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What will you do with your new rights? June 28, 2015

Posted by federalist in Government Regulation, Natural Rights, Social Politics.
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The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. (Obergefell v. Hodges)

Free at last! The Supreme Court has clearly ruled that government must affirm the legal definition and expression of our identity without discrimination from sea to shining sea!

National Concealed Weapon Carry license reciprocity is at this point a fait accompli. But Constitutionally enumerated rights are so last-century. We are now free to define and express our identity, and if it bears on a legally recognized characteristic then, per the Supreme Court’s reasoning in Obergefell, the government has to certify it and grant it equal protection. Given the social advances in gender identity it should not be long before one can walk into a government office and demand that one’s state ID or passport reflect a different gender. Religious identity is, according to the law, essentially a matter of declaration, and ethnic identity and race must not be far behind. So expand your mind and think hard about who you truly are, because it is only a matter of time before the United States mandates the respect of all legally recognized aspects of identity.

Do you know what I realized? I actually have three distinct identities. (And lest you suggest that “multiple personalities” is a “disorder,” remember that homosexuality was also regarded as a disorder before it was given legal protection and then recognition.)

  1. I am a child at heart. Eight years old, to be exact. My physical body was born on the East coast decades ago, but my latest identity was born eight years ago in Skagway Alaska. I happened to be there on a cruise at the time. And I felt such a profound kinship with the land that I must be Eskimo. I now look forward to receiving my birth certificate from Skagway affirming as much. (Should I choose to apply to a competitive institution I imagine my status as a minor Native American from Alaska will make me quite attractive! And if I am ever charged with a felony: it’s the eight-year-old that did it.)
  2. Fortunately I am my own guardian. My second identity is a very nurturing black woman, born 65 years ago in Alabama. Oh, the hardships my people endured! I am absolutely ecstatic to have lived to see a black President of the United States, and to finally have my identity legally recognized. I’ll stop by the DMV to have my driving license updated accordingly. I guess this makes me eligible not only for senior citizen discounts and privileges, but also for preference in government contracting and employment. (All my business ventures are owned by this identity.)
  3. Then there is my “birth identity.” Just another privileged, white, heterosexual man. All he does is complain about taxes. But even he has reason to celebrate: Not only does he have two new dependents, but he has just decided that his blindness to social injustice must be literal for tax purposes. (It’s OK, my second identity is an excellent driver and has perfect vision.)

This is what government agent accountability looks like April 16, 2015

Posted by federalist in Government, Government Regulation, Natural Rights.
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Today’s example care of the TSA (though examples from other law enforcement agencies abound at the Free Thought Project):

Three months after an employee alerts the TSA to sexual abuse of citizens by two “security” screeners they get around to checking into it and, sure enough, it’s going on as described. And the penalty for the perverts hiding behind government agency and paychecks? They (we are told to believe) lose their jobs. Nothing more. Not even their names have been released.

Agorism: The Libertarian Answer to Marxism December 20, 2009

Posted by federalist in Federalism, Natural Rights, Special Interests.
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There is an interesting subset of libertarian ideology that goes by the name of “agorism” and which juxtaposes itself with Marxism: Where Marxism opposes the Capitalist classes who acquire power and wealth through free commerce, Agorism opposes the Political classes who acquire power and wealth through political action.

Objective crimes are those which infringe the liberty or property of another.  Agorists note that many crimes are committed through the coercive machinery of the State — in fact, the mere existence of a State divides society into plunderers and victims.  Meanwhile, a large number of what the State terms “crimes” are not only legitimate, but even heroic (“revolutionary”) if they undermine the State’s illegitimate activities.

Justifying Preemptive Defense September 28, 2009

Posted by federalist in Natural Rights, Open Questions.
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Two years ago I asked, “How Can a Free Society Defend Itself?”  which raised several questions to which I still haven’t found satisfactory answers.  Among them:

  • How can we defend against asymmetric threats?  (You have to dig into my discussion on the Mises.org forum where I point out that “asymmetric threats” are essentially a product of modern technology: e.g., an individual can build and deploy a truck bomb that can kill hundreds of people, where before the 20th century an individual could not easily wreak havoc disproportionate to his ability to suffer justice.)
  • In an age of asymmetric threats how can we defend against aggressors who are suicidal or otherwise immune to deterrence?

