Fear Of Equalizers

[The following subsumes two essays that appeared at Eternity Road in March, 2005. In light of this foofaurauw, they seem once again to be highly relevant – and let no one dare to claim a “compelling government interest” within my earshot! – FWP]

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Part I: The Basics

Quite a lot of conservatives -- even a few hard-core libertarians -- are squeamish about the right to keep and bear arms. One very bright fellow of your Curmudgeon's acquaintance opined that "rudeness ought not to incur the death penalty," implying that he would expect a wave of homicide in the streets were the tradition of bearing firearms in public to be renewed. Another wanted to know what would become of peaceful public places such as supermarkets and movie theaters, should the hips of citizens be decorated with weapons once more. Granted that cell phone users can be very annoying, he said, surely they deserve no more than a broken arm, at worst.

At least one doesn't hear the old private-nuclear-weapon chestnut too often, these days. But anyway, even a lot of staunch defenders of the Bill of Rights and its philosophical premises appear comfortable with empowering the State to decide:

1. Who shall be allowed to own and carry weapons, and:
2. What weapons shall be deemed acceptable in private hands.

Why? Why should the State, which institution has more bloodshed to its credit in a single century than private parties have amassed down all the ages of Man, have the power to decree some men and some weapons licit while others are not? How can the State, which ceaselessly strives to increase its power over the individual, justify forbidding the individual to arm himself against both State excesses and private predations? And how can anyone who understands the immense danger the State poses to human well-being bless its usurpation of this all-important privilege?

In For A New Liberty, Murray Rothbard asked the question in a de novo setting. Imagine, he proposed, that we were dropped to Earth without any history at all, and chose to form a State for some set of perceived collective purposes. Regardless of how that State were organized, would anyone deem it wise to allow it an unchallengeable preponderance of coercive force, such that its subjects would be incapable of resisting it at need?

Other thinkers have approached the matter from a historical perspective. In every instance where the State has disarmed its subjects, they note, massive oppression and slaughter have followed. Therefore, if we draw the lessons from these episodes, we are well advised to allow the State no such authority. Indeed, it just might be best to forbid the agents of the State and only them to wield firearms.

Both arguments are cogent and on point. But substantial numbers of solid conservatives profess to be unconvinced. Why?

It might have something to do with economics.

The politically engaged tend to be among America's better off. Conservatives in particular often feel they have a lot to defend. In the main, they've worked hard for what they have, and justifiably feel that they deserve it and deserve to keep it. If our typical conservative, Smith, senses some sort of threat to his position and holdings, from where would it emanate, and what form would it take?

Most violence and crime against property takes place in a relatively small sector of the country: the heavily populated urban areas and their nearest, densest suburbs. Smith is highly unlikely to live in such a locale, preferring the greater safety and gentility of the outer suburbs or rural America. Therefore, he's unlikely to be too often aware of his vulnerability to personal attack. Nor will he think of his home as a probable target for plunderers.

However, Smith hears the stories, as do we all. He hears about the plagues of gunfire and gang warfare on the evening news; he simply can't get away from them and remain reasonably well informed. So the "threat" posed by firearms, which the Old Media have promoted ceaselessly since 1965, will appear linked to forces which, were they to impinge upon his life, would have the aspect of an invading army, albeit one that wears no uniforms and flies no banners.

Given this sense of a potential but distant threat, Smith would prefer to see it kept at bay by "professionals": the police and armed forces. Economically, it makes more sense to him; a citizen militia would cut too deeply into his time and the walk-in trade at his place of business. Besides, defending the borders is what government is for, isn't it?

Another economic vantage arises from the comparative theory of wealth: that Smith regards himself as wealthy only because he has more than most others. If those others are poised at his gates, and might just be contemplating the redistribution of his wealth, he'd rather wrap himself around his property than take up arms to repel them. It will be infinitely easier for "the authorities" to protect him and his if no one else is permitted a firearm; it will make their targets easier to spot.

These are natural reactions to the asymmetric state of affairs that prevails in American society at this time. In a way, they're the class-warfare angle to the right to keep and bear arms, which its proponents would prefer to see as class-independent. In truth, the whole country would benefit were we to go back to being a gun-toting people. Widespread availability of firearms under the widest conceivable array of circumstances would put ordinary citizens on an equal plane with the predators that prowl among us. Beyond that, it would put us at each other's disposal; citizens are far more likely to come to one another's aid when they're armed. Finally, the heightened prospects for any insurrection that might arise would have a sobering effect on our political class. It's just hard to see that picture when one is consumed by the more lurid fears described above.

