Sunday, December 2, 2012

Guns and Drugs

Before anyone draws assumptions from the title, this is not yet another in my series of essays explaining how "drug violence" is largely the result of our war on drugs. In fact, it has nothing, or very little, to do with drug violence at all. No, this is a very simple essay, though probably a long one, demonstrating which will doubtless be quite uncomfortable to many on both sides of the aisle, and that is that the logic used to justify gun control is essentially the same as the logic used to justify the war on drugs, and thus, if one is consistent, he would need to support both, or neither. Now, granted, there are probably some on the left who would have nor problem with both, but excepting them, there are probably many on the left who support "medical marijuana" and other loosening of drugs laws who would be quite uncomfortable with the argument that such measures must be justified by loosening gun laws as well, and there are certainly many on the right who oppose gun laws quite vehemently who would not even think of relaxing laws against drugs1. Then again, I am rather used to upsetting conservatives as well as liberals, so let us begin the argument.

Before we begin, let me make clear I am not a standard libertarian proponent of liberalized drug laws2. I do not make arguments about hemp being a "renewable resource" or absurd claims about smoking marijuana being less harmful than tobacco. Nor do I engage in dodges such as medical marijuana to conceal my real goals. I do argue that drug laws often do harm we do not see, I even offer up some personal examples3, but that is not the basis of my argument. My argument, quite simply, is that there is no justification under our system of government for making drugs criminal, or treating them, differently from any other good, and the same applies to guns. In my view, unless there is some very significant reason for treating some material differently, all goods, of whatever nature, should be treated the same, and thus passing laws specifically concerning guns or drugs is absurd. Yes, I have more arguments than that, some based upon individual rights and the role of government, some upon the consequences of ignoring those rights, but, in the end, it really just boils down to the fact that the government has no reason to pay special attention to drugs or guns, and thus lacks any authority to pass these laws. But, rather than try to summarize my entire essay in this paragraph, allow me to proceed with the essay proper.

The basis of my argument for decriminalizing drugs follows closely on that offered by Ludwig von Mises in Human Action. Though he did not go into much detail, in a few short sentences, he summarized the basic problem with drug laws. Granted, he said, drugs may be harmful, but if we are to prevent people from doing what we think is harmful to themselves, where do we draw the line? Are not bad ideas even more harmful to both them and society than any drug? So, if we are to use the state to prevent harm, then what argument could we offer against censorship?

Of course, arguing when he did, to the audience he did, von Mises did not see the need to go any farther, he did not anticipate the "line drawing" arguments that would fill the law books of the US in the 20th century, nor did he imagine the explicitly inconsistent pragmatist who would openly argue that holding inconsistent beliefs is an unobjectionable position. And so he imagined that pointing out the same logic that supported drug laws also supported censorship made clear that to support one was to support the other.

Unfortunately, such obvious assumptions are no longer routinely accepted, and so I see it falls to me to point out the obvious, that once one adopts a belief, no amount of line drawing will prevent that logic from being taken to its logical conclusion. Despite the countless examples before us (the Commerce Clause4, Griswold5, the gradual criminalization of smoking6, Kelo7 and more)  we still imagine that our own pet cause, be it drugs or guns or prostitution or television language codes or public education8, will be the one case where we can successfully draw a line, and the logic of our position will run that far and no farther9.But, before we begin that discussion, let us look at the ostensible subject of this essay, the foundation upon which our later discussion will be built, the similarity in justifications provided for both gun control and drug laws (as well as many, many other laws).

The basic argument for gun control is, simply, that no one "needs" guns. Well, that no one needs them, and that they are potentially harmful, either to the owners themselves, through accidents or suicide, or to others, when the owner makes a bad decision10. The second argument, the potential for harm, is itself almost never brought up any longer. At times there will be a debate over the number of crimes prevented versus homeowners shot, or a discussion of the true rate of accidents and suicides, but, strangely, for the most part, debate seems to have settled down over whether or not specific guns are "necessary", be it automatic weapons on pistols with large clips. It seems the gun control debate, outside of a few supposedly "extremist" groups, has become limited to what one truly needs for hunting or self defense.

