Tuesday, July 15, 2008

Explaining the Libertarian mindset to Liberals: the question of prior restraint

For some masochistic reason that escapes me, over at Delawareliberal both dv (sorry, can't call you Delaware's Hottest Blogger unless you actually win the competition) and jason have developed this penchant for baiting 2nd Amendment advocates and then bemoaning their appearance when they show up to argue.

liberalgeek appears to be reading these threads with a sort of accident-I-can't-look-away mentality, throwing in a comment or two from time to time, but mostly staying out of the crossfire (poor choice of words? go here and here; I think not)

But liberalgeek did say, in one comment lost among the chaos a critical thing that deserves more attention, as it is perhaps the best single-sentence definition of the difference between a Liberal and a Libertarian that I have ever read. (Geek: that's truly intended as a compliment.)

He said:

I am in favor of sensible restrictions on things that can be easily misused.

I want to unpack that a little bit, with the understanding that--as it appeared first in a gun-control thread--I am going to have to deal with firearms, at least a bit, but that this is NOT a post about gun rights.

[Geek: I am not consciously attempting to set up straw men based on your sentence; so please feel free to let me know if I have distorted your intentions.]

The two key elements of the sentence are "sensible restrictions" and "things that can be easily misused."

Sensible restrictions

Let's start with the question of who determines what's a sensible restriction? The courts? Local, state, or Federal government? Parents? Special interest lobbying groups? This is, as I think you are well aware, a devil-in-the-details sort of issue.

Some initial observations:

1. The higher the level of government imposing the restriction on any item, the more sweeping the restriction will be, and the less ability there will be for local conditions to moderate that restriction. It is a direct corollary of this that if the Federal government imposes a restriction for one purpose, it will soon find other purposes for which to use that restriction, purposes that will generally be to the detriment of the civil rights of individual American citizens. I give two examples (sorry again for lack of sophisticated links this week; still chillin' at the beach):

We take our shoes off in the security line at airports because of the guy known as the shoe bomber (was his name Reid?) caught back in what, 2001 or 2002. Federal agents and anybody who passed undergraduate chemistry knows that both the shoe bomb and the 3-ounce-shampoo bomb are fantasies; you can't actually pull it off outside the confines of 24. The TSA has essentially admitted that: dig deeply into its website and concurrent FBI websites and you will discover that you now take your shoes off at airports in an effort to curtail smuggling that has absolutely nothing to do with your safety on the plane.

Second example (a sort of negative reverse example): no sooner had the ink dried on the original Patriot Act in 2002 that the FBI was already using it in Colorado to infiltrate legitimate anti-war protest groups that (when compelled to release documents under FOIA) the Feds admitted that they had always known had absolutely no connections with Al Qaeda or any form of terrorism foreign or domestic.

So my first point: sweeping Federal restrictions tend to be far more sweeping than sensible, which is the primary reason, by the way, that millions of Americans suffer chronic pain and can't use medical marijuana, that it takes roughly 3 times as long to get new medicines approved for use in this country as it does in Europe, that gays are denied basic civil rights in terms of partnership benefits, and that threats are the order of the day when the Feds impose such restrictions (55-mile-speed limit and drinking age restrictions vs loss of Federal highway funds; Real ID vs loss of the right of your citizens to get on an airplane.)

[As an aside: I'd argue that this was precisely why the 2nd Amendment is second. The first two amendments were originally intended by James Madison as inserts into the Constitution in Article 1 (the Congress), and as such represented things that Congress was not supposed to be able to legislate. The right to bear arms, however, required a philosophical statement ahead of the prohibition in infringement, so it was placed in a separate amendment. Thus, in the original Constitution, the prohibition on placing restrictions on gun ownership was placed on the Federal government alone. However, the 14th Amendment, in reversing the basic roles of the Federal and State governments as protectors of the civil liberties of American citizens, left the 2nd Amendment out there in limbo. Supreme Court decisions regarding the First, Fourth, and Fifth Amendments in the 1930s created the precedent that the Bill of Rights also bound State governments, but the justices clearly were not considering the implications of those decisions on the 2nd Amendment.]

