According to H.L.A. Hart, law is a union of primary and secondary rules. A rule is a codified directive to someone. Primary rules are primary because they give directives directly to, or impose obligations directly on, those governed by the rule. Secondary rules are rules about the primary ones, specifying “the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart, Concept of Law, p. 94). Among the secondary rules is a “rule of recognition,” which specifies “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts” (Hart, Concept of Law, p. 94). Continue reading
Tag Archives: self-defense
Desert and Self-Defense
George Sher’s version of the expected-consequence account of desert says that properly understood and specified, we deserve the expected consequences of our actions. His version of retributivism says that wrongdoing involves the taking of more than one’s share of liberty, such that the wrongdoer deserves punishment by way of redressing the imbalance caused by that act. One thing that falls between the cracks of both accounts is an aggressor’s deserving the harmful consequences of a justified act of self-defense against his aggression.Continue reading
Crime and emergencies (part 2): reconciling self-defense and gun control
For obvious reasons, people are talking a lot about guns nowadays. I’m a big fan of gun control, and make no bones about being one. It’s always seemed to me that gun control follows from a commitment to the idea of government as having a legitimate monopoly on the use of force, and not being an anarchist, I endorse the relevant commitment. I’m also committed to a right of self-defense, which in my view entails a right to the most efficacious means of self-defense compatible with the government’s monopoly on the legitimate use of force. As far as life in the U.S. is concerned, as I see it, that entails a circumscribed (hence regulated) right to acquire firearms for purposes of self-defense. In other countries where guns are themselves scarce, I would have no objection to an outright ban on the acquisition of firearms by private citizens. But guns aren’t scarce in the United States, and there is no justified or realistic way of banning them outright. (For a discussion of the perils and problematics of weapons control, check out my inadvertently timely Reason Papers piece, “The Contested Legacies of Waco.” For an excellent discussion of the empirical issues regarding gun control, see James Jacobs, Can Gun Control Work?)
In a democracy, a political position is only as strong as the weakest link in the constituency that supports it. Put another way, a political position is only as strong as its supporters’ ability to deal with the strongest objection to it. One of the reasons why gun control has done so poorly in the U.S. (in the sense of not commanding adequate political support) is undoubtedly that the NRA has too much power. But another reason is the sheer cluelessness of so many of those who defend it.
The cluelessness concerns a relatively obvious question. Suppose you believe in the justifiability of gun control. Still, people have a right to self-defense. If there are lots of guns out there, and lots of criminals with the desire to use them against the innocent, how do we ensure that our justifiable desire to regulate the sale and acquisition of firearms doesn’t subvert the equally justifiable desire to sell or acquire them in the exercise of a right of self-defense? That’s a problem that requires a solution. It’s not a rhetorical question that one can evade or dismiss as having been manufactured by the NRA or Smith & Wesson.
I realize that the desire for self-defense can be abused or exaggerated via grandiose superhero fantasies, errors of probabilistic reasoning, confirmation bias, hasty generalization and so on, but so can the desire for regulation. When all is said and done, it is just patently obvious that if we have a right of self-defense, we need access to the means of its exercise, and if criminals have firearms, non-criminals need (regulated) access to them as well in order to defend themselves against armed criminals. But no. Defenders of gun control have decided that what we’re to do when faced with armed and dangerous criminals is to reach for our phones and call 911. Presumably, the criminals will give us the time to do this, and all will go well as we wait for the police to arrive. If we cannot manage to call 911, well then, we’re out of luck. We must acquiesce in whatever the criminals want and let them have their way. Even Hobbes doesn’t go as far as that in Leviathan, but that hasn’t stopped defenders of gun control from recommending subservience to the commands of those who wield force against the rest of us. The resort to quixotic, primitive denial of obvious facts about crime has, in certain quarters, become the epitome of “liberal” sophistication.
Consider a column in this morning’s New York Times by Gail Collins, easily the most clueless of the Times’s columnists. I happen to agree with much of what she says in defense of gun control. Then, predictably, we reach this set of claims:
And while we have many, many, many things to worry about these days, the prospect of an armed stranger breaking through the front door and murdering the family is not high on the list. Unless the intruder was actually a former abusive spouse or boyfriend, in which case a background check would have been extremely helpful in keeping him unarmed.
Really? How about an armed stranger breaking in through the back door? Or a window? Doesn’t it matter where one lives? Maybe Gail Collins feels safe in her neighborhood, but does that mean that everyone should feel equally safe in theirs?
As it happens, an intruder tried to break into my apartment this past Sunday night or Monday morning through the living room window. I was asleep in my unlocked bedroom a few yards away. He or they didn’t manage to break all the way in, and didn’t ever get inside; they just managed to cut the screen of the window with a box cutter, and then to discover that it probably wasn’t worth breaking into this particular apartment, possibly because there was so little in it worth stealing. That didn’t stop them (I’m assuming it was the same people) from successfully breaking into a number of other dwellings in my neighborhood that same night.
Since the local police blotter hasn’t yet come out, I don’t know whether the intruders in question were armed, and don’t know whether anyone managed to confront them or get injured in the process. But people are regularly robbed in my neighborhood, and occasionally those robberies go wrong; when they do, the victims are sometimes shot. Rapes take place here with alarming frequency. The cars in the parking lot of my apartment complex have regularly been broken into during the year that I’ve lived here. On a more trivial but rather annoying note, my New York Times (like the Luddite I am, I still get the paper version) is stolen at least once every two weeks. Lesson: crime is real.
