class, and of course many of them try to disempower others to their benefit. Which it is harder for them to do if the others are armed and unwilling to be so abused. That is my point.

3) Finally, you ask if our constitution is so strong and our rights so enshrined, why we need arms to defend them. Precisely because words on paper don't enforce themselves: when words fail, it takes arms to do that.

4) U.S. cities of 4 million where it's safe to walk the streets: there aren't any. All U.S. cities of that size have both severe restrictions on gun ownership and high crime rates.

Sat Jan 23, 1993 at 05:17 EST:

The following chart integrates a comparison of per capita homicide and robbery rates of various American cities, divided between those with restrictive guns laws/enforcement and lenient gun laws/enforcement.

Cities: Restrictive Gun Laws/Enforcement

Rates per 100,000 (1990)
                              Homicide           Robbery

Newark, NJ                       41                2188
population: 275,221
(1990 census)

Detroit, MI                      57                1266
population: 1,027,974 
(metropolitan area: 4,382,297) 
(1990 census)

New York City, NY                31                1370
population: 7,322,564
(1990 census)

Baltimore, MD                    41                1288
population: 736,014
(metropolitan area: 2,382,172) 
(1990 census)

Chicago, IL                      31                1335
population: 2,783,726 
(1990 census)

Washington, D.C.                 78                1274
population: 606,900
(metropolitan area, 3,923,574)
(1990 census

Boston, MA                       25                1049
population: 574,283
(1990 census)

Cities: Lenient Gun Laws/Enforcement

Rates per 100,000 (1990)

                              Homicide         Robbery

Austin, TX                       10                 314
population: 465,622 
(metropolitan area: 781,572)
(1990 census)

El Paso, TX                       7                 268
population: 515,342 
(1990 census)

Wichita, KS                       6                 355
population: 304,011 
(metropolitan area: 485,270)
(1990 census)

Tucson, AZ                        7                 223
population: 405,390 
(metropolitan area: 666,880)
(1990 census) 

Corpus Christi, TX               11                 173
population: 257,453 
(1990 census

Omaha, NE                         3                 180
population: 335,795
(metropolitan area: 618,262) 
(1990 census)

Colorado Springs, CO              3                  92
population: 281,140 
(metropolitan area: 397,014)
(1990 census)

Sat Jan 23, 1993 at 17:34 EST:

Bob:

Ah, yes. Transfer the liability for the criminal misuse of firearms to the manufacturer. This means that the manufacturer of a device is liable when that device, which has no defects, is intentionally misused by a consumer.

Would you like to see this as a precedent for transferring liabilities on other devices to the manufacturer, when they are misused? Let's say, make swimming pool manufacturers responsible when people drown in their pools. Let's make Ma Bell responsible when people make harassing phone calls. Let's make Ford responsible when a bank robber's getaway car runs over a pedestrian.

What's that, Bob? You say that you don't work for the Trial Lawyers Association?

Bob, let's talk for a moment about the public opinion polls which show that Americans want more gun controls. What is it that public opinion polls measure? Public opinions! And what are public opinions based on? What the public knows, or think they know. Where do they get these "facts"? Largely, from evaluating what they see on television, hear on radio, and occasionally what they read in newspapers and magazines. And what do we see on TV, hear on radio, and read in mass-market magazines? We see the same illogical arguments about blaming inanimate objects for what criminals and morons do with them, as we have been seeing in this discussion topic.

When writers like me break through into the media, pointing out that guns are frequently used by the good guys to stop the bad guys, we see public opinion changing.

When there are riots in Los Angeles and people see armed homeowners setting up barricades to keep out carloads of armed rioters, people change their minds, and in a matter of a couple of weeks, the Los Angeles Times pollsters register a 9% increase in the number of non-gun-owners who decide to become gun owners.

Bob, you ask me for a case where a country with an armed citizenry has had to fight off tyranny. That's like asking me to find a country which regularly uses pesticides where pesticides have fought off locusts. If you have the pesticides, you don't have locusts. If you have an armed citizenry, tyranny is inhibited at the git go. In World War II, which citizenry was better armed: Switzerland or France? And which one was invaded and occupied by Nazi Germany?

Okay, Bob. Let's say I agree with you. Criminals go into areas with little gun control and buy guns, which they then use in areas with more restrictive gun control. Does that tell us anything? You bet. It tells us that criminals like to take their guns into areas where they know they have easier pickings: a disarmed public to prey upon. They damn well don't want to stick around the areas where they bought their guns - too many of the good guys might have guns and shoot back. Have you just made my case for me, or what?

Bob, your history of the 2nd amendment is flawed. The entire issue of keeping and bearing arms was written into the Constitution precisely because the British governor of Boston, General Gage, had required the colonists to keep their arms at an armory - then the colonists couldn't get them back when they needed them to fight off the British. The attempts by Gage to send troops to collect the arms of British subjects at Lexington and Concord wasn't forgotten, either.

The right to keep and bear arms means: keeping arms where you can get them when you need them, and carrying them where you need them, without having to get permission from others.

Neil

Sun Jan 24, 1993 at 11:37 EST:

Bob:

I disagree with the justice of transferring liability to manufacturers whose products are not defective, regardless of whether the product is crop-dusting equipment, firearms, or chemicals. Life can't be made risk-free; to the best of my knowledge, we all die sooner or later anyway, and just because bad things happen doesn't mean that someone else is at fault and lawyers need to write bad laws to find a scapegoat for everything that goes wrong in life.

Seriously, are you so intent on crippling firearms manufacture that you are really want to saddle this country with such an extreme precedent of liability?

Look, Bob. First you complain that gun control doesn't work because it isn't everywhere. Then you try to claim the success of gun control in some places. Well, which is it? Either gun control works at reducing the supply of guns or it doesn't. Either gun control can keep guns out of the hands of criminals, or the rest of us need to be armed to fight back. Make up your mind.

Finally, on rights. Are you maintaining that we have them or that we don't? If you're saying that rights are merely political agreements, then I assume you see nothing wrong with slavery, so long as it was constitutional? If you think otherwise, I'd like to know on what basis, if it isn't that rights precede politics.

As for chimps and whales - when they ask me to recognize their rights, I'll take it seriously.

Neil

Mon Jan 25, 1993 at 01:40 EST:

Bob,

As I said in a previous message, guns and gun control aren't ultimately the issue we're debating. As we can see from following the threads, the issues are all sorts of other things: conceptions of rights versus governmental restrictions; differences about risks and liabilities; basic differences in political philosophy.

There is room for disagreement about individual risk assessment versus the dangers to others.

When reasonable people can disagree, who decides? Do we sue each other in court and let judges decide? Do we let legislators come up with a decision that is binding on both those who agree and those who don't? Or do we let individuals decide for themselves?

The same problem that we are discussing here arises in the social conflict between those who believe abortion is murder and those who believe it's no one's business but a woman's to decide whether or not to have one.

The bottom line is: my position on private ownership and carrying of firearms is akin to the pro-choicers who believe the moral choice should be made by the individual, and you - like the anti-abortion groups - believe that laws should be passed which impose their moral judgments on everyone.

You see, even if the anti-abortion group has a morally superior argument - and remember, this is a hypothetical "even if" - so long as there is a large sector of society who believes differently, it is politically impractical to impose their view on the whole of society.

The same is true of firearms. Even if you were right - and remember, this is a hypothetical "even if" - so long as millions of Americans believe they have the right to own and carry firearms, it is politically impractical to impose your view on the whole of society.

You can't escape the fact that there are two hundred million privately owned firearms in this country, in around sixty million households. Even if regulations are passed restricting ownership of "assault weapons," the failures of such laws in California and New Jersey to cause more than a small minority of owners to register their guns shows the distrust and indifference gun owners have for such laws.

And given the failures in prohibiting popularly desired commodities - everything from liquor to pornography - there is no historical basis for anyone to take seriously the idea that gun restrictions of the sort you propose would have any significant effect at reducing the firearms available to the irresponsible, the psychologically unstable, and the criminal.

What your proposals and those of Handgun Control, Inc., do accomplish however - what the constant attacks on gun owners and the 3 million member NRA by establishment media and institutions accomplishes - is to convince us that we are being devalued and trivialized by people who think they have the standing and the power to decide what's best for us, even though we think they're dead wrong. And under such circumstances, we will fight tooth and nail against even the most moderate and otherwise reasonable restrictions on firearms availability, because we believe them to be merely baby steps towards the destruction of our long-established political right to keep and bear arms.