2. Bringing sensible down to the state or local level of government doesn't make such restrictions any more sensible, it simply makes them more variable. We in Delaware, for example, have just decided that it is sensible to enact legislation protecting patrons of the Bottle & Cork from copycat bands, but that it is not sensible to have either open government or protection from eminent domain abuse. Senator Margaret Rose Henry considers it sensible to require individuals old enough to have driver's licenses to be compelled to wear bicycle helmets on a twelve-speed.

Most States now consider it sensible to detail police officers away from working on solving or prevent crimes with victims in order to enforce motorcycle helmet laws and seatbelt laws.

In the 1970s I went to college in southern North Carolina, and actually worked in South Carolina. I carried a handgun in my truck. (I may have this next part reversed, but it doesn't make any difference to the story.) In NC if you carried a pistol in your truck it had to be in the glove compartment; in SC if you carried a pistol in your truck it had to be out on the seat in plain view. So, in theory, each time I crossed the NC/SC border I had to pull over, and either take the gun out or put the gun into my glove compartment. Makes a hell of a lot of sense, doesn't it?

In Georgia (as I found out two years ago when applying for a job) it is still considered sensible for public education officials to be able to strip search my child and to apply corporal punishment without any requirement for either pre- or post-event notification of the parents.

This sensible thing scares the hell out of me, because there is usually no way to quantify it, and because--however well-meaning the nannies are--they almost always want restrictions on citizens rather than government.

3. Sensible is usually a code-word not for a compromise or consensus reached after thoughtful public debate or the gathering and vetting of evidence. What sensible usually means is an ideological talking point buttressed with carefully cherry-picked evidence that is designed to play on emotion rather than logic. Liberals want sensible restrictions on gun ownership; conservatives want sensible restrictions on abortion; none of us really believes anybody on either side of these arguments is telling the truth (which saddens me immensely--and yes, geek, I believe you when you said you didn't favor general confiscation of firearms).

Things that can be easily misused

There's a slippery slope for you. Some day read a science fiction story from the late 1940s by Jack Williamson called "With Folded Hands," about the creation of a series of robots whose only mission was to protect human beings from harm.

The problem is that this category is basically a form of group punishment or group restraint. I remember being outraged in elementary school when somebody stole something and the teacher would say, "If the person who stole little Mary Sue's pencil doesn't admit to the crime, there will be no recess for the entire class for the rest of the week." This makes wonderful sense: one person has done something wrong, so we will remove rights and/or privileges from everybody.

Which is why I can't buy as much goddamn cold medicine as I want to.

Of course, the Liberal argument here is that we have to use public policy to protect the public from potential harm.

Unfortunately, this equates with taking away rights from those who have not done, or even contemplated doing, anything wrong rather than emphasizing the implementation of consequences for those who actually behave in a criminal manner.

It is really an issue of prior restraint--and this is the fundamental question upon which Liberals and Libertarians part company.

Liberalgeek would prefer, I infer, to live in a society wherein the government is the primary manager of risk and harm. He sees more advantages in the government being able to DO GOOD, by having the power to regulate firearms, fast cars, bad whiskey, ephedrine-laced Co-Tylenol, and consensual sex between teenagers.

I would prefer to live in a society wherein individuals are the primary managers of risk and harm, and the government is closely restricted in its ability to DO HARM by stepping on the rights of its citizens. I see more advantage in arresting and charging people for crimes they have actually committed than in making simple, everyday activities illegal on the grounds that they might conceivably hurt somebody someday.

I freely admit that I am willing to accept greater individual risk in a free society for myself and my family in exchange for greater individual freedom. Liberals would suggest that the object of society is greater individual security.

[Another long-winded aside: Dubya notwithstanding the Patriot Act could not have been passed in a society that did not already condone the War on Drugs which could not have existed without the National Security State necessary to maintain the Defense/Industrial complex to fight the Cold War. Demopublicans all enjoy using the power of government to impose the particular restrictions they think necessary on American citizens.]

