Thursday, June 18, 2015

Common Sense, Guns and Regulations

I have a feeling this one is going to get me a few arguments, as the conclusions I draw will be in part acceptable, and in part unacceptable, to those reading it. And, more than that, my efforts to show how "common sense" is a worthless standard -- since were it truly "common" it would not need to be written into law -- tend to fall on deaf ears. Still, I shall try to make my case once more*.

When it comes to gun laws, it seems even many who generally oppose restrictions on gun ownership are taken in by compromise measures, often sold as "common sense restrictions." The most notable example being the NRA eventually giving in on background checks, and arguing only for instant checks rather than a waiting period**. I understand the motive there, the idea that some sort of check was inevitable and so they would accept the least onerous version, but it still meant that the group most vocal in opposition to restrictions had suddenly given its approval to a nationwide system of background checks, with all that implies.

Nor is that the only such compromise with gun control advocates on supposed common sense measures. For example, many supposed conservatives have accepted waiting periods, restrictions on monthly purchases,limits on the number of guns owned and so on. And taken in isolation, in the context of everyday ordinary life, any one of these arguments may sound sensible. After all, why would someone need to buy more than one gun a month? Or own more than a half dozen guns? Why would you not be able to wait a week?

The problem is that rules are absolute, one size fits all, and, while "common sense" may be perfectly adequate for 95% of life, in that other 5%, the fact that there is an absolute rule, allowing no exceptions, can make things very uncomfortable. For example, the argument who needs more than 5 guns suddenly rings hollow when there is a serial rapist in your town and you have five daughters and a wife. As does the argument that no one needs to buy more than one gun a month (unless you want to decide which child you like best). The same for waiting periods, as the rapist doesn't have to wait a week before attacking.

Now, some will say "but how often does that happen?" And they are right, these are unusual, rare cases. That is precisely why these common sense restrictions can often gain the force of law, because the exceptions are unusual. However, when it is you, and that unusual exception comes up, it can be very costly.

Of course, the other side of the argument is also never mentioned, that, no matter how rare the costs of the laws, they might be justified if the laws provide sufficient benefit. So, just how beneficial are these laws?

Well, on a practical, immediate level, it seems hard to claim much benefit. The cities with the most harsh gun laws (Washington DC, New York City, Baltimore, etc) also seem to lead the nation in crimes of violence, especially those using guns. It is tempting to argue that by disarming the populace, the laws give a tremendous advantage to those criminals who are armed, making gun crime more frequent rather than less, but, of course, finding evidence for that position is difficult. Still, the fact remains, strict gun laws seem to have little benefit in terms of crime numbers.

And logically one must ask how well the laws would protect against the most commonly mentioned ills. Criminals, for example, most often obtain guns through illicit means, which makes all of these laws irrelevant, not to mention that, being criminals, they are hardly scared of criminal penalties. And if they are willing to risk life in jail for murder, then what is another few years -- if that -- for gun possession?

Then there are the other limits, which, even if criminals bought guns legally, seem to be pointless. Most criminals, with a few exceptions, rarely use more than one gun, making limits on buying irrelevant. Similarly, criminals are not on a schedule, and so, though inconvenient, a waiting period would mean nothing to them.

Moving outside of traditional criminals, how well do the gun laws prevent the other supposed ills? For example, suicides, or crimes of passion?

Obviously, limits on numbers of guns and purchases will not make much difference for a suicide, as suicide never takes more than a single gun. Nor would it matter for the run of the mill crime of passion, where the victims are usually singular, or, at most a handful of household members. I suppose, in those very rare*** cases where we face a Columbine type event, the limits would have some effect, though, since these events are often planned for some time, the monthly purchase limit would matter little. And, with a little ingenuity, especially in the case of events with more than one actor, the total purchase limit too can be foiled easily enough.

The only case one could make would be that the waiting period might provide some benefit, as those who did not yet own guns would need to wait and may get over the sadness or anger that inspired them. But, even if we concede that point, there are two problems with that argument. First, that it assumes one does not already own a gun. Second, that the individual, once calmed down will not buy the gun, or, if they do will never be upset again. And that seems unlikely. Someone who is prone to suicidal thoughts, or fits of rage, is probably going to have those feelings more than once, so, if they attempt to buy a gun in a fit of passion or despair, and calm down before it is obtained, it is still quite probable that, having obtained the gun, they will sooner or later experience the same feelings, making the waiting period, at best, a means of delaying things.

All of which suggests to me that there is quite marginal immediate benefit to these laws, while there exists the probability of cases where very real harm comes about as the result of such laws. But, that is not the whole story.  For by implementing such laws, not only do we bring about the obvious harm, but we also create some precedents which are quite dangerous for society as a whole.

First, by creating the legal principle that objects, in themselves, can create crimes -- as is the basic premise of the idea that guns are so inherently dangerous that they must be regulated -- we also endorse two related premises. The first premise being that those who commit such crimes might not be to blame. Granted, our law has not yet gone so far with guns, but we have in the realm of drugs, using the same logic to argue that, in effect, "the devil made them do it", with drug addicts guilty of petty crime blaming it entirely on the drugs and often being "sentenced" to treatment rather than jail, completely ignoring that countless people have used drugs and never committed other crimes****. It also creates, as its second premise, an environment where we believe that, should we simply ban or regulate the right things, we can create utopia. Besides feeding into the "government as Swiss Army knife" philosophy, that laws can solve all problems, it also tends to distract us from truly effective solutions, such as meaningful periods of incarceration, societal pressure to avoid crime and so on, and instead tends to focus us on attacking "issues", banning things rather than trying to stop criminals.