I don't expect you to give up.

But understand why we won't, either.

Neil

Mon Jan 25, 1993 at 23:43 EST:

Bob,

When Florida changed its law six years ago, CBS's 60 Minutes declared that allowing anyone who wanted to carry a gun to do so would turn Florida into the "Gunshine State." They've never gone back to look at what actually happened, nor have they retracted their prediction of shootouts at every traffic accident.

Out of 101,009 people who have been issued a Florida license to carry a concealed firearm - and this includes Miami, a city with a metropolitan area population of 3,192,582 (1990 census) - only 15 have afterwards committed a crime with a firearm - and only one of those is a homicide.

That means that 100,994 out of 101,009 have not misused their firearm since being licensed. It also means that the rate of criminal misuse is 1 out of 6734.

The homicide rate in Florida is down 20% since 1987. This is the only reliable measure of crime, since there's a body to count. All other crime rates - burglary, robbery, rape - are estimates based on crime reports and surveys; and most criminologists consider the homicide rate the only one that tells us anything useful about crime trends.

Meanwhile, the national homicide rate is up 15% during that same period.

The success of Florida clearly demonstrates that it is possible to implement a program for honest, decent people to carry arms, without arming criminals in any statistically significant number. And, even with such a small a number as 80,891 additional citizens on the street carrying guns, the deterrent effect on crime is noticeable.

Neil

Tue Jan 26, 1993 at 02:59 EST:

Bob,

Here's how I see the cases of abortion and gun-control as equivalent.

1) Those who oppose legal abortion think legal abortion fosters the criminal killing of human beings, and therefore they wish to outlaw it for everyone, regardless of whether they agree. Those who oppose legal ownership and carrying of guns think legal guns foster the criminal killing of human beings, and therefore they wish to outlaw it for everyone, regardless of whether they agree.

2) Those who favor legal abortion think the question of whether legal abortion fosters the criminal killing of human beings is a question that must be answered by individuals for themselves, rather than the government forcibly imposing the views of those who think legal abortion fosters the criminal killing of human beings on those who disagree. Those who favor legal ownership and carrying of guns think the question of whether legal ownership and carrying of guns fosters the criminal killing of human beings is a question that must be answered by individuals for themselves, rather than the government forcibly imposing the views of those who think legal ownership and carrying of guns fosters the criminal killing of human beings on those who disagree.

3) In both the case of abortion rights and gun rights, there are millions of Americans who think it should be legal. Those who wish to restrict either abortions or guns wish to impose their opinions by force of government arms on those who disagree with them. Further, to the extent they succeed in restricting or prohibiting an activity which millions of people favor, they foment disrespect for the law, encourage civil disobedience and political strife, and destroy the social harmony necessary for a free society.

This said, let me answer your question, for myself only. My response is not binding on anyone else in the firearms rights movement. I believe that the quality of life is more important than mere elimination of risk. We all die sooner or later anyway, so we stand a 0% chance of avoiding the risks to our lives anyway. To me, individual liberty and justice are more important than mere reduction of risk of dying from gunfire.

Now, undoubtedly, you agree. You advocate gun control because you believe it would improve the quality of life. The difference is that you are taking a utilitarian view - trying to arrive at a political solution which benefits "the greatest good for the greatest number" - where I believe that such decisions are value judgments that must be made by individuals for themselves, and that we do not have a free society if uniform value judgments are imposed on all individuals.

That's why I say it comes down to pro-choice or anti-choice.

Neil

Thu Jan 28, 1993 at 02:56 EST:

Bob,

Bob, you misunderstood what I said. I have no doubt that you, for one, do not believe that the basic moral question is one of liberty. Nor do we disagree that most people in this society don't divide the issues that way, either, which is the reason that there isn't a pro-liberty party and an anti-liberty party.

Most people are not persuaded that there are any fundamental principles defining good and bad, just or unjust, workable or non-workable. I don't know whether you believe in consistency to a set of principles or what principles you might have - but you and I both agree that liberty is not their basis.

Now, about the shooting in Tampa, Florida today. You have been arguing that we need more gun control laws, that such laws will have an impact on reducing crimes of violence. Here we have Florida, which makes carrying a gun without a license a felony. It's already against the law. The police can arrest you for it. What more do you want? Police are not supermen, and just because a law is passed doesn't mean it can always be enforced effectively. I don't know what magic you expect your elite gun police and elite gun courts can bring to reducing the criminal use of guns. They'll be just people, too. On the other hand, elite gun police and elite gun courts would likely be used to deny guns to people who would use guns for self-defense.

Obviously, there aren't enough people carrying guns to the office in Tampa, Florida, so that when a madman with a gun comes in and starts shooting up the place, there's somebody ready to shoot back.

However, Florida law allows people to carry guns for self- protection from crazy people with guns - and I expect the number of Tampa workers carrying guns to work for self-defense will be increasing dramatically in the next few months.

Neil

Sat Jan 30, 1993 at 05:42 EST:

Bob,

The Ten Commandments (the ten "blessings" in original titling) are not principles - they are orders. One can possibly derive principles from them - such as that murder of a fellow countryman is evil - but the principles themselves are not contained in the text itself.

Not only are principles not just arbitrary orders, they must be self-consistent. For example, suppose I said, "Even to illustrate a point, it is never allowable to use the word 'mudgumple.'" My principle of never using 'mudgumple' to illustrate a point has been violated by the very sentence which uses it to illustrate that point. It is self-contradictory - self-refuting - and thus does not stand up to the test of logic.

Now, when I said, "Most people are not persuaded that there are any fundamental principles defining good and bad, just or unjust, workable or non-workable," I suppose, to be perfectly truthful, I'd have to exclude people who believe in the Ten Commandments. Their fundamental principle is, "The Ten Commandments defines right and wrong." If the Ten Commandments say you shouldn't do something, then their principle is, "If the Ten Commandments forbids that, then it must be wrong to do it." They require no further argument, no demonstration of the truth of that premise.

But there are several prior premises that go deeper even than that. One of them is, "I don't know what right and wrong is unless someone else tells me." Another is, "I know that the Bible is written (or authorized) by God, and God knows right from wrong, therefore I can believe what the Bible says." Still another is, "I know that the translation of the Bible I am reading is accurate to what God wrote (or authorized)." Still another is, "I know that what God told the Israelite nation to do four millennia ago applies to me today as well."

You see how a simple thing like taking the Ten Commandments as final, unquestioned, literal truth bites its own tail? At any point you can come back with, "Well, how do you know that?" "How do you know that the Bible was written by God, rather than men?" "How do you know that the translation is accurate - are you a scholar in ancient Aramaic and Greek who has read the originals, or do you rely on the opinions of scholars? If the latter, why do you trust them?" And finally, "How do you know that the rules God made for the Israelite nation weren't specific to those people at that time? How do you know that God doesn't intend us to live by different standards or rules?"

Even a person who wants to forego the necessity of thought about discovering principles of right and wrong finds that it can't be done without giving the matter some thought. No matter how much you want to abdicate the responsibility for figuring out right and wrong for yourself, sooner or later you have to, if for no other necessity than discovering for yourself which authority in interpreting the text you are going to believe.

Here, then, is a solid principle we can begin with: "It is impossible to know rules about right from wrong without learning the premises on which those rules are based."

Now, let's go to some of your statements about principles.

What I understand you to be saying is: Most people who hold to moral principles believe in being faithful to them until they are convinced otherwise. But because moral principles are learned, such faithfulness to principle is spotty.

If this is what you're saying, then I would tend to agree with you. But it misses my point. My point is that most people have never thought it through, don't care to think it through, and because they have no basic philosophy of their own - no worldview - to base their actions on, they tend to go with the flow and do what everybody else around them is doing. In other words, for most people, "right" is what most other people around them say is right - even if they don't do it themselves - or "what Billy Graham, my teacher, Carl Sagan, and Dan Rather tell me is right." If you want to know what's right, turn on TV and see what people are saying. Or listen to a call-in show. Once you know the answers other people give, you can pick one or two and be done with the question, without the necessity of difficult thinking.