Paul Robinson, professor of law, had an essay in the WSJ pointing out that international law lacks reasonable and moral provisions for states to deal with threats preemptively.  He suggests that the American “Model Penal Code” provides a better standard since it allows for the use of force when “immediately necessary.”

I don’t believe the MPC really addresses this problem, since the key point is defining when and what defense is “immediately necessary.”  For example, if somebody says, “I’m going to kill you — not now, but sometime when your guard is down,” our current laws do not allow you to use force against that person.  The best they offer is a judicial restraining order telling the aggressor to stay away from you.  In the context of states and international law we have the same problem: An aggressor can tailor his threat so that defense is only justified when it is impossible.  Then he can retreat as soon as a forceful defense can be mounted … at which point defense is not “immediately necessary” and hence would be unjustified.

Following some brief correspondence Professor Robinson offered the following clarification:

The point here is that modern [penal] codes switch the focus from the timing of the threat to the timing of the force needed to defend, as it should.  This is a popular provision in state criminal code reforms.  The timing of the threat – its imminence – simply is no longer the relevant test for triggering defensive force.

This has not yet been incorporated into any laws that I am aware of, but it’s at least a first step in principle to addressing these difficult questions.

Chemical Interrogation for Counter-Terrorism? July 18, 2009

Posted by federalist in Natural Rights, Open Questions, Social Politics.
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If the War on Terror left any doubt, episode after contrived episode of TV series 24 has shown that there are circumstances in which we may want to use any means necessary to extract life-saving information from a hostile captive.  Following years of controversy over what interrogation methods should be publicized and allowed to fight terrorism, the federal government is considering the creation of a special interrogation team with new tactics.

Note that we are not talking about securing information for use in judicial proceedings, but rather about extracting accurate information from subjects intent on resisting interrogation that could thwart future — perhaps imminent — homicides.  It is fatuous to discuss whether interrogation methods in such scenarios are “degrading” or “coercive.”  Most pragmatic people probably don’t particularly care whether methods constitute “torture,” so long as they are effective.  Many may even countenance real torture that causes permanent physical damage to a subject withholding information that could avert a mass homicide.  But one problem with torture and coercion on any level is that subjects can be prepared to resist known tactics.  And even when a subject appears to break interrogators can’t always be certain he hasn’t provided them with false information.

So what happened to the art of chemical interrogation: I.e., dosing subjects with drugs that diminish their capacity to consciously evade questions or formulate deceptive answers?  Jed Babbin addressed this early in the War on Terror:

So-called “truth serums” are not foolproof, and do not guarantee success. But chemically assisted interrogation can significantly increase the interrogator’s chance to get the facts without descending into barbarism. There are legitimate differences between the constitutional and legal limits we impose on police interrogating a suspected criminal for prosecution in a civilian court and the means interrogators use to get as much as they can — as quickly as they can — from Mohammed and his ilk. Those limits do not require us to forego chemically assisted interrogation.

Intelligence agencies and the military have been experimenting with so-called “truth drugs” since the Egyptians began making beer about 5,000 years ago. During World War II, Germany and Japan both used chemical interrogation with very mixed results. Today, there are several drugs that are more effective and safe than the ones used then.

The object of a chemically assisted interrogation is to release the cortical functions of the brain. Most of the drugs that would be used — sodium amatol and related drugs — are sedatives that have a general calming effect. So do barbiturates. Another group — valium and its progeny, including Versed — have essentially the same effect, but also induce short-term memory loss, so the subject won’t remember this morning what he told you last night. The beauty of these chemicals is that there is a minimal danger of allergic reaction, and they can be administered in relative safety to all but the most elderly or those with diabetes, or other conditions that can generally be detected by blood tests and an electrocardiogram.

If a suspect is being interrogated while under the influence of one of these drugs, it is possible to further boost the ability of the interrogator to succeed by administering an amphetamine. If administered properly, the sedative calms the suspect and breaks down resistance. The amphetamine can raise his anxiety level, causing him to blurt out what he might otherwise conceal even under sedation.

Even if the a drugged subject doesn’t crack, the short-term amnesia that can be induced with some of these drugs can itself be a useful interrogation tactic: leading him to believe he has given up useful information, and thereby weakening his resolve against further questioning.

The Geneva Conventions prohibit chemical interrogation.  But terrorists are not covered by the Geneva Conventions.  Drugs used for chemical interrogation are neither painful nor, when administered to healthy individuals, particularly dangerous.  Rather than continue to debate the boundaries of torture for official policy, our terrorist interrogation guidelines should include the routine use of helpful drugs.