Strangely enough, drugs laws also seem to have followed the same pattern. Drugs are largely made illegal on the basis that no one "needs" drugs, and that they are harmful, both to the users and, indirectly, to those associated with them. And, just as with guns, the debate over harm has largely been deemed settled, with the debate, as seen in the "medical marijuana" debate, centering on whether some specific drugs may have a socially acceptable use11. But, as with guns, there has been almost no mention of whether or not the state has a role to play in protecting us from ourselves, or from those with whom we voluntarily associate. The entire debate assumes as a given that something deemed "harmful" can be banned if it is also not "necessary".

There are countless problems with this position, as we shall discuss, but let us start with the most obvious, and the one completely ignored by partisans on either side, the one reality which renders the entire debate laughable. The words "harmful", "necessary" and "need" are all entirely meaningless12. Or, at best, have meaning only within specific contexts, and then only when considered in light of individual preferences. Which means, the terms we use as if they had some sort of scientific precision, the words we use to decide whether or not something shall be legal, are nothing but a thin veil hiding the preferences and prejudices of those making the laws.

As most people will find that statement counterintuitive, being used to distinguishing "wants" from "needs", and otherwise treating those words as objectively defined, allow me to explain.

"Need" is a word which has a meaning only when defined in terms of a specific goal. Without an objective in mind, you need nothing. I admit, some assume that "need" means "need to survive", but if that is the case, then the drug and gun tests would both also justify burning books, banning free speech, closing universities and making us all serfs tied to the soil, as books, free speech, education and liberty are not necessary for survival. Given that, it is obvious that when people use the term "need" in context of drug use, or gun ownership, they have some other, nebulous, definition in mind, most often, though they would not admit it "could I live without this?" And that is why this term is so ludicrous in terms of both gun and drug laws. If I feel my protection requires an automatic weapon, or that my life would benefit from using drugs, then in my valuation I need them. To argue I do not can only be done by positing that some other values are better than mine. If that is not what it means, then we are once again reduced to that "needed to survive" definition, and the banning of almost anything is justified.

Of course, some will reply that the test is twofold. Yes, the necessary to survive test could be used to ban anything, but we are only banning drugs or guns because we don't need them to survive AND because they are harmful. But once again, we run into a problem. What does "harmful" mean? That it has the potential to cause physical damage? Emotional harm? Economic? By those definitions, I cannot name an object in my house which could not qualify. Used improperly, anything can cause physical harm. And if we expand it to emotional or economic damage, then it is absolutely impossible to see where we could draw a line.

In everyday life we resolve this by looking at the probability or risk, and the scope of potential harm, and judge as dangerous those things which are likely to cause harm, and harm of a substantial degree. However, we also have a third element in everyday life, we balance this risk against the utility. If we looked only at risk, not one of us would own an over or wire his home for electricity, as both have a risk of causing very serious harm. The same for cars and planes. Not to mention most medications which, taken improperly are almost all lethal poisons. But, in everyday life we weight this against the benefit, and consider as unacceptably dangerous only those things which are dangerous without any counterbalancing benefit. We take medications that are lethal poisons because we know the dose we take is more likely to bring benefit. We drive in deadly autos or fly in deadly planes because the convenience outweighs the risk of fatal accident. We wire our houses for electricity, store propane and oil, cook over open flames, even burn wood in fireplaces, because we value the benefit far beyond the potential risk.

At which point in the argument those supporting banning both guns and drugs would argue that what they mean is not that there is some objective danger, but instead, that the benefit is not worth the risk. They would argue that guns are too dangerous for the small benefit they bring, or that drugs entail a tremendous health risk, and social costs, while bringing no discernible benefit.