What I was attempting to do in my question to you was to elicit your own worldview - the basic premises or principles you are using to judge principles of government and social order. More fundamental to that, since many of my messages have expressed my philosophical worldview - the basic premises I'm arguing from - I was trying to find out if you have a philosophically consistent worldview as well. Once I knew that, I could discover where we part, and focus on the different premises themselves. That would enable me to attempt criticizing any contradictions I found in your statements of principles, and possibly, at least between us, discover a closure on the many issues we've been discussing, so we don't have to go back over the same tiring arguments again and again.

In the absence of a worldview to argue against, let me just go after one principle I can divine from your message. You said that while you don't believe in "absolute liberty," you do believe in some "qualified freedoms."

Let's define our terms. By absolute liberty, I mean that each individual in a society holds the right to take action regarding the furtherance of his/her goals and value-judgments, limited only by the borders beyond which such actions deprive others of the exact same right. Historically, by the way, this is known as "the law of equal liberty."

Now, this is already a rather big "qualification" on freedom. It forbids action that deprives others of their freedom of action, or that deprives anyone of anything which is rightfully theirs without their consent. We can spend a good deal of time arguing how such rights can be derived - and what are their natural limits - but that goes far beyond the scope of the immediate question, even though what gun-control versus gun rights ultimately is addressing is the question of where those borders are.

For the sake of this discussion, I just want to emphasize that I don't believe that just because a group of people get together in large numbers and become powerful, it gives them greater rights over individuals or groups who are not as powerful. I believe that principles of right and wrong are independent of, and prior to, questions of political decision-making and the implementations of those decisions by force.

Okay, let's get to some specifics. I asked you, "Here we have Florida, which makes carrying a gun without a license a felony. It's already against the law. The police can arrest you for it. What more do you want?"

To which you replied, "I want it to work! And if it doesn't work, if criminals still get guns and shoot wives or former supervisors, then the law should be changed."

Bob, you are making an assumption that I have to challenge as utopian. You are assuming that no matter what a problem is, legislation can be drafted that will fix it. Further, you are assuming that even properly drafted legislation will be able to be enforced to an extent able to make an effective impact on that problem.

Or, to boil this down to an aphorism: "If wishes were horses, beggars would ride."

Bob, will you not even concede the possibility that it may not be possible to keep guns out of the hands of criminals to any significant extent? We are living in a country which has spent billions and billions of dollars trying to eliminate poverty with government programs. Poverty is still with us. The government spends money on research to cure diseases: AIDS is not yet cured, nor is cancer or heart disease. Laws are passed to require seat belts in cars, then - when many people choose not to use them - laws are passed requiring people to wear seat belts. Yet, tens of thousands of people die every year in car accidents because they aren't wearing seat belts.

We could, of course, pass a law that every car have a video camera in it, transmitting to roadside police receivers, to ensure that every one wears their seat belt. And we can have elite seat-belt police and elite seat-belt courts, who do nothing but enforce this law.

But at what cost? Some lives would be saved, certainly, but privacy would be lost in cars, the quality of life reduced thereby, and the death rate would be unchanged: one person, one death - sooner or later.

Your suggestion that requiring a reference from a neighbor, before you're allowed to buy a gun, would have changed the outcome in Tampa, Florida, is such a suggestion. Suppose you ride a motorcycle and have long hair, and your next- door neighbor is a Jehovah's Witness. Do you think they're going to give you a good reference? Or suppose your dog uses their tree for a toilet. Or suppose you're white, and your wife is black, and they're bigots. The possibilities of abuse are endless.

Yet, you are so dubious that an armed citizen in that Tampa cafeteria would have been able to stop the gun attack that this tyranny-by-the-next-door-neighbor seems preferable to you.

Obviously I believe otherwise. I've written two Op-Ed pieces for the LA Times about individuals in restaurants who were able to put up an effective defense because they were armed - and I also believe Kleck's estimates about the high number of gun defenses. But my point is, I think society has less to fear from the occasional armed psycho than it does from giving next-door neighbors the ability to veto each other's rights. That violates the principle of liberty - the law of equal liberty - as I defined it earlier in this message. And I believe such violations corrupt and destroy the social bonds which make peaceful and productive coexistence possible.

Neil

Thu Feb 04, 1993 at 07:29 EST:

Bob,

You say it's immoral to kill other human beings unless such killing saves innocent lives.

If your definition of "saving innocent lives" concedes that other criminal activities such as robbery, rape, burglary, and mayhem threaten innocent lives - and that it is therefore rightful to use lethal force against someone doing these - then I agree with this. Otherwise, I'd need a more detailed list of justifications and excuses for the use of lethal force.

You also say it's proper for society to regulate human conduct so as to effectuate saving innocent lives.

If by "regulate" you mean pass laws which impose sanctions on people who kill other human beings other than to save innocent lives as discussed above, then I agree. If you mean restricting the freedom of people who have not killed other people, or otherwise threaten them with theft, injury, or other invasion, then I don't agree that it's proper. That would contradict your first premise by failing to make a clear distinction between "innocent" and "not innocent" and treats the innocent the same as the guilty; and without such a distinction between innocent and guilty, your first premise which relies on such a distinction logically self-destructs on its own internal contradiction.

Neil

Sun Feb 07, 1993 at 19:30 EST:

Bob,

There is a moral argument to be made here as well as a tactical argument. If you are arguing that a store owner who risks his life attempting to kill an armed robber is morally inferior to the store owner who allows the robber to take the cash box (which "isn't worth dying for"), then you must be an Ayn Rand Objectivist. Only the Objectivist's belief that sacrificing yourself for others is evil could find fault with a hero who risks his life to rid his neighbors of a clear-and-present danger to their lives.

By being armed, a robber is threatening to take a life if you don't give him what he wants. His claim of being armed, and the demand for any sort of compliance under threat of force, justifies use of lethal force to prevail against his threat. There is no situation, short of the armed robber's throwing down his weapons, and offering unquestionable and unconditional surrender - where it is not acceptable to use lethal force against him.

What is also hard for me to understand is why you would consider for a split second that a kidnaper who has just come in, after you have untied and armed yourself, deserves to live any longer than it takes for you to pull the trigger.

As a moral proposition, those who use lethal force to deprive others of their lives, liberty, and property have given up their right to life. Whether or not you ask for their surrender is entirely a tactical question, not a moral one. Does the kidnaper have information - perhaps about other hostages - which you need? Will confederates execute other hostages if they hear gunshots?

Bob, this is why it's important that you not base your moral arguments on the mistranslation "Thou shalt not kill." That mistranslation of the original Hebrew "You shall not murder" leads to moral imbecility.

***

Bob, in our constitutional system, government has not a single right which is not delegated to it by sovereign individuals. Moreover, the calculus that government may regulate a thing because that thing is used more for immoral purposes than moral purposes legitimizes totalitarian tyranny.

Are there more Danielle Steele soft-core porn books sold than C.S. Lewis's Christian apologetics? The government may then regulate what books may be sold, and which ones you may buy.

Do high-fat foods promote heart disease more than they provide nutrition? The government may then limit you to buying no more than one package of hot dogs per month.2

Can any justification be found for allowing alcoholic beverages to be legally sold, when alcohol demonstrably has more negative impact on society - and promotes more immoral behavior - than any other single factor in society?

Obviously not. And it was tried. The law met with massive non-compliance, and gave birth to organized crime in America for the first time - organized crime which found other commodities to switch to when Prohibition was repealed, so as to remain in business even today.

The principle and legal precedent that is applied today to the dangers of firearms will be some fanatic's legal argument tomorrow for fatty foods and books.

That is why an attack on the Second Amendment is an attack on the rest of the Bill of Rights. You can't isolate this single issue from the rest of society. People argue by analogy in order to arrive at principles which may be applied to other problems.

Bob, there's no such thing as a principle or conclusion that applies specifically to firearms that does not equally apply to other objects, defined by use, operation, and purpose.

If your conclusions are generally indefensible, then your conclusions about guns are specifically indefensible, and demonstrating this to you - if you are intellectually honest - must lead to you abandon any argument that does not stand up to the criticisms of fact, logic, and principle.

You can either be consistent to a set of correctly formulated, and reality-checked, principles, or you can slide into contradiction, absurdity, and hypocrisy.

Those are the only alternatives reality allows us.