What Are We Really Giving Up? March 3, 2009

Posted by federalist in Healthcare, Natural Rights.
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Carrot or stick.  Silver or lead.  Government, like organized crime, tends to present you with immediate rewards and penalties that leave any reasonable person with no choice but to comply with their wishes.  It does not often make it clear what the true long-term cost of compliance is in terms of liberty.

I have pointed out how government-provided healthcare naturally and morally justifies government intervention in unhealthy personal behavior.  Now James Bovard at PA-AAPS points out the darker side of government-mandated computerization of medical records.  Granted, there are good arguments for this movement — improved healthcare efficiency, error reduction, cost savings.  The current government has decided that it has an interest in forcing the issue, so it is offering the carrot of funding for the transition and suggested that it will soon apply the stick of financial penalties to healthcare suppliers that resist.  But Dr. Bovard warns: Once government has paid for your private information, it owns it.  And don’t be surprised if it chooses to use it in ways you dislike.

Government is Inevitable January 29, 2009

Posted by federalist in Government, Natural Rights.
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I recently quipped, “A Minarchist is an Anarchist who has been mugged,” summarizing my conclusion after much debate that anarchists do not have a practicable social philosophy.  I just found Randall Holcombe’s excellent essay from The Independent Review (2004), “Government: Unnecessary but Inevitable,” in which he clearly explains why even starting from an anarchist condition any surviving society will inevitably converge on an equilibrium in which every individual is subject to a coercive government.  His arguments and illustrations are worth reading in full.  His conclusions:

One can debate the merits of anarchy in theory, but the real-world libertarian issue is not whether it would more be desirable to establish a limited government or to eliminate government altogether.

People may not need or want government, but inevitably they will find themselves under government’s jurisdiction.

A challenge to advocates of a minimal state is to explain how people can create and sustain preemptively a liberty-preserving government. 

I hew to Constitutional minarchy because though I subscribe to libertarian principles I also realize that a practical society requires some formal institutions of order that can’t depend on the voluntary consent of every individual.  Anarchists can’t resist this “Gotcha!  You say coercion is illegitimate and yet you support coercive institutions.”  Which is true: Even minarchy is illegitimate in principle.  But it is the only practical means of preserving our liberty.  Or, put another way, in the real world individual liberty is maximized under Mises-style minarchy (i.e., government constituted solely for the purpose of protecting individual liberty and private property).

Therefore, our goal as libertarians should not be the final destruction of all governments, but rather vigilance against the ones we have.

A Minarchist is an Anarchist who has been mugged December 23, 2008

Posted by federalist in Government, Natural Rights, Social Politics.
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I’ve spent some time over on the Mises Institute’s forums, which seem to be largely populated with anarchists — indeed, anarchists who haven’t yet had to put forth a detailed philosophy for a practical world built on their principles.  Since I would describe myself as more of a minarchist it has been amusing to be in the position of arguing for government!

[Addendum: Nicolas Maloberti offers a good description of the fundamentally impractical nature of anarchist philosophy in Part I of his essay at the Libertarian Papers.]

QOTD: Rights vs Needs December 22, 2008

Posted by federalist in Healthcare, Natural Rights.
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Paul Hsieh in a letter in today’s WSJ:

Health care is a need, not a right. Rights are freedoms of action, not automatic claims on goods and services that must be produced by another. Attempting to guarantee an alleged “right” to health care must necessarily violate actual individual rights and will destroy the American economy in the process.

Authority to Restrain Government December 1, 2008

Posted by federalist in Federalism, Government, Natural Rights.
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Americans believe that just and proper government derives its authority from The People and exists only to serve Their interests.  Also enshrined in our Constitution and civic philosophy are principles of individual liberty:  Natural law reserves to each human being the right to be secure in his life, freedom, and property.

The Founding Fathers tried to constitute a government with checks and balances that would prevent it from transgressing these principles.  But today’s United States Government is a far cry from their vision, and we have ample evidence that not only a tyrannical majority but also powerful special interests can usurp gubernatorial power to infringe the liberty of individual Americans.