But that final statement shows the flaw of this argument. If drugs were without benefit, then no one would use them. Drugs cost money, they entail the risk of jail, they are difficult to obtain, and there are health risks which have been well publicized for a long time, not to mention -- in most circles -- there is a social stigma attached to drug use. And yet, people continue to use drugs. Thus, unless we imagine that people are insane, there must be some benefit, at least in the minds of the users, to the drugs13. People use drugs because, for whatever reason, they find it valuable to do so. And, what the "no benefit" argument overlooks is, there is no objective definition of "value". If I find it valuable to attend church and you do not, is church valuable? The answer is "it is to me", and the same is true of those who desire guns and drugs. To them, owning and using either is of value, regardless of whether or not others agree, and that is the only meaningful way in which we can determine whether something is beneficial or not, whether individuals find it beneficial14.

Of course, some will say I am misunderstanding the meaning of harm or benefit, that there is some objective measure involved, so let me offer up six examples of the logic applied to acts currently legal to show how the same reasoning can ban things that, in at least some cases, may be important to my readers.

I. Clearly, the easiest argument would be for risky recreational activities, such as skydiving, or even less dangerous ones such as surfing or skateboarding. Such activities obviously entail risk, as those engaging in them sometimes suffer harm they would not have suffered otherwise. And such actions do not provide any economic, cultural or educational benefit to those participating. So, they are harmful, and have no benefit, yet they impose risks upon those participating, harm their families which must support them when injured, and impose costs on our society. By what logic could we argue against banning them?

II. Or let us turn to another dangerous recreation, auto racing. Granted, there are a limited number of individuals involved in the actual racing, who are at risk, but their actions also encourage others to join in amateur racing, sometimes illegal street racing, and, by glorifying fast driving, generally add to the risk of our society. There is no benefit to such activities, no one benefits from driving in a circle very fast, so, what argument could be offered against banning all auto racing?

III. Another danger is the motorcycle. No benefit derived from a motorcycle cannot be obtained by driving the safer car. In fact, with smaller cars, even fuel efficiency is no longer an issue. Motorcycles increase the degree of injury suffered in accidents, yet provide no benefits. Thus, again, why should they not be banned?

IV. And now to turn to one that has sometimes been proposed seriously, if only by some fringe groups, what argument is there against banning meat? We know heart disease and cholesterol are big dangers, especially later in life, and meat adds to that risk more than most alternatives. And even if the science is not entirely settled, why risk it when one can survive just as easily without it? There is no clear benefit to meat we cannot get elsewhere, so why should it not be banned?

V.  Or let us return to von Mises original argument. Now, I doubt many would want to see all books banned, but what about books that tell us how to make bombs? Or maybe that advocate revolution? Or are in any other way dangerous? Again, they do harm, and they provide no clear benefit. Why would anyone need to know how to make a bomb? Why would they need to read a call to revolution? There is no obvious benefit, and yet a clear risk of harm. And so, by what argument could one oppose a ban?

VI. Finally, and the one that is the most contentious, but also one some people have probably considered at one time or another, why not ban organized religion? It teaches nothing but falsehoods according to many, it wastes resources, takes up time, teaches dangerous extreme beliefs, interferes in our political system and otherwise puts us at risk. It brings no obvious benefit, so why not ban it?

And yes, I meant that last one, or the last two, to be extreme cases. Because there is nothing to really stop us from starting at banning guns and drugs "for our own good" and ending up burning books and closing churches. Once you say individuals cannot decide what they value, but must avoid those things the government say have no worth, there is nothing to stop us from reaching those extreme examples. If you doubt it, look at most great totalitarian states. In addition to organizing economies, their other love was telling people what they should and should not value. And they enacted laws not too different from either our current, relatively small bans, as well as the most extreme examples I gave above. As I said, once we accept that the government can substitute one set of values for our own, there is no limit to where it can go with that authority.

Again, some will counter by arguing that we can draw lines, that there are some such prohibitions accepted by "society as a whole" and we can make those law without going any farther, that so long as we just ban drugs, or enact gun control, or stop prostitution, or limit what is taught in schools or said on television15, or whatever they see as acceptable and traditional, there will be no problem with slippery slopes.

But there is a problem, or two.