You say it will be a lot easier to limit gun smuggling than drug smuggling. I find this belief naive. Just what is going to make these forces more incorruptible than other police forces, which are corrupted all the time? Entire narcotics squads in New York City have been discovered to be on the take from drug dealers, and police property rooms used as a storefront. Do you think that putting on a badge and swearing an oath relieves a person of being human? Your elite gun police will have power, and not only do we all know Lord Acton's dictum that power tends to corrupt, but if - in fact - the elite gun police are the only thing standing in the way of a criminal getting a gun, the elite gun police will be offered bribes seductive enough to corrupt a monk.

As for your contention that gun smuggling will be easier to limit than drug smuggling, this is an unproved assumption which on the face of it is absurd. Don Kates's article "Points of Comparison Between Banning the Handgun and Prohibition of Liquor" provides an effective rebuttal. Further, I don't believe you could find any law enforcement officer who would take your contention seriously.

Bob, are you saying that if someone is attacking my sister and I shoot the attacker to incapacitate him and stop the attack, without firing a warning shot first, then I am acting immorally?

If you believe this, then you don't understand the first thing about how firearms are supposed to be used defensively. I do not know of a single instructor of combat handgunning - in law enforcement or outside it - who teaches shooting to warn, or to wound, as opposed to shooting at the center of body mass to incapacitate.

I would not draw a firearm unless I believed it was a life-or-death case. But in my police reserve training I learned that an attacker armed only with fists - much less a broken bottle, a chair, or a knife - can represent a lethal threat. A below-the-belt punch can kill. A blow to the head can kill. Further, lethal force is justified if a reasonable person can conclude that a successful attack could cause bodily mayhem, such as injury to a vital organ, or permanent damage such as being blinded.

Neil

Footnotes:

1. It doesn't even take a riot. On March 15, 1994, a fire in a Pacific Bell switching station knocked out 911 service for most of Los Angeles.

2. I thought I was arguing to absurdity here. But in the February 19, 1994 Los Angeles Times, a letter from Sidney Gold, MD, of Granada Hills, California, one-ups President Clinton's proposed hike in the cigarette tax to pay for health-care reform. Dr. Gold seriously suggests a one-cent per gram tax on "the fat, cholesterol, and sodium contained in the foods we eat."




The following article appeared in the Sunday Orange County Register, Commentary section, May 16, 1993.




Was Waco Warranted?

Whoever said that difficult cases make for bad law must have been thinking of the gun-control proposals that are already being discussed in the wake of Waco.

The February 25, 1993 warrant that the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained was for David Koresh's arrest and the search of the Mount Carmel facility. Once one gets past padding and irrelevancies, the warrant alleges reasonable suspicion that Koresh was buying up parts to convert two semi-auto AR-15 rifles into full-auto AR-15's functionally similar to the full-auto M-16 assault rifles used by the military. Buying such parts is of itself legal, but conversion of semi-auto to full-auto without first acquiring an occupational license from ATF and paying a $200 federal excise tax has been prohibited since the National Firearms Act of 1934.

This 1934 law is convoluted and ambiguous, made even more so by the 1968 Gun Control Act and the 1986 McClure-Volkmer Act. Congress passed these laws under its authority to levy excise taxes and regulate interstate commerce, but the federal statutes make mere possession of legal parts which could be used to convert a semi-auto rifle to full-auto illegal unless you first get a manufacturing license from the ATF. In other words, you have to pay the tax before you have possession of that which is being taxed - a unique interpretation of how excise taxes are supposed to work.

Since 1986, when Congress passed the McClure-Volkmer Act, no licenses to manufacture full-auto weapons with parts manufactured after 1986 will be issued at all. This is not a legally permissible form of federal gun control, since the Constitution grants Congress no authority to regulate the manufacture or possession of firearms, for their own use, by private citizens. The 1968 Gun Control Act and the 1986 McClure-Volkmer Act - which regulate interstate commerce in firearms - are constitutionally inapplicable to the manufacture, possession, or peaceful use of firearms on one's own property - which is all the original warrant alleges Koresh did. The tenth amendment to the U.S. Constitution states, "The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Texas does not prohibit, nor does it require licenses, for manufacturing or owning fully automatic firearms.

The 1939 Supreme Court decision US v. Miller - the latest applicable precedent - affirmed the Second-amendment-right of a private citizen to own military small arms, requiring that a weapon, to be protected by the Second Amendment, must be "part of the ordinary military equipment or that its use could contribute to the common defense." In other words, the federal government would only have authority to restrict arms that don't have military application.

Now we get to Koresh. The affidavit attached to the ATF's February 25th search warrant includes the following, written by ATF Special Agent Davy Aguilera:

On February 22, 1993 ATF Special Agent Robert Rodriguez told me that on February 21, 1993, while acting in an undercover capacity, he was contacted by David Koresh and was invited to the Mount Carmel Compound. Special Agent Rodriguez accepted the invitation and met with David Koresh inside the compound. ... David Koresh told Special Agent Rodriguez that he believed in the right to bear arms but that the U.S. Government was going to take away that right. David Koresh asked Special Agent Rodriguez if he knew that if he (Rodriguez) purchased a drop-in-sear for an AR-15 rifle it would not be illegal, but if he (Rodriguez) had an AR-15 rifle with the sear that it would be against the law. David Koresh stated that the sear could be purchased legally. David Koresh stated that the Bible gave him the right to bear arms.

David Koresh then advised Special Agent Rodriguez that he had something he wanted Special Agent Rodriguez to see. At that point he showed Special Agent Rodriguez a video tape of ATF which was made by the Gun Owners Association (G.O.A.)1 This film portrayed ATF as an agency who violated the rights of Gun Owners by threats and lies.

Clearly, David Koresh believed that the federal gun-control laws were unconstitutional, and that ATF was acting illegally. If the serving of the ATF warrant had gone off peacefully -as was previously the case even when Koresh was arrested for attempted murder several years earlier (he was exonerated) - then the issues raised under the federal firearms laws probably would have been litigated. Now, even though the federal firearms laws need even more pressingly to be litigated, the emotions surrounding anything having to do with the Davidians' fiery death are bound to make for bad precedents.

As it stands now, we have what is supposed to be a federal tax law being used for constitutionally questionable purposes - and the warrant which was issued, based on David Koresh having failed to pay excise taxes, resulted in an army of federal agents being used to serve a warrant in a maximally violent manner on the unproven allegations that David Koresh had an immoral lifestyle and was somehow, therefore, unworthy of possessing dangerous weapons. Not only had allegations regarding child abuse at the Davidian residence been previously investigated by Texas authorities and found to be groundless - again, with local authorities gaining access to the Davidian residence without problem - these charges are not within federal jurisdiction in the first place.

All of this finally comes down to prudential considerations. What do we as a society have to fear more - a David Koresh, or an Adolf Hitler? The 1938 Nazi Weapons Law - functionally similar to our current federal gun-control laws - disarmed Germany's Jewish citizens and made it possible for the democratically-elected German government to murder millions of innocent people. Even if we were to concede that David Koresh had the lifestyle of Idi Amin, Koresh did not represent anywhere near as lethal a threat as a government gone feral. Clearly, if we make our gun-control laws aggressive enough to be effective in disarming extremists, we also disarm the bulk of the peaceful citizenry which could deter political murders a hundred thousand times as large as anything a minor cult could accomplish.

The same arguments which demand that a balanced ecology requires not eliminating species of toads can be used for a political ecology. Political ecology demands that the citizenry remained armed to counterbalance weapons held by potentially predatory governments. You have to decide whom you fear more: a citizenry which outguns police or police which outgun the citizenry. The former may tend towards anomie - as advocates of gun-restrictions claim - but the latter has historically proved genocidal time and time again.

If anything has come clearly out of this tragedy, it's that the ideological conflict between those who believe public security can be achieved by an armed government and a disarmed populace, and those like me who believe that an armed citizenry is the bulwark of a free society, needs to be discussed dispassionately and publicly. The hyperemotionalism resulting from using Waco as an example of what needs to be done, one way or the other, is bound to make for bad law.

The Bureau of Alcohol, Tobacco, and Firearms found plenty of excuses in existing gun-control laws to serve an arrest warrant on David Koresh. That they failed to do so in a reasonable manner is surely no reason to burden sane and civil gun-owners with laws that will make them even more vulnerable to the predations of the demagogues who roam this planet - whether they enchant eighty followers or eighty million.