Thomas Hamilton has a bold proposal for the proper course of action in these circumstances in his recent essay on “What to do when a government exceeds its constitutional bounds or infringes natural human rights.”  It’s not quite “revolution,” though our Founding Fathers fully expected that repeated revolution would be necessary to restrain our government.  Hamilton’s compelling argument is that a particular government does not have a monopoly on the authority that comes from the consent of the governed.  We happen to have a government that claims to be the sole and proper embodiment of the United States Constitution, but that doesn’t make it so.

Hamilton doesn’t advocate the creation of a competing government, but rather proposes that The People have as much of a right to create a separate authority to check the government as they do to establish the government in the first place.  He carefully tailors the nature of such a “Second Authority:”

It will only take action to obstruct or ameliorate the action of other agents (regardless of their authority).  By its nature and constitution it cannot initiate unprovoked action.

I assert that this qualification, along with the fact that its ideology should be grounded in the U.S. Constitution, makes its emergence plausible in the United States of America: All of the U.S. First Authority agents take an oath to support and defend the Constitution.  When the Second Authority credibly asserts that the First is acting in violation of the Constitution agents can in good conscience respect the conclusion of the second.

Essentially, under these criteria a body of citizens can band together to establish an organization that can legitimately oppose the U.S. government — with force if necessary.

Patriots may not like what sounds essentially like armed insurrection.  But there is no reason to believe that the existence of checks and balances, democratic action, or any other constitutional mechanism is sufficient to constrain a government from eventually violating human rights.  I am not confident that we can depend on our government to correct itself.  In practice nothing is perfect, but if checks and balances are working correctly then our government would eventually revert to its proper state, like a pendulum swinging back to center.  However I believe that our government has accumulated such power and so many bad precedents that it is now more like a pendulum on a tilting table … or perhaps like a pendulum that fell off a table and is rolling down a steep hill.

Requalify the Franchise October 31, 2008

Posted by federalist in Government, Natural Rights, Uncategorized.
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American liberals have been fought for years to extend the right to vote as widely as possible.  Not just to felons, but also to convicts still serving time in prison.  Not just to those who lack proof of citizenship or identity, but also to those who lack an address.  In essence, they think that every adult human being should have an equal voice in our government, simply because they exist and can make their way to a poll (or mailbox, if they can secure an absentee ballot).  This is a hazardous premise for democratic government.  We need to aggressively refute the assumption that the franchise belongs to everyone.  Instead the franchise should, as envisioned by the Founding Fathers, be earned and retained.  Possible qualifiers might include some or all of:

  • Citizenship (i.e., an affirmative contract between an individual and a government).
  • Military service
  • Property ownership
  • Literacy, education, and/or other evidence of a sound and functional mind
  • Law-abiding behavior

After all, think of the moral hazard when:

  1. Those who don’t pay taxes vote on tax policy and the allocation of tax revenue?
  2. Those who have broken laws vote on the establishment and enforcement of laws?
  3. Those who have nothing to lose can vote on the use of government to take from those who do?
  4. Those who have no contract with or obligation to the government vote on its structure and policies?

The Rise of Oligarchy in the United States October 28, 2008

Posted by federalist in Natural Rights, RKBA.
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Oligarchy is typically associated with single-party Communist states: These are institutions that take rights and property from the general population and distribute them to preferred party members in order to reinforce their power.  They are essentially state-sanctioned organized crime syndicates.

The New York Post reminds us that the New York City oligarchy has usurped our natural right to self-defense:  NYC recognizes the rights of only about 36,000 people to keep and bear firearms — “a list that includes celebrities, billionaires, and politicians.”  For everyone else: “Carrying a firearm without a permit is a felony punishable by more than a year in prison.”

They’re coming for our guns! October 15, 2008

Posted by federalist in Natural Rights, RKBA.
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Preparing to take advantage of expected Democrat super-majorities in federal government, the Brady Campaign just published a report arguing for the reinstatement of a new, tougher, federal “assault weapons ban.”  Federalist Readers know that I oppose any infringement of the right of American citizens to keep and bear arms, including military arms.  But I’m always willing to consider opposing viewpoints, so I took a look.

The 63-page report was written by Brian Siebel, one of their staff lawyers.  It consists mostly of anecdotes describing the misuse of assault weapons as well as a sprinkling of arguments and opinions from officials and experts who favor new restrictions on assault weapons.