First, there is a lot less agreement on what is traditional or acceptable than most people think. If it were so clear cut, then we would not have so many arguments about it16. But even if there were some question about which 75% of us felt one way, why does that mean the ban will not change? Clearly the other 25% will be fighting to remove it, so it will remain a contentious issue. And I am certain, within that 75%, there are some who want to take it farther. So, not only will it be contentious, but there will be those pushing in both directions. And, doubtless, things will become more polarized, and, over time, the issue will become a symbol for various other beliefs. (Eg. As amnesty for aliens or drug legalization have come to be tied up with a host of other issues.) And before too long the clear, traditional, obvious answer will go by the wayside and the line will move back and forth, as many argue it never would.

But let us ignore that, and assume there is some issue on which there is 100% agreement. Even then, there is another problem. As I said, and as von Mises assumed everyone understood, once you accept a bit of logic, you cannot avoid its conclusions. Many argue you can, but that is fantasy. In an argument, the most consistent side wins, maybe not in every argument, maybe not in every vote, but over time. The public can tell when someone is consistent, and someone is arguing from both sides, and they feel better with consistency. And so, over time, every law runs to its logical conclusion. I showed it in several examples above, and I can show it again.

Just look at liability law. Not the big picture, how it went from trying to making sure caveat emptor did not prevent payment to the current quest for deep pocket regardless of guilt17, though that is a good example as well. No, let us look at one small aspect of that, the argument that plundering companies to help the little guy is good, regardless of traditional liability. It started in asbestos, where the inability to sue the government, which was most likely the liable party in many cases, led the lawyers to create fictions to sue companies which had little control over the uses to which their product was put, or the safety precautions taken. That was supposed to be a noble lie in a noble cause. But, using the same logic, and money won, they then took on the tobacco companies, ignoring that users assumed risk, and used the same "noble lie" to plunder them. And now, they are moving against fast food, soda companies, all manner of companies where users might have voluntarily taken a risk, but because they suffered some harm, the same noble lie suggests they should be paid.


And no, this is not only the case in courts of law. Everywhere we can see that there is simply no way to draw a line. Find any historical line, and almost immediately there were others trying to cross it, using the logic of the decision to undermine the limits. And, so long as that logic remained on the books, others would keep trying. And it takes but one win to erase whatever line is drawn. And given enough effort, a win is inevitable. Thus, whether we like it or not, lines simply do not work. Every law must be crafted with full awareness of what it implies, as sooner or later those implications will be laws as well.

And that is the point of this whole effort. Not so much to argue against gun and drug laws, though I clearly feel both are improper, but to point out to those who support one, that they are implicitly supporting the other as well, as both rest on the same logic. And more, not only are they supporting both, but also are supporting a rationale which say, so long as someone cannot see the value of something, and it is not clearly necessary -- whatever that means -- that when that individual gains sufficient clout, a ban can be enacted. And, regardless of what you may feel about the issue, there will be little argument to be offered, as our nebulous terms such as "harm" and "need" mean that there is very little needed to justify such a ban.

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1. Some, both left and right, might also be interested that the same arguments also apply to our ever increasing efforts to demonize smokers without explicitly banning smoking. See "Addicts?", "Twisted Priorities", "Practicality Versus Dogma" and "Socialism on the Installment Plan".

2. Actually, I am not a libertarian at all, though I share some of their beliefs and goals. See "Why I Am Not A Libertarian", "Reforms, Ideal and Real" and "The Benefits of Federalism", as well as "Reticent To Adopt a Title", "A Possible Designation", "The Right Identity" and "Learning From Crows". I also recommend "The Libertarian Left", "Liquid Ice? Female Father? That's Nothing!", "The Failure of Wikipedia", "Copyright as Politics", "Some Libertarian Analogies", "Revelation From Bottom Feeding" and "The Tragedy of the Creative Commons".

3. See "Standing By My Principles", "Medical Regulations", "Medical Regulation II", "Drug Legalization", "Who Does It Harm?" and "It Doesn't Matter to ME...".