After writing this article, shortly after the final holocaust at the Branch Davidians' Mount Carmel Center in Waco on April 19, 1993, I became one of a number of journalists who looked into misconduct by the ATF and FBI agents in charge of the raid, stand-off, and final assault. I've concluded several things.

The first is that when it comes to opposing what they perceive as "gun nuts" and "cultists," the major media in this country are willing to allow government officials unchallenged credibility in their claims about the Branch Davidians criminality, regardless of evidence to the contrary. It's a sad day when one gets a more balanced account of a major federal law-enforcement operation from Soldier of Fortune magazine than any major-city newspaper, national magazine, or television network.

It's my current personal belief that the initial ATF raid on Waco was conducted as a public-relations stunt before Congressional budget hearings, where ATF officials were otherwise going to have to explain a sexual-harrassment scandal at the agency which CBS's 60 Minutes had uncovered a few weeks earlier.

Experts in law-enforcement have told me the affidavit used to obtain the warrant failed to provide any reasonable cause to believe the Branch Davidians were engaging in illegal activities.

Further, the warrant did not authorize a no-knock raid, nor the violence which the ATF agents used in serving what was only supposed to be a search warrant against a group of people who had never resisted authorities before. And, there is much evidence that the ATF agents fired first, and that it was only after the Branch Davidians called 911 twice to get the agents to stop shooting that they unpacked firearms which were supposed to be sold at a gun show, to defend themselves and their children.

During the 51 days when the FBI cut off the Branch Davidians from all communication with the outside world, the only source the American people had about the events in Waco were the daily news briefings by FBI agent Bob Ricks. The press were kept three miles away and did nothing to protest getting only the official, censored story. During that period, and on the final day, the FBI employed methods of psychological and chemical warfare, on a house containing children, that would have been called war crimes if presented in testimony at Nuremberg.

And, the best evidence I've been able to obtain as of this writing is that the FBI, not the Branch Davidians, started the final fire by knocking against the house with their combat engineering vehicles, which resulted in the deaths of 81 men, women, and children, who seem to have done nothing more dangerous than buy and sell legal guns for profit, engage in unorthodox religious and sexual practices, and believe that the Book of Revelation applied to them.

In this belief, David Koresh was certainly correct.

The final irony of Waco is the date of the final assault, April 19, 1993: the anniversary both of the rout of British soldiers on a gun-confiscation detail by intransigent gun owners at the Old North Bridge, Concord Massachusetts, on April 19, 1775; and the fiftieth anniversary of the uprising against the Nazis by the Jews of the Warsaw Ghetto, on April 19, 1943.

As of this writing, the only persons tried for the deaths at Waco were those who were living peacefully in their bible center before the government troops showed up. All the eleven Branch Davidians charged with murder and conspiracy to murder the ATF agents who invaded their home were acquitted of those charges; the only convictions were for voluntary manslaughter and firearms violations.

So tell me. What are you supposed to do when it looks as if the federal government can cover up war crimes on its own citizens with a Soviet-style show trial of the victims, and nobody with a nationally respected voice seems to care? - JNS

Footnote:

1. Like much else in the affidavit, this was incorrect. The organization is Gun Owners of America.




The following article appeared in the Commentary section of the Sunday, June 21, 1993 Orange County Register, under the title, "Tube Shocks."




Does Hugging on TV Cause Real Violence?

What does watching TV make you do?

Since we live in a violent society, we're constantly hearing arguments that seeing TV violence, particularly as kids, desensitizes us so we accept real violence more offhandedly - maybe it even triggers real violence.

But TV also shows lots of hugging. The standard plot for most family sitcoms is (1) Problem causes family members to get mad at one another; (2) Family members abuse each other in cute ways; (3) All is forgiven by end of show and everybody hugs.

So television gives us a conflicting set of images: violence and hugging.

Every popular medium has undergone the charge that it corrupts youth. The novel was attacked, then movies, radio, comics, rock and roll, and now TV, music videos, and rap. The theory behind the attacks is always the same: if Johnny commits a crime, he's not responsible and his parents are not responsible: Something Else is responsible.

The problem in this society isn't the easy availability of drugs, or guns, or pornography, or television, although all are scapegoated. All are mere inanimate things: they do only what we have them do.

All supposedly scientific studies on the subject of TV violence "causing" real violence are based on a theory of cause-and-effect that is contrary to humans having the capability of making responsible, moral choices.

But we are volitional beings by nature: we choose what we do and what we make ourselves. You take two brothers from an identical lousy environment - missing father, overworked mother, no money, rotten inner city neighborhood. One brother joins a gang and has committed his first murder within a couple of years. The other brother hides out from the gangs at the public library and learns to read out of boredom. Because of reading, he manages to stay in school and takes a fast-food job while attending night college.

Even if you postulate a deterministic model of human behavior, comparing two specific phenomena in isolation tells us nothing useful. How can you isolate one specific set of television images from the effects of the other available images? Further, how do you go inside the skulls of the people doing acts of violence and find out the actual causes, when even asking won't give you a sure answer?

Serial killer Ted Bundy claimed in a final death-row interview that reading pornography made him do it. But how did that screwed up psyche know what was cause and what was effect? It's just as likely that the same impulses that attracted him to pornography attracted him to violent acts, and there was a third (prior) cause.

Studies linking TV violence with real violence try to reduce human behavior to stimulus and effect. It may work with rat psychology, but it doesn't work with human psychology. We aren't robots which are programmed. We learn, choose what we focus upon, change our minds, ignore what we don't like or believe, focus on what we like and believe. If someone is prone to violence, then they will probably seek out and obtain violent images - and if it isn't broadcast on TV, it will be sought and obtained otherwise.

A mere statistical link between two phenomena - TV and violence - supposes a causal link which is unproven. It's just as likely that TV violence, by providing a catharsis to those who would otherwise commit real violence, prevents real violence.

Furthermore, TV violence is almost always part of a morality play. When criminals initiate violence on TV, cops use violence to make sure they don't get away with it. If TV drives home any lesson, it's that using violence for criminal purposes will bring you to a violent end.

It's even more probable - given that TV is demand-driven - that the increase in real violence is the cause of the increase of violence on TV. The more violence there is in real life, the more reason there is to portray it on news and other "non-fiction" programs, and the more demand there is from violence-interested individuals to see it portrayed.

Showing that real violence causes TV violence is simple. But statistical correlations between any two particular phenomena, in the absence of a valid theory of human nature, prove so little that one could just as easily come up with a plausible-sounding theory of how hugging on TV sitcoms causes real violence.

Try this on for size.

Johnny is a latch-key kid whose father beat him every night before the age of five, then abandoned him and Johnny's mother. Johnny is left at home alone for hour upon hour, and watches TV. Johnny is fascinated by the TV sitcoms which show functional families. He watches them all: Family Ties, The Cosby Show, Roseanne, Who's the Boss?. Over and over again, young Johnny sees these families hugging each other.

He watches these scenes of family hugging for years, and they have a cumulative effect. When Johnny is eleven-years-old, he's in a sporting goods store at a mall, when he sees a son hug his father, who has just bought the son a new baseball bat.

Johnny goes over to the baseball bats, picks out a nice heavy one, then goes over to the son and smashes the bat into his head, fracturing his skull and instantly killing him.

Now, what conclusions do we want to draw from this incident?

1) Hugging on TV causes senseless violence, and the networks should be subject to greater regulation by the FCC.

2) Baseball bats are dangerous and should require a fifteen-day waiting period and background check before they are sold, and they should never be allowed to be sold to minors.

3) Johnny committed the act of violence because he was jealous that another boy had a father who loved him, which Johnny never had. The trigger for the incident of violence, and the particular tool Johnny used to commit it, are more or less random.

This is the sort of question that might appear on your average test in verbal logic to get a job.

But I wonder how many members of Congress, or sociologists, or journalists - or lobbyists against pornography, rock videos, guns and TV violence - could pass such a test?

If there is any valid criticism of TV, it's the same one that can be brought against drugs: both can be distractions designed to dull the pain of living in a stupid, brutal, and hope-destroying society. TV, not religion, is today's opiate of the masses.

If you want to change TV, change the desire of the viewing public from distraction to intellectual stimulation.

Or you can just change the channel.




Old Enough to Die, Old Enough to Live?

Should it be legal for kids to carry guns to school? Ask almost anyone, the answer will be, "Of course not."

That was easy; let's try a harder one.