The report defines “assault weapons” using the features Congress referenced when enacting the Assault Weapons Ban in 1994, as well as those used by the six states that have “assault weapon bans” of various flavors: CA, CT, HI, MA, NJ, NY (see report footnote 102).  These characteristics include:

  • High-capacity magazines (i.e., any magazine that holds more than 10 rounds).
  • Folding or collapsible stocks.
  • Pistol or thumbhole grips.
  • Barrel shrouds.
  • Flash suppressors.
  • Threaded barrels (which allow for temporary attachment of suppressors).
  • Bayonet lugs.

I managed to speak briefly with Brian Siebel after reviewing this report.  His core argument is that none of these “assault weapon features” is useful enough for hunting or defense to justify the misuse to which they have been put by criminals.  This is an assertion worthy of consideration, and I don’t have a database of defensive uses of assault weapons to rebut it.  Nevertheless, I can offer two counter-arguments.

  1. The anecdotal evidence of assault weapon misuse does not incriminate these assault weapon features.  I.e., yes, many crimes have been committed with assault weapons.  But in none of the examples provided by the report is it clear that any of the assault weapon features enhanced the “mayhem” wrought by the criminals.  It appears in every case that if the criminal had instead used a non-assault firearm we could reasonably expect to have observed the same outcome.  This incrimination by incidental association is not a strong argument.  For example, I may assert that red cars with independent suspensions contribute to reckless driving.  I can cite a number of fatal accidents in which a reckless driver was using a red car with an independent suspension.  (I may even discover statistical evidence that reckless drivers prefer such cars.)  But of course there are many such fatal accidents that did not involve cars with those features, and many drivers of such cars that are meticulously law-abiding.  If the reckless drivers had been in almost any other car we could reasonably have expected the same outcome.  Hence, neither this color nor this suspension is incriminated as a feature that increases “mayhem.”
  2. We must also note that police forces worldwide have in recent years equipped their agents with assault weapons.  The police are equipping themselves against the same criminals that threaten civilians.  Therefore, if the government believes community police are justified in carrying these weapons to defend themselves and the community against criminals, then citizens should be equally justified in arming themselves with these weapons for their defense in the absence of police (who, courts have confirmed, do not have an enforceable duty to protect any citizen).

Siebel offers a number of questionable assertions, and a few outright falsehoods, in the core section of his report, “Assault Weapons Have No Sporting or Self-Defense Purpose” (p.14).  Here is a sampling with brief rebuttals:

Silencers are also illegal.

40 states allow for private ownership of silencers.  Is it fair to characterize something that is legal in 80% of the country as simply “illegal?”  Siebel declined to qualify this assertion.

A silencer is useful to assassins but clearly has no purpose for sportsmen.

Siebel doesn’t offer any examples of assassins exploiting the utility of a silencer.  In contrast, I have previously argued that a silencer offers many benefits to sportsmen and indeed any user of a firearm who doesn’t want to damage the hearing of himself or bystanders, or expose them to unattenuated muzzle blast.

Assault weapons were designed for military use. They have no legitimate use as self-defense weapons.

This is simply contradictory.  “Assault weapons” are tactical small arms optimized for the use of individual soldiers defending themselves and small units against attackers.  The military can equip its soldiers with a wide range of weapons for their personal defense.  Almost across the board it prefers assault weapons.

Assault weapons have never been “in common use” at any time.

Siebel declined to elaborate on this assertion, noting that the definition of “in common use” will be adjudicated by future courts.  Suffice it to say that millions of “assault weapons” continue to be owned and used by Americans.  Furthermore, they are standard issue to police and paramilitary forces both in the United States and around the world.

How to Get the Federal Government Out of the Gun Control Business July 28, 2008

Posted by federalist in Natural Rights, RKBA.
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If we accept the more liberal “states’ rights” interpretation of the Second Amendment, which is that it only forbids the federal government from interfering with the militia rights of states, doesn’t that interpretation nullify most of the gun control currently practiced by the federal government? For example:

1. The National Firearms Act (NFA) requires the taxation and registration of any transfer of broad classes of firearms and accessories (e.g., machine guns and many other devices commonly used by the military) — even when the transfer is between individuals in the same state. How can the federal government regulate the disposition of militia arms within a state without interfering with that state’s right to regulate its militia?

2. The Gun Control Act (GCA) forbids a private citizen from acquiring a machine gun that was not registered privately prior to 1986. What if a state wants its citizens to be able to purchase new machine guns for militia service?

