A member gave voice to the way I used to think of it, until about 15 years ago:
In a civilized society, the use of force is banned except in emergency self-defense. In other words, gun ownership requires justification. Actions that do not involve force, such as crossing the border or using drugs, do not need justification, but acquiring a weapon does. One needs a reason to seek the means of killing people. And there is a justification: self-defense.
But one can’t say, “I just want to amass weapons and it’s none of anyone’s business.”
Then I came to view it more procedurally, so that I now think the issue is one of preventive vs. proper law.
Here’s the procedural issue. Congress or regulatory agencies should not be debating over and making lists of controlled vs. uncontrolled substances and objects. Not even for bioweapons. That is not the way to write law. Every time a new substance is synthesized, should its inventor have to get clearance from every state and the federal government?
Rather, it is illegal to injure someone or damage his property. And it is illegal to threaten damage, i.e., to give any man objective reason to fear that damage may be coming to him.
The burden of proof is on the person claiming that someone’s purchases and/or activities pose an objective threat. But all of the cases people are worried about meet that test. E.g., some random citizen wants to store dynamite in his basement (which adjoins yours), someone buys a bioweapon, an 18-year-old boy buys an AR-15 and a lot of ammo for it. Those things would scare anyone. And the police can intervene without there being some law against those concretes.
The principle I’ve come to accept is that you don’t illegalize objects, you illegalize acts.
If I walk a rabid pit-bull on a thin leash on the city sidewalk, I’m properly going to be stopped by the police (if it comes to their attention). But to get this result, you don’t need laws against walking rabid pit bulls or regulations relating the weight of the dog walked to the strength of the leash used, you just have law about being responsible for harm caused by an animal you own.
The only counter-argument that I can think of is the idea that we can prevent crimes or prevent mass killings by outlawing certain objects. Specifically, that argument would be: even if the police would act when they saw what was happening, that’s too little too late: let’s stop these weapons from ever getting into the hands of a potential spree killer.
My answer is two-fold:
- At what cost? Minimizing crime, even massacres like the Uvalde shooting, is not the most important thing to consider. Preventing dictatorship is far more important. So is preventing civil war/anarchy. But accepting the principle of preventive law leads toward dictatorship. Having government boards to determine which new invention belongs on “the list” serves as the entering wedge for an ever-growing, ever-more-stultifying bureaucracy.
- It doesn’t work. Assault-weapon prohibition will have the same failure as alcohol and drug Prohibition.
One consequence of all these Prohibitions is the funding of criminals; they get to make huge profits by supplying the banned substance.
Here’s a novel suggestion. Assume that a certain object really shouldn’t be sold to a certain kind of buyer. E.g., assume that the regulations you want to write would have illegalized selling the AR-15 used in Uvalde to the shooter, Ramos. Assume that the wrongness of this 18-year-old boy getting such a weapon is obvious. Okay, then the parents could sue the gun dealer who sold it to Ramos.
Don’t illegalize the object. Don’t even illegalize the sale of the gun to a kid. Just let the seller know that he will be held liable for any wrongful use of the weapon.
That arrangement enlists the seller’s mind on the side of man’s well-being.
P.S. Subsequent discussion in the HBL Members Forum made me realize that my wording of the proposal left it open to imposing “strict liability.” I should have said: “Just let the seller know that he will be held liable for any wrongful use of the weapon, provided it is shown in court that he was negligent to have made that sale.