Should a 14-year-old who kills a schoolmate for his CD-player be tried as an adult for murder - and if convicted be executed alongside the 25-year-old murderer?

That one, you'll get answers on both sides.

Here's one more: why is it junior-high kids are old enough to be given condoms to prevent pregnancy and AIDS, but they aren't old enough to have monogamous sexual partners in a legally recognized marriage?

All these questions hinge on the definitions of what is a child and what is an adult.

Biology divides mammals between childhood and adulthood at the point when an animal is capable of sexual reproduction. In the primates, this is the onset of menses in the female, and the onset of spermatogenesis in the male.

Through most of human history, the biological line between childhood and adulthood - puberty - was the cultural and legal dividing line also. English common law allowed marriage at twelve for females and at fourteen for males. The Jewish bar mitzvah, in which a 13-year-old Jewish male takes on the responsibility to God for his own sins - provided another clear dividing line. In much of the Third World today, economics requires recognition of a post-pubescent individual as an adult.

In the modern United States, we ignore both biology and tradition by raising the age of legal adulthood. Military eligibility is set at 17 with parental consent. At 18 we require draft registration, allow voting and, in many states, legalize marriage and the ability to make binding contracts in one's own name. The remaining rights of legal adulthood - such as drinking alcohol - start at 21.

The major reasons for extending the age of legal majority past biological maturity are both political and cultural. They include compulsory education in government-approved curricula to the age of 16 in most states, and cultural expectations of higher education for the affluent, which extend economic dependency on one's parents often into one's mid-twenties.

The words "adolescent" and "teenager" have no biological existence; they refer to legal definitions and social expectations.

Recognized adults find it difficult to regard today's post-pubescent, pre-majority individual as a peer. We see today's average teenager as subliterate or barely literate. They have no opinions that aren't designed to fit into their peer group. They have little self-esteem and even less self-control. They're sexually obsessed and don't know how to deal with the emotional turmoil this brings on. They're obsessed with trivia and frivolity; are financially and emotionally dependent on parents who are resented for being needed; are incapable of thinking independently and in abstract, time-conditional terms; and are constantly finding new ways to test their survival. In today's relativistic climate, they are often completely amoral.

Given such a wretched subculture, we're not surprised that teen suicide is high, that teen murderers are increasingly common, and that youth gangs don't even have the decency to rumble; they just do drive-by shootings.

It's also not surprising that thoughtful people express concerns about allowing such a class to have firearms.

Such concerns, however, were also made about the freed slaves in the postbellum South. White Southerners looked upon them as immature, dependent, illiterate, and unsuited for full citizenship. The first gun-control laws in this country were passed to require black freedmen permission from white officials to own or carry arms.

The question of "kids and guns" is at the forefront of the gun-control debate today. Handgun Control, Inc., in its literature, defines a "child" as a person nineteen or under, in order to obtain statistics that show that "children" are dying from gunfire out of proportion to the rest of society. If an 18-year-old "gangsta" Crip shoots a 17-year-old Blood from a moving car, Handgun Control would classify that as a child shooting a child.

When 13-year-old gang members must "make their bones" - commit a murder - in order to be given a share of the proceeds from lucrative drug sales ... when "teenage" pregnancy, AIDS, and junior-high-campus distribution of condoms are political issues ... when courts are lowering the age when a "child" may be held answerable as an adult for a felony to as low as twelve, the discrepancy between our culture's picture of childhood and reality is highlighted.

The question of how to turn the irresponsible child into the responsible adult is likewise dependent on whether even a grown-up in our social order is to be treated as an adult. Our society is increasingly paternalistic in its politics. Our drug laws presume that we cannot make rational decisions about what chemicals we may ingest; government assumes the parental role of both prescribing and proscribing.

Our consumer-protection and business-regulatory laws presume that we as individuals, or even in private groups, are incompetent to prevent ourselves from being swindled; government assumes the parental role of deciding for us who is trustworthy to do business with.

Isn't it obvious that the object of the Nanny State is to breed a culture of permanent juveniles? And isn't it equally obvious that the extension of legal and cultural childhood to years past puberty is the main mechanism for accomplishing the disempowerment and trivialization of the adult population?

Today we have public schools where armed 14-year-old gangsters run protection shakedowns on their fellow students. The shakedowns are enforced with lessons in schoolyard shootings of those who resist. If non-gang student victims decide that their lives are threatened and choose to arm themselves in defense, our modern defender of the children would disarm them and leave them at the mercy of their criminal peers.

It is, perhaps, too much to expect our society to allow its young adults their citizenship rights, when even their parents are denied many of theirs. But is it too much to ask for simple consistency?

Whatever age society says is old enough to be held answerable for a crime must be the same age society calls the age of legal majority. If one is old enough to be tried for murder, one is old enough to defend one's life from murderers. If one is old enough to see one's comrades die on a battlefield, fighting for one's country, one is old enough to buy a drink to drown out the memory. If one is old enough to be handed a condom in the school entranceway, it is old enough to decide to marry.

And while it's no certainty, human history suggests that a biological adult, when granted both adult rights and responsibilities, just might start acting like one.




Instead of Crime and Punishment

Is there any relation between crimes and arrests, or crime and punishment, for that matter? On this second question, we know there is not: according to the Department of Justice, 75%-80% of violent crimes in this country are committed by repeat offenders. Further, a chart in the Los Angeles Times provides good evidence there is little relationship between crimes committed and arrests made, as well.

As a sidebar to an article in the February 27, 1992 Los Angeles Times on the brutality of the Japanese criminal justice system, the Times provided a chart of Violations of Criminal Law per 100K of population in various countries, and another chart comparing the Arrest Rates in those countries.

The Violations chart shows Britain leading the pack with 7,355 criminal law violations per 100K, West Germany with 7,031 (the stats are from 1989, pre-German-unification), France with 5,831, the U.S. with 5,741, Japan with 1,358, and South Korea with 912.

The Arrest Rate chart (also 1989) shows South Korea with 78.8%, West Germany with 47.2%, Japan with 46.2%, France with 38.8%, Britain with 33.6%, and the U.S. with 21.1%

Since every country on this list aside from the U.S. has a virtual prohibition of private ownership of firearms, gun control doesn't lead to a less-criminal society. Obviously that is a blind alley for those seeking a reduction of crime.

Further, a comparison of the West German crime rate with its arrest rates also seems to blow out of the water the argument made by American law & order advocates that a greater certainty of arrest and punishment will necessarily lead to less crime: West Germany has both the second highest crime rate and the second highest arrest rate - possibly the first highest arrest rate, since the South Korean arrest claims, requiring superhuman powers worthy of Sherlock Holmes, strain any sensible person's credulity.

Indicting The Criminal Justice System

Libertarian critics of the policy of crime and punishment have long argued that crime is a necessary product of the very nature of the State, created by it, along with provoking foreign threats to justify a military-industrial complex, as a way of manipulating the public into submission to political control. It is a sweeping charge and one which is likely to be dismissed as crackpot by anyone who can't conceive of an alternative way of thinking aboutthe subject.

But if we were to indict the criminal justice system as a criminal conspiracy might be so indicted, and look for evidence to support the charge, what do we find as the system's "modus operandi"?

First, the State creates a set of laws which mix the concept of crime as an attack upon an individual's life or property with the idea that a crime is anything the State says it is - and thus crimes without victims - or with "the State" as the sole "victim" - are created wholesale. Thus "possession" of a prohibited substance or object, even if such possession has inflicted no actual damage upon another person, in many cases receives as much punishment from the State as a robbery or murder. Additionally, the State sets itself up as the judge of what is an offense against itself, the judge which decides whether someone is guilty of an offense against itself, and the judge which decides what pains and costs to inflict upon a transgressor against itself. Then it sends out armed agents to enforce its decisions. Thus does the State treat itself as a God or Sovereign, whose will is to be feared and obeyed, and everyone else treated as one of its subjects.

Second, the "protection" of the "public" from crime, defined however the State decides, is turned over to the State which taxes the public on the basis that they "need" protection from crime, then hires police to "enforce the law" - but police have no legal obligation to protect the public which is being taxed to pay them from criminals, and suffer no liability from failure to do so.