4. The Commerce Clause was initially meant as a means to remove barriers to trade. I have always imagined it was worded vaguely because the founders knew an explicit prohibition against interstate taxes or tariffs would lead to clever subterfuges to get around it. However, because it was so vaguely worded, it has continued to reach farther and farther. Once we admitted the government could interfere in interstate commerce, we could draw no limit to that interference. Nor did it stop at interstate traffic. Soon it touched on in-state transactions (Munn v Illinois 1890), banking whether interstate or not,  non commercial actions (the Mann Act, the FBI, the Violence Against Women Act) and even gun control, again, whether it involves multiple states or not.

5. Once we allowed the basic logic of "marital privacy" it was almost inevitable that all matters relating to procreation would become off limits, with or without marriage, and regardless of constitutional justification. (See "Slippery Slopes".)

6. For those too young or uninvolved to recall, the first smoking ban was only on international flights, which was supposedly logical as people could not choose to escape smoke. It extended to all flights, but would supposedly go no farther, as it was not about banning smoking, only ensuring protection for non-smokers. Anyone care to argue that line drawing worked out? (See "Addicts?".)

7. Kelo is the logical outcome of two bad ideas, first eminent domain, and second, "public cost" and "public benefit" theories. See "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"".

8. I discussed my objections to public education in "You Don't Drown in a Glass of Water - Vouchers Revisited", "Why Vouchers are not the Answer" and "Never Ascribe To Evil, A Discussion of Education".

9. The basic argument was first laid out in "Inescapable Logic", then "The Cycle of Compassion", "Recipe For Disaster", and "The Endless Cycle of Intervention". It was revisited many times after that, in posts such as "Don't Blame the Politicians", "Doing Something", "Pyrrhic Victories", "Damn the Torpedoes!", "You Lose When You Think You Win", "Grow or Die, The Inevitable Expansion of Everything" and "Why We Lose". Many of the same arguments will appear in this essay, but these older works may be of interest for those seeking a more in depth discussion.

10. Oddly, though criminals and their most recent acts of gun violence are often used to justify new extensions of gun laws, they are rarely brought into the debate as a source of potential harm. Most likely this is because gun control advocates are uncomfortable with discussions of crime, as most are also involved in the "rehabilitation not punishment" school of thought which is blamed (I believe rightly) for much of our crime problem. (See "Fair or Functional?".) In addition, mentioning criminals brings attention to the fact that laws probably do little to keep guns out of the hands of criminals, who routinely break the law. So, for the most part, discussion of the dangers of guns center on accidents, suicides, vigilantes, spooked home owners and the occasional psychotic shooting spree, while by far the largest source of gun violence is kept quietly out of the picture.

11. There are some who push the "treatment not prison" line, who argue it should be "a medical question", but as they are basically discussing substituting coercive therapy for prison, they are essentially making the same argument as those pushing the hardest of hard lines. Whether one is in prison or a closed treatment center does not make it any less of a loss of liberty, and so, though portrayed as incredibly liberal, the "treatment" crowd is really closer to the hard liners than any sort of decriminalization position.

12. I discussed this topic before in "Protean Terminology", "Semantic Games" , "The Most Misleading Word" and "Luxury and Necessity", but as it is the centerpiece of one of my arguments, I will obviously try to cover it again here in equal detail.

13. Some would argue the magic word "addiction" answers this, but that is nonsense. Addiction is not an issue for all drugs, at least not physical addiction, which is really the only meaningful term. "Mental addiction" means nothing more than you find something pleasing, and so actually argues for finding it valuable. Only physical addiction is a real issue, and even then it is just one more cost of using drugs. If you find drugs of no value, and the cost high, then going through withdrawal is just the cost of ending that expense. I have gone through opiate withdrawal several times thanks to a cowardly neurologist scared of federal audits, so I know how unpleasant it is, but I also can say it is not the absurd nightmare shown in films. And so can millions of patients who were once on opiate painkillers and discontinued them when their condition changed. If all of us could do it, so can most users. What keeps users on drugs is not so much physical addiction as a desire to use the drug (for many reasons - physical, social, emotional), but it is in short,t hat they value the drug. We may call it wrong, but the fact is, they find more value in using it than not using it. Something the "no benefit" argument denies.