3. The NFA forbids the importation of Class III devices (which includes non-weapon accessories like suppressors) for purchase by private citizens. Again, doesn’t this infringe the right of states to regulate their militia? Is there an established theory by which the Commerce Clause legitimately supercedes the Second Amendment?

4. The Assault Weapons Ban of 1994 (which expired in 2004) further restricted the importation and sale of a wider class of weapons and accessories to “non law enforcement” personnel. Could states circumvent such restrictions by simply designating every “able-bodied adult” a member of their constitutionally protected militia? (And doesn’t the U.S. Code already make that designation?)

5. The federal government prohibits individuals from bearing arms in many locations outside of the District of Columbia — e.g., national parks, “federal” buildings within the states, airports. Is it clear that it has authority to do this in spite of the Second Amendment?

After extensive research I found this 1995 essay by Reynolds and Kates that addresses many of these questions, and which concludes that under the states’ rights interpretation “most federal firearms laws would not be applicable to citizens covered by state militia laws–though no doubt the federal government would retain the power to outlaw weapons obviously unsuited for militia use such as derringers, wallet-guns, umbrella-guns, and sawed-off shotguns.”

[F]ederal gun control laws could, in effect, be nullified by state legislation that requires militia members to possess banned weapons–legislation that might well reach a majority of the state’s population.

Many people are unhappy with the U.S. Supreme Court’s confirmation of the “individual right” interpretation of the Second Amendment in D.C. v. Heller.  Just to make sure we’ve got all the bases covered, let’s encourage the states to assert their Second Amendment rights by nullifying the NFA and GCA!

Can Technology End Firearm Rights? July 2, 2008

Posted by federalist in Natural Rights, RKBA.
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Paul Robinson’s NYTimes essay “Shoot to Stun” has an important thesis: If less-than-lethal weapons become more effective for personal defense than handguns, presumably that technology would eliminate our Constitutional right to keep and bear handguns.

Robinson is optimistic on stun guns, though at present tasers are not as effective as handguns for personal defense. Taser darts cannot penetrate heavy clothing. A single stun device cannot defend against multiple assailants. And tasers cannot incapacitate a determined assailant long enough for help to arrive. But suppose less-lethal technology finally does produce a defensive weapon that is as versatile, reliable, and effective as a handgun. Would the government then be justified in banning the keeping and bearing of handguns? I suppose they would. After all, as Robinson points out, bullets are a sloppy and imprecise means of defense. There is no natural or Constitutional basis for preserving a right to arms that are less effective and more dangerous than ready alternatives.

Now, Robinson’s essay has some critical shortcomings. For one thing he appears unaware that a majority of United States have passed “Castle Doctrine” laws, which sanction the use of lethal force against anyone forcibly invading a home — without further regard to the presence of an “imminent threat” or to the “proportional” use of force.

Anyone trained in armed defense knows that ideally a handgun is kept only to enable you to fight your way to a rifle or shotgun. Handguns sacrifice defensive power and accuracy in favor of convenience and portability. But Robinson frames his entire essay in terms of the limited capabilities of handguns. Robinson seems to assume that our right to keep and bear defensive arms exists only for the purpose of personal defense against a small number of unsophisticated assailants, and only in a space extending ten or twenty yards from the defender (i.e., roughly the effective range of a handgun). I disagree with that assumption.

I maintain that the preamble to our Constitution’s Second Amendment extends our natural right to keep and bear arms from those suitable for immediate personal defense to any arms that are suitable for militia use. I.e., every person has a natural right to keep and bear arms suitable to defend himself and his property. But Americans enjoy an enhanced Constitutional right (still as individuals) to keep and bear any weapon that a government would provide to a military force in order to defend ground against a military aggressor. Americans are not subservient to any government. They are not legally dependent on their governments for defense (in fact, no government has an enforceable duty to defend its citizens). Indeed, Americans should stand ready as individuals to band together in their own defense against any government, foreign or domestic, that would attempt to forcibly infringe their natural or Constitutional rights. Hence government cannot infringe the extra-gubernatorial right of Americans to keep and bear arms suitable not only for personal defense but also for mutual military defense.

Will technology ever produce non-lethal devices capable of obviating the need for lethal military weapons? If an individual could surround his property with an impenetrable barrier then presumably he would have no need for weapons. However in practice one suspects that any technological defense is susceptible to technological countermeasures. An escalating cycle of countermeasures is ultimately won by the opponent with the most resources. Unless this rule is broken it will remain the natural right of individuals to defend themselves against adversaries (including wealthy adversaries) with “primitive” lethal weapons.