Third, a "criminal justice" system is set up in which the guilt or innocence of a suspect bears only passing resemblance to the sentences imposed on them after plea bargains which trade ease of conviction for reduced sentences - regardless of whether the person charged is guilty or innocent. No compensation is given to those who are charged but found innocent, and often have their lives ruined by the accusation; compensation of the victim of a crime exists only as an occasional sideshow: the center ring is reserved for imprisonment of the criminal at taxpayer's expense, imposing additional costs upon the victim.

When the system is supposedly "working," those who are found guilty are sent into prisons which ensure that a prisoner will learn the craft of crime as a permanent lifestyle, creating a revolving-door criminal class which provides permanent employment for police, lawyers, prison-guards, and "crime-fighting" governors and legislators - while everything these officials do, regardless of their rhetoric, increases the number of attacks by criminals on the innocent.

When the system is supposedly "not working," this massive prison bureaucracy is so clogged that convicted criminals are sent back out the street in short order, to attack more innocent victims and provide more grist for the criminal-justice mill.

Meanwhile, the same system which creates crime and does little to protect the public from it also demands that the public disarm and rely on the government for protection against criminals.

Is the libertarian indictment fantasy? Or is it a stripping away of the Emperor's New Clothes? It seems hard to avoid the conclusion that if you put all this together, Criminal Justice is the protection shakedown of the public by professional organized criminals in control of an entire society: a system set up to terrorize the public into a condition where it will abide any amount of legalized theft and police control in order to be liberated from constant criminal invasions engineered to justify the system itself.

In a precise metaphor: the disease is being spread by the very doctors the public relies on for the cure.

A New Theory of Crime Management

The alternative to the game of Cops and Robbers by which the criminal justice system encourages criminals to prey upon the public so there is an excuse for the State to catch and imprison them, is to eliminate the State from the system as much as possible.

The public must come to realize that the first line of defense against criminal invasion of their lives and property is themselves. No one cares about protecting you, your loved ones, and your neighbors as much as you do - and no one aside from the potential victim is more likely to be able to provide effective counter-measures against invasion. The defense against criminal invasion requires vigilance, planning, and a willingness to fight back. The best and surest way to reduce crime is to make it unprofitable and dangerous for the criminal. The likelihood that a criminal attack will result in the criminal's being injured or dying during the attack is, both logically and practically, the surest way to achieve a low-crime society. The example of Switzerland, a society organized along the lines of universal defense by all citizens, and where criminal attacks are virtually non-existent, comes to mind immediately.

Further, there are three "criminal justice" systems already at work in our country, and the system of police, criminal indictments, trial, and punishment is the least effective of the three. The other two are the system of civil laws by which individuals who cause damage to another can be sued and compensation collected, and the insurance industry, by which victims can measure the statistical likelihood of victimization against the costs of potential attack, and calculate proper "compensation" for themselves in advance.

The criminal justice system promotes crime and protects criminals rather than fighting it. You don't have to be a radical libertarian to agree with that view. But the American people still need to ask themselves whether the problems are due to an unwillingness of the system to enforce its own criminal code, or whether the theory of crime and punishment on which that code is based does precisely what it is functionally structured to do: victimize the public at all turns.

To implement the new paradigm, the concept of "crime" must be completely severed from its statutory definitions and replaced with a simple test: If a crime has been committed, (a) Who committed it, (b) Who is the victim, and (c) What costs has the criminal invasion imposed upon the victim? If these three questions cannot be answered clearly and firmly, there will have been no crime committed.

The solution of what to do with a criminal who is not killed in process of the crime - a criminal who is captured alive or manages to escape, or must be hunted down - must be made as much as possible contingent on the accountable costs the criminal has imposed upon the victim. Instead of "rehabilitating" a criminal or "punishing" a criminal, the object must be to calculate as much as is humanly possible the costs that a criminal has imposed upon a victim (and the costs of apprehension and conviction as well), and extract as much value as possible from that criminal so that it may be used in compensation to the victim.

The object of "criminal justice" must be restricted to (a) augmenting the public's first-line self-defense with additional lines of response, such as armed response to burglar alarms; (b) detective work to locate, identify, and capture those who have committed criminal invasions or thefts; and (c) a trial system to assure that those charged with an invasion or theft actually committed it, and upon proof beyond a reasonable doubt, to calculate the costs of that invasion and extract that cost from the criminal so that it may be used to compensate the victim. In the case where a criminal invasion has produced irreparable harm such as the death of a victim or victims, the murderer must be regarded as the property of the victim's heirs, to dispose of as they wish, limited only by such mitigations that the precepts of society deem humane.

There can be no doubt that the current criminal justice system has failed. A proof of this failure is that each year the increased crime rate is used as an excuse to ask for more money and wider powers. This sort of reward for failure occurs only in the public sector; in the private sector, where competition is allowed, merchants who operate on this basis are driven out of business by customers going elsewhere and, if the failure is deliberate policy, the merchant indicted for fraud. They are not given more money and told to keep trying.

The question remains: do the American people have the courage and clarity of thought to identify the cause of the failure of the criminal justice system as its very design, and redesign the system so that it makes sense?




The following article appeared, in edited form, in the September, 1992 issue of Liberty.




If Execution Is Just, What Is Justice?

Democracy has no more sensitive gauge than the public opinion poll, and the recent Los Angeles Times poll which shows that four out of five Californians favored the execution of murderer Robert Alton Harris tells us everything we need to know about the political will of the people on this subject.

But while the voice of the people may be the final word regarding our political decisions, few could argue that it disposes of moral questions, or even that such a political will is unchanging. At various times in human history, the voice of the people has favored slavery, the execution of blasphemers, and the Divine Right of Kings. Obviously, both a public moral sense, and the political will which follow from such feelings, are subject to revision.

The largest single reason, given by those who supported the decision to execute Harris, was "Justice/Eye for An Eye." I find it both refreshing and comforting that moral, rather than merely utilitarian, considerations are at the forefront of most people's consciousness.

Still, the question remains to be asked: on what basis does one believe that retribution - "an eye for an eye" - is a valid principle of moral justice?

Is it primarily an emotional, rather than an intellectual, reaction based on empathy to the victims? What, then of the revulsion felt by others to the premeditated killing of a hogtied man?

Is it a sense that something which was codified four millennia ago in the Code of Hammurabi must be right because of its age? What, then, of that code's literal call for retaliations including putting out eyes and cutting off hands?

Is it because the Old Testament tells us that God told Moses that He was ordering us to execute murderers? First, how do we know that early authors didn't do some rewriting, or even that Moses - a politician - wasn't lying when he said the code was written by God? Second, if we are using the Book of Exodus as our legal code, why are we not executing people who curse their parents, or witches, or those who commit bestiality, or those who make sacrifices to any other deity? Third, if we take the New Testament as updated orders, do we obey Jesus when he says he who lives by the sword dies by the sword, or when he tells us that he who is without sin shall cast the first stone? And fourth, what business does a secular state have enforcing a religious code in the first place?

If we answer that we do not decide what is moral or just based on emotions, or tradition, or ancient religious writings, then there remain only two other ways to derive moral premises: direct revelation or human reason. Either our moral premises are personally dictated to us by a Superior Power - and that claim must be backed with incontrovertible proof or it has no merit - or we must use our own powers of reason to figure out morality for ourselves.

Perhaps such a rational inquiry can begin by asking why it is right for the State - a secular organization acting as agent for ordinary individuals - to do that which is universally despised when done by any of those individuals? Does the State act from practical, utilitarian considerations alone - in which case such utility must first be subjected to moral limitations - or can it justify its killings on the basis of moral premises which can be derived without reference to sectarian religious documents?

The State of California finds it fairly straightforward to define justifiable homicide for the private individual. According to the California Department of Justice's booklet California Firearms Laws 1991, "The killing of one person by another may be justifiable when necessary to resist the attempt to commit a forcible and life-threatening crime, provided that a reasonable person in the same situation would believe that: a) the person killed intended to commit a forcible and life-threatening crime; b) there was imminent danger of such crime being accomplished; and, c) the person acted under the belief that such force was necessary to save himself or herself or another from death or a forcible and life-threatening crime. Murder, mayhem, rape, and robbery are examples of forcible and life-threatening crimes."

For the private person - or even the police officer - the instant the threat ends, the grounds for justifiable homicide end.

Strictly speaking, the State is no more than a group of individuals acting for common purpose. It is hard to imagine how it may rightly do more than the sum of the rights of the individuals comprising that group. How, then, does this transformation - whereby homicide is justified long after the threat has ended - occur? Does mere group procedure sanctify killing? If so, how many individuals must be in a group before it earns a license to kill? What moral premise distinguishes the state criminal justice system from the lynch mob?