Instead, folks who ought to know better divert the conversation to strawmen such as the nuclear-weapon conundrum. Others harp on the militia clause to the Second Amendment, which was understood as explanatory rather than restrictive when written and hasn't changed since.

It's hard enough dealing with the hardcore statists. Your Curmudgeon wishes those who claim to stand with us on principle could dispel the phantoms from their vision.

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Part II: The Limits

With regard to this screed, commenter Jonathan opined:

There do have to be *some* limits on personal weapons. The nuclear weapon chestnut is a real problem for pure libertarian ideas.

An extreme example shows that there must be limits, then the argument shifts to just where to set those limits.

If everyone had access to a $20 device that could destroy the universe, how long would the human race survive, given the frequency of murder-suicides?

Personal weapons ownership rules have to be based on how many people will be killed before the user can be stopped. It’s just another issue of balance between freedom and safety.

All right, your Curmudgeon will discuss the nuclear-weapon chestnut. It keeps coming up, which suggests that not much is known about either libertarian thought or the principles behind property rights -- or that the enemies of freedom are still hoping to palm a card on the rest of us.

The concept of ownership -- that status that confers rights over the thing owned -- has a small number of prerequisites:

1. The thing owned must have been acquired either by:
   • homesteading: That is, it was previously owned by no one, and the owner gathered it in by his own action or the action of a contracted agent;
   • trade: That is, it was previously legitimately owned by another, who parted with it voluntarily in exchange for some other consideration, or none.
2. The thing owned must be held apart from the common: That is, the owner must sustain his claim of ownership by assertion, use, and the maintenance of the thing in an "improved" state.
3. The thing owned must be within one's adequate control: That is, one must be able to make reasonable guarantees that neither its possession nor its use will infringe upon the rights of any innocent party.

Failure of any of the above conditions nullifies a property claim. For example, having acquired a plot of land, Smith might permit it to deteriorate to the point that it can no longer be distinguished from an unowned field. That would nullify Smith's claims through the agency of neglect. Alternatively, he might pollute it in such a fashion as to pollute his neighbors' lands as well. That would nullify his claims through the agency of inadequate control. Either of these would warrant a fresh homesteading of the field, or seizing the field from him on the grounds of a clear and present danger.

If the language sounds familiar, that's because it's well embedded in Anglo-American legal practice for about three centuries now.

Adequate control is also the logic behind assessing a claim of damage against an owner for what his property did without his knowledge. For example, if Smith were to buy gasoline -- an ordinary sort of transaction -- and store it in his garage, he would become liable for any damage that gasoline might inflict on others. If he were to park his car on a hill, and the car's parking brake were to fail and send it careening into a crowd, he would be liable for the deaths, injuries, and property damage that ensued. And if he were to acquire radioactives, which then poisoned his neighbors or made their homes uninhabitable, he would be liable for those crimes as well.

By acquiring an item, the owner assumes responsibility for whatever that item might inflict upon unconsenting others. Alfred Bester's classic short story "Fondly Fahrenheit" is a neat dramatization of this principle.

Since a nuclear weapon imposes massive hazards upon everyone in the area in which it is stored, and since by its nature it cannot be used in a fashion guaranteed to affect only some targeted aggressor, a private party that acquired one would fail the test of adequate control. Even governments, which are theoretically capable of securing such devices and guaranteeing that they won't be used against their own citizens, have to meet very stringent tests to be allowed to possess them. The key issue is the "mass destruction" characteristic. It would justify the decision of one's neighbors to seize the offending item and destroy it, to put an end to the hazards it imposes on unconsenting others.

There are persons who argue that the same logic can be used to justify banning private ownership of machine guns and conventional explosives. Admittedly, this is a gray zone, though military experience suggests that light automatic weapons and grenade-scale explosives can be used in a targeted fashion. However, the principle is the important matter here: to maintain ownership of a thing, one must be able to distinguish it from the common, and must guarantee adequate control over it and all its effects upon others. Such guarantees simply cannot be made about a nuclear weapon, a bioweapon, a tank of nerve gas, or any other weapon of mass destruction.

In deciding the gray-zone issues such as full-auto weapons and small quantities of explosives, legislatures and courts must respect the fundamental principles outlined here. Otherwise there can be no coherent, defensible concept of private property -- and isn't the defense of private property, including one's life, what the ownership of weapons is all about?