14. I discussed this in detail in "The Inherent Disappointment of Authoritarianism", "The Right Way" and "Absolute Values". In addition "The Case for Small Government" looks at similar issues, though in less depth. For that matter, I made an argument similar to this one in my post "Addicts?". I also addressed one specific application in "Who Is Safer?", "Worker Safety", "Oven Mitts and Safety Regulation".

15. I am not arguing for uncontrolled content on public airwaves or no control over what is taught in public schools. Actually, my argument is that the problem is making airwaves and schools public, which makes them a battleground for pressure group warfare. If schools were private, then we could choose to pay those with whom we approved and ignore the rest. (See "Asking the Wrong Question".) Of course, privately owned airwaves present another problem, but as we have seen over the years, boycotts and other pressure really does work, so even a fully private broadcast channel is unlikely to broadcast unscrambled pornography, as advertising for porn is less lucrative than for wider audiences. (Compare Vivid Video, Pixar and Disney's bottom lines if you doubt this.) But that is an argument for another post. (I will also have to mention, at least in passing, the modern tendency to ask the state to do what parents are supposed to -- such as monitor what our kids watch, or turn off the TV -- a problem sadly common even among those on the right. And, before anyone make the usual strawman argument, I AM a parent, with a young child, and a full time job, and I am even a single parent, so I know exactly what is out there and "how hard it is". So spare me the "you don't understand" arguments because I am a man. I am the primary caretaker for my son, so I know better than many making such arguments who have spouses to help and jobs outside of the home to give them time away from their kids. Until he went to school, I was with my son 24 hours a day, and now I see him off to school and greet him when he comes home, so I know very well what it is like.)

16. See "Res Ipsa Loquitur". It amazes me how often I hear that a problem has a "clear" solution, when discussing something that has been the subject of years of debate. If the answer were clear, we would not be arguing. Similarly, what is traditional, what is an acceptable limit to government and so on is clearly not well settled, anyone who has listened to any political debate must know that. Any "obvious" answer is almost certainly only "obvious" to a limited constituency, and will disappoint others as much as a more radical solution would those proposing the "obvious" answer.

17. Some may disagree with my description of the liability law in the asbestos and cigarette cases, but the truth is, the proximate cause in the wartime asbestos cases, and even many after, was almost always the immune government, so if nothing else, the law was quietly disregarded in allowing suit against the manufacturers. For more discussion of liability law see "Still More on Liability Law", "Liability Law and Cost-Benefit Analysis", "Victim as Judge" and "The "Right To Sue" As Our Only Right".

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POSTSCRIPT

As I was critical of pragmatists in this essay, I thought I should include some links to my specific arguments against modern political pragmatism as a philosophy. Those curious about my thoughts should read "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact".

POSTSCRIPT II

Before anyone casts me as a proponent of drugs or prostitution or guns or whatever, allow me to make something clear. My position is simply this, the government is a tool of limited utility. Unlike the liberal (and unfortunately often conservative) view of the state as a panacea or Swiss Army knife, I view the government as a tool intended to prevent others from violating my rights. (And also for the settling of disputes over contracts and in torts.)  Other than that, problems need to be resolved through other avenues, such as the pressure society can place on individuals. This worked for centuries for any number of issues, and even works today for some. However, whenever I propose limiting the state I am accuse of proposing absolute license. Which is absurd, as it seems to suggest the state is the only way we can accomplish anything. Which is a strange position for supposed conservatives, who promote families making decisions and the market controlling the economy. If private solutions work there, why not for other issues? (See "Bar Fights, Riots and Drug Markets - The Limits of Law", "The Written Law","Government Versus Culture - A Forgotten Distinction", "Shame and Understanding","Volunteer Fireman, Barn Raisings and Government", "Collective Action and Government" and ""...Then Who Would Do it?"".)

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