The obvious answer is that in the absence of a Divine Ruler anointed by God, there is no moral basis for the State to do anything which it is not right for the private individual or group to do. Logic dictates that if it is morally justifiable for the State to kill in just retribution, then it must likewise be morally justifiable for other individuals or groups to do so as well - the Mafia, the Crips, and the Bloods included.

If it seems obviously wrong to you that private individuals have a right to retaliate - if California's definition of justifiable homicide seems to you to be based on a valid moral premise - then you must come up with a moral justification for the State to do that which none of its principals may do.

For me, I answer that it is wrong to punish murderers with death, because it far exceeds the scope of human justice. Human justice is based on the concept of seeking repair rather than further destruction. The religious concept of just retribution - punishment, by another name - is mere tit for tat, not derivable from principles of reparative equity and therefore thoroughly irrelevant to justice or moral behavior as it may be enforced by a legal system. The allure of legal punishment is to adrenaline rather than reason.

Consequently, I see no possible justification for the State, as an agent of the people, to claim a moral right to do that which none of its principals may do. If we have learned anything in four millennia of limiting the role of government, it is that if civil justice is to exist in a secular society, it means limiting equity among individuals to reparation of wrongful harms.

If one believes, as I do, that killing a murderer has no moralbasis, it does not logically follow that one is advocating that murderers should continue to enjoy a pleasant life at the expense of their victims. The principle of reparation derives the object that murderers should labor hard until the end of their days, and all that they produce beyond their mere subsistence should be paid to the heirs of their victims. There is no reasonable moral basis for the practice of murderers spending their days being supported as privileged wards of a welfare state. Such false humanitarianism is gravely offensive to those who remember the murderer's victims, and such offense is possibly the basis for much of the emotion behind calls for state executions.

To those of religious precepts, I must argue that it is quite enough for the institutions of a non-theocratic society to place immovable walls between murderers and the rest of us, and extract what value can be obtained for their victims' benefit. That is all safety and equity calls for. That is all that we - as individuals or as a group - are entitled to. Beyond that imperfect human institutions should not go, and what perfect vengeance is required must be left to God, who in His own good time disposes of all lives as He sees fit anyway.




A Note to Freedom Activists

The following was a message to libertarians and Second Amendment absolutists explaining why I was proposing compromise language for the Brady Bill. - JNS

I am a libertarian anarchist who believes not only in the absolute right to self-defense, and the right to keep and bear arms that derives from that, but also in other absolute human rights derived from "the right to life, liberty, and the pursuit of happiness" (or "life, liberty, and property," if you prefer; property rights logically derive from the rights to life and liberty anyway).

But what most defenders of rights don't understand is that rights are inherent and natural, not political. States do not grant rights. Legislation and court decisions therefore can neither grant rights nor deprive people of them. Only the "end-users," so to speak, of legislation and court rulings - that is, the "law enforcement" end of the state, whether it be individuals labeled police or tax collectors, or DEA, ATF, FBI, HUD, etc. - can violate rights. Their reasons for violating rights are irrelevant at the point when they commit those violations.

What the institutional structure of the State does is grant privileges and immunities. Legislation and court rulings - used as the decision-making basis and "authority" of the "law-enforcers" - either create a rationale for someone to hassle or arrest you for violating a statute or court decision, or it doesn't.

That's why - in seeking to influence the passage of legislation or decision-making of judges, or even the enforcement policies of "law enforcers" - one is making no statement, for or against, rights held by the people. One is merely trying to prevent the State from violating rights by verbal, rather than forcible, means - a wise strategy when one is conquered and outgunned.

That is also why, with no contradiction whatsoever, I participate in the political system by voting, and would serve on a jury if my time permitted it. (Personal circumstances currently don't.) I could conceivably even serve in legislative office, attempting to use my vote to make legislation achieve a closer approximation of privileges and immunities to natural human rights.

A gun permit is an immunity granted by the government, telling its law-enforcers not to arrest you. It would be nice if the personnel involved in interpreting the State's primary document - the Constitution - were honest enough to admit that their rules don't allow them to interfere with the people's right to keep and bear arms, but since these personnel don't have the integrity to do that, there is certainly nothing wrong with seeking as little interference with our rights as is realistically possible at this time and place, since the ideology of those in power isn't going to recognize our rights and they have better-organized methods of enforcing their will than we have of preventing them from doing so.

If you can convince enough of the people to resist infringements on their rights, terrific. We will be free. But I do not see that as a realistic possibility anytime soon.

The State has controlled public education for most of this century, and has used public education to instill an unthinking support for its policies and personnel in the majority of people. Most people are incapable of reading with logical comprehension and analysis at all, and those who can are usually pushed into colleges and universities controlled by the most radically pro-statist ideologues in our society.

The radical statists spread out from the universities and control all the other intellectual professions: news media, law, and medicine. Judges are appointed from their ranks and legislators are elected from their ranks. They gain control of unions, guilds, professional organizations. They control both the Republican and Democratic parties, and gerrymander the electoral process so that the balance of power does not radically shift between the two parties. This tends to homogenize both parties, eliminating other-than-centrist ideologues from positions of power or effectiveness.

Third party movements are marginalized by a refusal of the media to take them seriously or even count their vote totals on election days. Independents are taken seriously only when they are ideologically within their parameters of centrist political philosophy.

We are currently living in occupied territory. The enemy has the primary and secondary schools, the universities, the mass-media (print and broadcast), and the control of virtually all membership organizations from the American Association of Retired Persons (AARP) to the American Medical Association (AMA) and the American Bar Association (ABA - the lawyers).

We have computer bulletin boards, radio talk shows, Rush Limbaugh, Ross Perot (occasionally), a few conservative and libertarian educational institutions and publications, and a few hundred thousand libertarians and patriots who have managed to cut their way through the bullshit to think for themselves.

We also have a bunch of people with a neanderthal sense of strategy and a consequent habit of alienating their potential converts with inappropriate buzzwords and frightening paradigms.1 We need to educate many of our most-dedicated people before we have a chance of educating anyone else.

The bulk of the American people sense something is wrong but don't really know what it is or what to do about it - and in their uncertainty, they turn to the establishment pundits for solutions. The pundits give them "solutions" - good and hard. "Higher taxes, more government control - and disarm all those extremists who are trying to tell you not to listen to us."

I'm not saying we can't win. I'm saying that we have an uphill fight to recapture the minds and hearts of the people. But right now, the people are not on our side, and to pretend that they are is a miscalculation that can lead to our making false moves and being silenced.

The people suffer statism right now because they don't have the will to resist it. They do not have the will to resist it because they think what they have is as good as it's going to get. A few living libertarian science-fiction writers have tried writing novels showing how it could get better and what it would look like if it does. I'm one of them. So is L. Neil Smith, Victor Koman, Brad Linaweaver, F. Paul Wilson, Robert Anton Wilson, Robert Shea,2 and Victor Milan. Our literary forbears include Ayn Rand, Robert Heinlein, and C.S. Lewis, and before them, Mark Twain and Sinclair Lewis.

We've gotten through to a few people. But the literary establishment is doing a pretty good of marginalizing us - denying our most ideological books the sort of push behind them that makes for bestsellers - so we tend to preach to the already-converted.

By all means, press forward with educational efforts to tell people that they have rights. But if some of us choose to attempt to preserve some fractions of our rights and freedoms by having the statists grant us a certain measure of privileges and immunities, so that we can continue to live, work, and function at all, I would hope that you will understand the context of our actions. Please do not assume that we have lost sight of the ultimate issues and accuse us of selling out to the State.

We may differ on strategy, but we both seek freedom.

- May 7, 1993

Footnotes:

1. My self-description as an "anarchist" may even fall into this category. The word has gotten bad press through association of the word with anti-state terrorism and nihilism, doctrines which only a few Russian anarchists such as Bakunin and Kropotkin endorsed, and only a very few anarchists ever acted upon. Modern libertarian anarchism, drawing upon the works of Nineteenth Century American philosophers such as attorney Lysander Spooner, and modern libertarians such as free-market economist Murray Rothbard, often find themselves more emotionally resonant to Bart Simpson than to Emma Goldman.

2. Sadly, no longer living. Shea died in March 1994.

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