War (on Drugs) Is Not The Answer! February 28, 2008

Posted by federalist in Government Regulation, Healthcare, Natural Rights.
4 comments

As if the FDA’s regulation of pharmaceuticals weren’t damaging enough, we now have the Department of Justice’s Drug Enforcement Agency trying to expand the War on Drugs to involve more chemicals with bona fide medical uses.  (Where are all the voices who lamented the expansion of the War on Terror from Afghanistan to Iraq?)  WSJ has a number of good letters today explaining why the whole War on Drugs is a vain endeavor.  Suggests Joe Reimers:

The so-called war on drugs of today is very similar to Prohibition of the 1920s-’30s. It has built multi-billion dollar criminal empires, made criminals of people who would otherwise be little more than dead-beat losers at worst, and corrupted large chunks of government and law enforcement in various places around the world, including here in the U.S.

Why not legalize drug possession/use (as long as it’s not associated with another crime or DUI) for adults, while at the same time eliminating any legal barriers to discrimination against users by any entity, public or private, for any reason, or for no reason at all. This would remove the drug problem from the criminal justice system and address it by societal discrimination.

Secession and the Consent of the Governed February 22, 2008

Posted by federalist in Federalism, Government, Natural Rights.
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With Kosovo declaring its independence it’s a good time to ponder the perennial movements for secession around the world.  How can a government legitimately bind those who have not given their consent to be governed? A good friend recently pointed me to Lysander Spooner’s 1867 essay, “No Treason” — required reading for all discussion of natural law and just government.

Spooner’s thesis is that we are not traitors for refusing to submit to a government to which we did not pledge allegiance, or with which we have no contract. He argues at length that our natural rights to life, liberty, and property cannot be infringed by a government unless we have individually and explicitly agreed to join it. I.e., “We the People” cannot claim the consent of those who do not affirmatively sign on to that Body Politic, nor can it exercise just dominion over those who do not participate.

[T]he whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a universal right of all men, at all times, and under all circumstances.

One essential of a free government is that it rest wholly on voluntary support. And one certain proof that a government is not free, is that it coerces more or less persons to support it, against their will. All governments, the worst on earth, and the most tyrannical on earth, are free governments to that portion of the people who voluntarily support them. And all governments though the best on earth in other respects — are nevertheless tyrannies to that portion of the people — whether few or many — who are compelled to support them against their will.

His reasoning suggests a test for legitimate government: Can it survive if individuals have an ability to secede, or if it cannot coerce people to join? Clearly our present government would collapse if individuals were allowed to secede. However I believe our federal government as constituted could survive. Our goal, then, should be to return to a government that people would voluntarily join.

(more…)

“Puzzling” Second Amendment Solved! February 1, 2008

Posted by federalist in Natural Rights, RKBA.
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Opponents of our natural rights to self defense often try to convolute the semantics of the second amendment to the Constitution, which states, “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

For example, Erwin Chemerisnky argues that “The language of the Second Amendment is a puzzle,” citing its reference both to a “right of the people” to arms, and its reference to the necessity of a well-regulated militia.

David Hardy offers the most lucid explication I have yet seen:

The wording becomes utterly clear once we realize that, at the time, “militia” meant the entire male citizenry, bearing their own arms, and “well-regulated” meant “orderly” (Samuel Johnson’s dictionary treated the two as synonyms, and many writers referred to a well-regulated gentleman, or well-regulated tastes). “Orderly, armed, citizens being necessary to a free state, the right of the people to keep and bear arms” makes perfect sense.

Indeed, the U.S. Code still preserves this original definition of “the militia”:

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

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Restricting Private Weapons June 30, 2007

Posted by federalist in Government Regulation, Natural Rights, RKBA.
2 comments

A true Constitutionalist must believe that the federal government should not ban private ownership of military weapons.  Most people think it’s utter lunacy to contemplate an individual being allowed to buy things like grenades, or a 155mm howitzer.  To me it is perfectly legitimate.