The problem is that both of these arguments--this dynamic between security and liberty--not only have existed since the beginning of the American Republic, they have existed since the beginning of organized human societies.

And advocates of both positions have been like the Puritans and Pilgrims escaping religious persecution in Europe just so they could set it up in New England. [We have freedom of religion NOT because anybody was particularly open-minded, aside from Thomas Jefferson, in 1787, but because nobody really thought they could win and become the established church for the whole country, so their next fall back was religious plurality.]

Here's how this plays out with the gun rights argument (sans all the name-calling):

Advocates of sensible restrictions on gun ownership in America see firearms as mechanisms designed to kill and maim, with no real social value outside the possession of weapons by police and the armed forces. They point to all the societal harms (suicide rates, domestic violence, drug warfare, etc. etc.) created by firearms, and see few if any countervailing societal benefits from gun ownership. They believe themselves to be in the vanguard of progressive thought about establishing a society that moves beyond physical violence (risk being managed by the State), and that these sensible restrictions will do as stop-gaps until the maturity level of the rest of society catches up to their own perceptions of the correct way to run the country.

Radical supporters of 2nd Amendment rights are indeed clinging to tradition (and their guns) because they see infringements on gun ownership as definitive proof that Liberals wish to impose the complete Nanny State on them, and they see themselves slowly but surely losing ground in the protection of their individual rights.

Neither side can understand why its opponents cannot see simple logic.

This Libertarian (and here I certainly do not pretend to speak for a movement) sees guns and gun ownership as tools to be used or misused.

The States of Mississippi, Louisiana, Alabama, and Georgia legislated strict gun ownership laws (even gun confiscation) on free Blacks immediately after Reconstruction, leaving them defenseless in the face of KKK and other white violence.

The government of New York attempted to make gun ownership illegal for people renting rather than owning property in the 1820s at the behest of Hudson River landlords who were finding it difficult to collect extortionate rents.

The City of Oakland (in tandem with the FBI) tried to make it difficult if not impossible during the 1960s for adult African-American citizens to own firearms during one of the most racially oppressive police regimes in modern American history.

Not content with internment of Japanese-American citizens in World War Two, the Federal government and several States colluded to confiscate and destroy legally owned firearms from American citizens of German or Italian descent, many of whom had sons or daughters then serving in the US military.

In coal country Appalachia throughout the period 1880-1950 the coal companies lobbied hard for sensible gun ownership restrictions that would insure that their strike-breaking peace officers were the only people armed during labor disputes.

All of these restrictions were presented and approved as sensible restrictions on things that could be easily misused, but in reality served specific ideological ends that involving eliminating the rights of certain groups of American citizens.

So there are plenty of historical arguments that access to guns has been critical to maintaining the rights of American citizens throughout our nation's existence. So please, stop feeding me this line that guns are only devastating weapons of destruction. That sword cuts both ways. The absence of guns is also--sad to say, even in America--a potential pre-condition for exploitation, abuse, and tyranny.

I don't want to oversimplify this argument, and any essay as short (!) as this one always risks that.

But my point is this: if we are ever going to make any progress beyond jason calling people who support the Second Amendment retards while he's arguing that anybody who owns more than 20 guns must be selling them illegally, then here's what we have to do....

1) Admit that this is not an argument about guns, as much as it is an argument about how society should be managed.

2) Recognize that ultimate victory for either dynamic--public safety or individual liberty--would probably leave us with a society nobody here really wants despite their posturing. (OK, a few people on either side._

3) Stop throwing around all this high-sounding ideological moral crap and admit that we're talking about the plain old politics of compromise and arm-twisting on tough issues about which other American citizens whom we generally respect hold widely differing beliefs. (By the way, there goes that old our-diversity-is-our-strength bullshit.)


Mike W. said...

Excellent essay!

"taking away rights from those who have not done, or even contemplated doing, anything wrong rather than emphasizing the implementation of consequences for those who actually behave in a criminal manner.

It is really an issue of prior restraint--and this is the fundamental question upon which Liberals and Libertarians part company."