The other problem is, by turning our attention to the inanimate object supposedly causing these problems, we tend to overlook the real causes, and neglect taking simple and obvious steps to resolve them. For instance, many cities with stringent gun control laws have more gun violence than comparable cities with less rigid restrictions. Some take this to mean that gun control in itself -- perhaps by disarming the public -- contributes to crime. I am not going to go that far, though there is likely some truth in it, but it certainly is not the entire picture. On the other hand, gun control advocates take this continued gun violence as evidence they have not gone far enough, or that the lax laws of neighboring states have allowed gun violence to bleed over into their city. What they never consider is that, as cities with rigid gun control also tend to adopt other rather liberal approaches to criminal justice, that perhaps the increase in gun violence, and crime in general, may have something to do with lax sentencing, comfortable prisons, lack of stigma attached to criminal charges and similar situations. By convincing themselves guns are the sole -- or at least most significant -- cause of violent crime, they completely ignore the possibility of other causes. (And, needless to say, certainly would never consider the previously mentioned arguments that gun control itself may have unexpected consequences.)

Given all of this, I would argue that the laws themselves, far from doing an adequate job preventing crime or accidental harm*****, instead at best leave things the same as they would be without such laws, and more likely create an environment where more harm is done rather than less. Given that they are without clear benefit, and that even the most "common sense" measures can create situations that may be harmful in some circumstances, there seems to be little justification for these laws, and certainly none for nominal opponents to concede the benefit of these supposed "moderate" common sense measures.

As I feel this principle applies to many more types of regulation than simple gun laws, I shall try to make my case in more general terms. A measure may seem a common sense restriction, may seem "harmless enough", may prevent activities that seem unimportant or irrelevant, but only because you either are not imagining all possible circumstances, or else because you are forgetting there are others who value things differently than you do (cf "De Gustibus Non Disputandum Est", "For Your Own Good -- The Problem with Subjective Rights" and "The Case for Small Government"). As I wrote before, there are many who place no value on religion, and so would see no harm in banning any given faith. It does not matter to them. However, that does not make such laws valid, or common sense, it simply points out there are different ways of valuing things.

And that is the failure of most regulation. It is, inevitably, a one size fits all answer, and the world does not work well with such rules. When you place blanket restrictions, or mandate uniform behavior, inevitably there are those who are inconvenienced, upset or outright mortified by your rules. In some cases, you may even put them at risk of harm or death through failing to consider certain possibilities. Of course, that does not, in itself, make such rules invalid. Our criminal laws likely go against the wishes of some people as well, but the protection of rights is essential to social existence, and thus outweighs my desire to throttle my neighbor or steal from my boss. (See "A Rational Approach to Punishment", "Fair or Functional?", "Killing and the State" and "The Wages of Sin" for an explanation of why I believe it actually is rational even for those who do have such desires.) As this should show, sometimes we must impose a one size fits all regulation as the benefit far outweighs the harm, as in the case of our criminal laws. But, for the most part, this is not the case of most of our regulation, which, at the cost of much lost productivity, much stifled satisfaction, often, at best, makes some people feel good about making others do the right thing.

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* For previous arguments about common sense, see "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 Revisited, 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", "Questions of Law and Questions of Fact", "The Rarity of 'Common Sense'", "Common Sense,Philosopher Kings, Arbitrary Law and Dictatorship" and "The Problem with Common Sense Solutions".

** Some may wonder why I oppose the NRA on this, and my opposition is twofold. First, that the NRA accepted not only background checks, but national background checks, and the implication that the federal government had an interest in firearm regulation, which seems to gut the second amendment pretty thoroughly, as well as invalidating any state constitutional protections. Second, because even something as seemingly unintrusive and modest as a background check implies the government has a right to regulate arms ownership, in direct contradiction to the second amendment. I know there are many who think background checks are common sense and so on, but as I shall show, a lot of common sense is such only until circumstances make it no longer so. Unfortunately, once enshrined in law, there is no longer the option of adjusting to circumstances.

*** It is funny gun control advocates often dismiss self defense scenarios as too rare to consider, yet they use the much, much more rare events of Columbine or so-called "family destroyers" who murder their entire families, making it sound as if they are common but using a gun against a threatening ex is a rarity. It is not exactly an honest argument.

**** It is absurd to assume drugs somehow cause crimes. They no more cause crimes than drinking, gambling, a fondness for women or expensive cars or fancy clothes. All of the above can involve uncontrolled spending and considerable debt, and people have used all of the above -- and more -- as excuses for their crimes. The truth is, many more people engage in one or more of these practices, including drug use, without feeling the need to commit crimes. Drugs, like drinking, gambling, or anything else, may provide those predisposed to criminality with a convenient excuse, but it is not one we should accept, lest we create a situation where drug use becomes an effective "get out of jail free" card. (See "The Drug Addiction Excuse".)

***** I am ignoring one additional issue. Once guns become objects of shame, something the law treats as inherently suspect and harmful, many people become uncomfortable having anything to do with guns. However, the problem this entails is that it makes people unfamiliar with gun handling and safety. In the past, when guns were more commonly owned and not treated as suspect, more people handled them regularly and understood safe practices. With guns becoming less familiar to most people, the probability of an accident due to lack of familiarity increases.

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NOTE: I began this essay quite some time ago, and picked it up only recently to complete. I did read what I had written earlier several times, and did my best to make it flow as if written in a single sitting, but I always worry when resuming writing after such a lengthy gap that either I have forgotten my original point, or perhaps simply overlooked some significant argument I intended to make but since forgot, or, at best, that the style simply fails to flow and it is obvious to all that there is a break somewhere in the middle of the work. So, if any of these apply, I do apologize.

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