In a letter addressed to J B Schweizer published in Der Social-Demokrat, February 1865, Karl Marx criticized Pierre-Joseph Proudhon’s famous slogan (from What is Property?): “Property is theft!” Since theft as a forcible violation of property presupposes the existence of property, which Marx assumes is a category of law, then the anarchist’s slogan is self-refuting. How can the capitalist steal what is lawfully his? This criticism points to the importance of grasping what the criminal represents, namely, to lean on Richard Quinney’s first proposition in his social reality of crime thesis, “crime is a definition of human conduct created by authorized agents in a politically organized society.” In other words, without law there is no crime. And where there is no crime, there is no criminal.
For many of you this is obvious. But for many others it is not. The gun debate has resurrected some old arguments and I once again feel called upon to suit up and slay them. One of those arguments is commonly sloganeered as such: “If guns are outlawed then only outlaws will have guns.” It’s an obvious tautology. Take “guns” off of the bumpersticker and stand any thing in its stead. Try “drugs.” See the problem? It’s clever wordplay perhaps, but not an argument. Another argument is that restricting guns will not stop criminals from breaking the law; therefore, restricting guns is a useless exercise. This argument is often joined by the slogan, the implication being that gun laws will only harm who would otherwise be law-abiding gun owners. The claim the argument is making is more than tautological, but is nonetheless wrong.
The argument that laws are useless because criminals break them forgets of what Marx is reminding Schweizer, namely that what makes criminals is criminal law. The existence of crime presupposes laws criminalizing behaviors and sometimes the identities or statuses. Moreover, the existence of a criminal presupposes an adjudicative process by which that definition becomes formally applied to a person accused of perpetrating the targeted behavior or being of some such thing or another. Again, if there were no laws, then there would be neither crime nor criminal. This is not to say that there are no things that should be criminalized (polluting rivers comes to mind). Rather, it’s to simply point out that until behaviors or identities are criminalized, those who act in those ways or who are this things cannot be criminals. This is true by definition.
Because there are people who break a law criminalizing murder, should we have no laws against unjustified killing? Remember, not all killing is unjustified. We may say that murder is “the unlawful taking of a life,” but what this means is that the killing was not justified or is not excused in light of the law. Do laws against those behaviors the law defines as criminal stop those behaviors? Not always. But sometimes. Deterring the behavior we criminalize is part of justification for doing so. Would I kill a person if it weren’t illegal? Only for the same reasons I would kill a person with the law the way it is presently (self-defense, defense of others who cannot defend themselves, overthrow of tyranny). But I’m confident that there are people who would see the absence of law against killing as a license to kill somebody whom they otherwise would not with a law in place.
Furthermore, we have laws not only because we want to reduce the wrongful behaviors the law defines as criminal but because we want to signal their wrongfulness. Here we confront the moral question. Not all law morality finds its way into law. And not all law is rooted in morality. Indeed, some laws transgress moral rules, such as those that segregate public facilities on the basis of race. It follows that we may oppose laws because we believe they are bad laws, not because they are ineffective. I am sure you have heard people argue that we should end drug prohibition because it doesn’t work or because it’s counterproductive (in generating other behavior defined as criminal by other laws and even more of the undesired behavior itself). We often hear this argument applied to the failures of alcohol prohibition (often not carried over to the case of other drugs). But that’s not the reason I oppose drug laws. I oppose drug laws because I don’t believe that it’s the government’s place to tell a person whether they can alter their conscious states or blunt their emotions.
I oppose laws against homosexuality for the same reason: it’s not the government’s place to tell people with whom they may have consensual sex. However, I can assure you that there were a lot of gay men who endured heterosexual appearance and relations because homosexuality was illegal. And, yes, laws against homosexuality drive homosexual behavior underground. But, again, that’s not why it was a bad law. It was bad law because it violates bodily autonomy and personal sovereignty. These are fundamental rights that lie beyond law. To be sure, we may need to prohibit state actors from passing laws that violate these rights. This is why our rights are recognized in bills of them—not because the state gives us our rights, but because we demand in writing assurance that the state recognizes them. Nobody gave women the right to vote; men in power stopped denying women an effective voice in politics via the ballot box. Etcetera.
It will not do as a counterargument against those advocating for stricter gun laws to say that laws are of no purpose because some people choose or are compelled to break them. Such defeatism applies to all law (and, remember, without law there can be no punishment). Moreover, strict gun laws would very likely reduce gun death and injury, just as taking cars off the streets would reduce traffic accidents. There is a deeper issue here: the matter of rights. A successful defense of the freedom to own firearms must proceed on the basis of showing that there is a right or rights gun possession secures, i.e., that gun possession affects rights already recognized in foundational law.
What are these foundational rights? Life and liberty. Like locks on doors and alarm systems, firearms are tools in the defense of these rights. How can I effect my right to life, for example, if access to the means to this end is prohibited or sharply constrained? If an intruder enters my home, I must be able to defend myself and my family from possible harm. What role should the government play in the type of firearm I use to effect that right? A firearm is, after all, a tool. I have no objection to registering weapons and showing authorities I know how to use them. But to deny me access to the tool I believe appropriate for the task must lie beyond the authority of the government of a free people. These rights must be reserved for the people. The Second Amendment was specific in guaranteeing the people the right to keep and bear arms for the defense of a free state because it was assumed that people had a natural right to possess arms for defense of person and home. This was assumed in English common law.
The question, then, is whether it is wrong for the people to possess the means to successfully effect their rights. Only under tyrannical government is the defense of one’s rights wrong—and this is because tyranny is wrong. This question does not depend on whether the inhabitants of impoverished inner-city zones murder each other with guns on a daily basis. Nor does this question depend on whether a mentally-deranged teenager walks into a grocery store and shoots a dozen people. We don’t prohibit the possession of trucks because a black nationalist drives his through a Christmas parade in a small city in Wisconsin. We hold him accountable for his actions and inquire into what caused him to act in this way. The truck was only a means to an end. There were many people driving trucks in Waukesha that day (many of them gun owners). A truck did not murder Dancing Grannies. Darrell Brooks did. What happened in Salvador Ramos’ life that made him a mass murderer? Talk about that.
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A quick empirical note regarding a bad cartoon. For most of the period of video games with simulated violence, gun homicides have sharply declined over the period before their appearance. This is also true for simulated violence in movies, which has, over the last several decades, become more extreme and graphic. Gun homicide has only very recently started rising again, and this is mostly in areas dominated by gangs where progressive depolicing policy has compromised public safety. Video games are not a cause of mass shootings, which remain a small proportion of homicide deaths. Some mass shooters also enjoy playing video games.
freedom and reason 