That pretty much sums it up for me. I understand that SOME prior restraints are going to be necessary, because 100% unrestricted access to guns cannot work. Certain people, by virtue of their prior actions, should be restricted.

I guess the reason why the pro-gun side does sometimes get testy is because all we want is to be left alone. Instead there's always someone pushing for yet another restriction on us because criminals won't behave. After a while it's hard not to come across as blunt and uncompromising. I think many of us would compromise if we were actually getting something in return.

Brian said...

[We have freedom of religion NOT because anybody was particularly open-minded, aside from Thomas Jefferson, in 1787, but because nobody really thought they could win and become the established church for the whole country, so their next fall back was religious plurality.]

Steve this is not entirely correct, and am surprised to see it in an otherwise exceptional article. We have freedom of religion as the becuase it was cvopied directly from William Penn's Pennsylvania Charter. This document gaurenteed the freedom of moral conscience and persuasion for all inhabitants of Penn's territory. It was our liberal, open minded and tolerant tradition. The Puritans and Pilgrims have nothing to do with that history which is unique to the Mid-Atlantic States where we had a preponderance of free holding Quaker farmers and merchants who were both shrewd enough to know that religous tolerance means good business, and that mutual friendship and freedom of moral conscience were exceptional gifts and natural rights. Jefferson endorsed this idea AFTER seeing how Philly was flourishing, reading William Penn and reading commentaries on Pennsylvania by Voltaire, and the idea of enlightened statecraft. A broad humanist education led Voltaire to sayPhiladelhpia was as if "the golden age had returned to earth..." And it is this kind of enlightened statecraft that we need now.

We also need to understand the idea of responsible citizenship in the context of the 2nd amendment for it to work. Jefferson's idea was that the people should be the militia, or the military of the nation; that free holding farmers make the best soliders is a classical idea, and as far as I can tell it works well. We have a substantially different situation as a result of industrialization where workers and not free holding independent farmers make up the bulk of the population....so how to create responsible citizenship in workers has been a problem since the Greeks tried it. Jefferson had something else in mind all together, his model for this came from the Roman Republic.

Steve Newton said...

Sorry, Brian--I don't buy either argument; Penn's influence on religious toleration outside (and sometimes even inside) PA is hugely overestimated, and everything from the Parson's Cause in Virginia to the established church in MA (until 1836!) to the sectarian backlashes in the aftermath of the Great Awakening--as well as the context of early debates in the Congress--suggest that religious pluralism was not adopted in the 1780s-1790s for the high-minded reasons you'd like to find.

As for the 2nd Amendment it is vitally important to understand that it was Madison not Jefferson involved in its drafting, and that Madison differed significantly on the concept of the people as the militia.

Anonymous said...

It really comes down to the classic American idea. I will govern myself; the government does not govern me.

The Bill of Rights does not give rights. It restricts the federal government from governing on those rights.

Nanny state liberals are constantly trying to tell me what I cannot do, I can’t drive without a seatbelt. I can't drive above a speed limit. The reason is for my safety. Please I will take care of my own safety. I will decide if it is a good idea to wear a seat belt or bike helmet. I will decide my safe speed. I do not want an accident or hurt anyone.

If humans are capable of running our own government and do not need a king to tell us what to do, then we are capable of making our own safety decisions. You can advocate for a position, like “buckle up” but do not mandate it. That is when the government gets tyrannical.

The anti smoking campaign is an example. Lots of social pressure and smoking has gone done, plus high taxes on cigarettes. Then not satisfied with their success they mandate that a private business cannot allow smoking in their premises. That is bad, the owner can make that decision not to make for him by faceless governors.

Another mistake is many folk seem to think that laws control behavior. They don’t. They punish behavior. Police are reactive to a crime. Those who are not inclined to rob, steal, rape and murder do not need a law. The law is give legal reason to punish who do those crimes.

So the law does not criminal behavior it just allows society to punish them. So a good way to judge a law is whether the law punishes good decent folk or the criminals. Gun control is all about control. The gun is the excuse.