Consider the case of motor vehicles.  We let almost anyone — even minors and felons — purchase and operate cars that carry a combustible payload of fuel and which can easily weigh three tons and travel over a hundred miles per hour.  When aimed correctly a single passenger vehicle in a single collision is capable of killing many people and destroying hundreds of thousands of dollars in property.  Cars greatly enhance the ability of criminals to steal the property and lives of other people.  So how can a society full of car drivers survive?  Two simple rules make this work:

  1. Every vehicle is registered to an owner, and it is very easy for law enforcement to trace a car used incorrectly to its owner.
  2. Every vehicle owner has to post and maintain a bond to cover the potential misuse of his vehicle.  Typically he does this through a third-party insurance contract, though (at least in some states) owners can “self-insure” by convincing the regulator that he has enough money to cover reasonable liabilities.

How can a polite society permit unrestricted weapons ownership?  Well the first key point is that only responsible citizens enjoy full liberties.  If you are a child, a felon, or certifiably insane then you already lack the right to keep and bear arms.  Do we need to worry about a wealthy individual having a bad day and lobbing his registered grenade into a crowd of innocent bystanders?  Or about his teenage son taking the grenade to school?  Probably not if there’s a six-figure bond covering the use of that grenade, and especially not if chemical tracers can irrefutably finger him as the device’s owner and put him in jail for criminal negligence.

Would criminal gangs be unstoppable if they could keep a main battle tank in their hideout?  Again, somebody with full rights would have had to register that weapon system and post a huge bond to insure against its misuse.  I.e., a responsible party is on the hook.  It’s not like somebody is going to drive a tank downtown and fire a few 120mm rounds without people noticing where it came from.

What about the most extreme case, a thermonuclear bomb?  We could perhaps exempt high-yield nuclear weapons from private ownership simply because they are strategic, not tactical — or more saliently, they are fundamentally a terrorist weapon.

Returning to more practical considerations, one may wonder why we should contemplate private ownership of powerful weapons.  What legitimate role could they play in a stable democracy like ours?  I guess this may be where Principled thinkers diverge from Pragmatic ones, but in principle I know that only tyrranies need to disarm responsible individuals.  I also know that even stable societies can break down — sometimes only temporarily — and the fact that we are enjoying a period of peace and prosperity doesn’t mean that chaos is impossible.  If citizens with property want to invest in private arsenals, either for their own amusement or as insurance against a marauding mob that the state isn’t in a condition to beat back, why should our society show preference to the mob?  Especially when a registration and bonding regime is capable of adequately dealing with weapons of every caliber.

The Punchline

It may surprise many Americans to know that the federal government actually does allow individuals to buy things like grenades or working artillery pieces.  Our laws, together with the executive Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) draw amusingly arbitrary lines on weapons ownership:

  • “Armor Piercing” bullets are illegal to manufacture or import.  The criteria for what this ban encompasses are too complex to mock in this space.  (However there is still an existing supply of legal bullets manufactured before the ban.  Since the ban fixed the supply tungsten core rifle bullets now cost upwards of $1 apiece.  Who buys them?  Probably speculators.)
  • Individuals cannot own any machinegun manufactured after May 19, 1986.  (As a result of this fixed supply the market for legal machineguns is very expensive: The cheapest now sell for at least $4000, and popular models like the M-16 are now around $12000.  Again, many owners are now investors.)
  • Any firearms with shoulder stocks have to have a barrel of at least 16″ and overall length of 26″, or else they have to be purchased as an NFA item.  (NFA items, named in the National Firearms Act, can be legally purchased by individuals as long as they register the purchase and pay the “Transfer Tax,” which for most items is $200.)
  • Shotguns with barrels shorter than 18″ are NFA items.
  • Any gun with a bore diameter over half an inch is considered a “Destructive Device” (DD) unless it’s a “shotgun suitable for sporting purposes” or a muzzle-loaded firearm.  “DD”s are a special class of NFA items that are often more harshly restricted by state laws.
  • The feds will let you buy a grenade, as long as you register the device and pay the $200 tax (that’s per grenade).
  • A suppressor (“silencer” — actually, any component that can be readily used to construct a firearm silencer) is treated as an NFA firearm.
  • Interstate commerce in “switchblade” knives is also prohibited, except to the military or to people with only one arm.

Note that criminals can easily modify many non-NFA firearms to create short-barrelled or automatic weapons for less than $200.  Meanwhile, law-abiding citizens can buy grenades and commission 155mm howitzers if they pay a $200 registration tax, but they cannot legally buy new machineguns or “armor piercing” bullets for any price.