Though this Monday’s incident was my first break in in this particular neighborhood, it’s not the first time I’ve had to deal with a break-in. It’s the third. On one occasion, someone tried to break into my bedroom via the window as I was sleeping: the window in question was maybe a yard away from me, and it was unnerving to be awakened by the sound of someone forcing the window so close to my ear. I wasn’t armed, but I had no choice but to confront him. There really wasn’t time to find the phone and call the police. I guess I was threatening enough to scare him away—I must have been reading Nietzsche or Schopenhauer or something–but I’d rather have been armed. On another occasion, I happened on someone in the process of breaking into my car (luckily, he was too busy trying to steal it to notice me). In that case, I was able to call the police, and they happened to get there in less than a minute, but as they apprehended the suspect, he made it clear to everyone that he meant me harm beyond the theft of my car (he came out and said so). I’ve never been carjacked myself, but I’ve seen a carjacking take place at a hundred yards’ distance, and a good friend of mine has been carjacked. A distant friend of mine was put in the hospital after being robbed, and the spouse of someone I know was murdered in a robbery. (P.S., on a different note: I’ve also faced a menacing individual wielding a gun in a park–to this day I’m not sure whether the gun was real or fake–so I know what it’s like to be on the terror-laden receiving end of what seemed like imminent gun violence. Having a gun of my own would not have helped in that instance, and using one would probably have led to a blood bath.)
None of this (I think) is particularly remarkable as far as suburban New Jersey experience is concerned; I don’t think I’m some kind of wild statistical crime-experience outlier. What I don’t understand is why such experiences are so distant from people like Gail Collins as to be unreal to them. But alas, they’re not unreal. They happen, and they have to figure into the discussion about gun control with a degree of respect for the victims that liberals like Gail Collins conspicuously seem to lack.
Here is another example, also from The New York Times, admittedly at a higher level of sophistication and respect for facts than Collins’s column. It’s by Gary Gutting, a professor of philosophy at Notre Dame, and (at least indirectly) an erstwhile graduate school mentor of mine.
Our discussions typically start from the right to own a gun, go on to ask how, if at all, that right should be limited, and wind up with intractable disputes about the balance between the right and the harm that can come from exercising it. I suggest that we could make more progress if each of us asked a more direct and personal question: Should I own a gun?
A gun is a tool, and we choose tools based on their function. The primary function of a gun is to kill or injure people or animals. In the case of people, the only reason I might have to shoot them — or threaten to do so — is that they are immediately threatening serious harm. So a first question about owning a gun is whether I’m likely to be in a position to need one to protect human life. A closely related question is whether, if I were in such a position, the gun would be available and I would be able to use it effectively.
Unless you live in (or frequent) dangerous neighborhoods or have family or friends likely to threaten you, it’s very unlikely that you’ll need a gun for self-defense. Further, counterbalancing any such need is the fact that guns are dangerous. If I have one loaded and readily accessible in an emergency (and what good is it if I don’t?), then there’s a non-negligible chance that it will lead to great harm. A gun at hand can easily push a family quarrel, a wave of depression or a child’s curiosity in a fatal direction.
Gutting at least recognizes the possibility that those who live in dangerous neighborhoods may need a gun for self-defense. But he makes the point in passing, with grudging reluctance, and without feeling the need to ask some obvious questions about the implications of his own admission.
Gutting’s claim implies that if you do live in a “dangerous neighborhood” there is some likelihood that you might need a gun for self-defense (assuming that you get the training to use it, etc.) At least, it’s rational in some contexts to think you do. But what exactly is a “dangerous neighborhood”? A “dangerous neighborhood” is presumably where the armed criminals are. So where is that? And how does one figure it out?
One could look at published rates of crime or look at crime blotters. But crime rates change and crime blotters are statistically unreliable snapshots of reported crimes during a given week. (And reported crime is not crime.) Further, criminals are not universally stupid or lacking in means of transportation: they have an entrepreneurial attitude toward criminality. No entrepreneur worth her salt would open a small business based on the kind of information that determines conventional attitudes toward “dangerous” or “safe” neighborhoods. Decisions of that kind require refined and intensive local knowledge and a measure of sheer guesswork. They’re also highly fallible. Given that, putting aside obvious mistakes or errors of judgment, there is no way to get on some epistemic high horse and proclaim that one ought only to open a psychotherapy office in a “psychotherapy-heavy neighborhood,” or a restaurant in a “dining-out neighborhood,” or a grocery store in a “grocery neighborhood.” Judgments about where to open a business are highly tentative and fluid, mostly vindicated by the results of the experiment rather than by some antecedent facts obviously available to everyone at t.
The same is true of crime. There is no such thing as a neighborhood that is “dangerous” now and forever. Danger fluctuates. Criminals migrate. Yesterday’s dangerous neighborhood becomes safe. Yesterday’s safe neighborhood becomes dangerous. I am not sure where Gutting gets his armchair sociologist’s picture of “dangerous neighborhoods” sporting banners that say “Dangerous Neighborhood” above them. In my experience, such banners do not exist. If you want to insist on the concept of “dangerous neighborhood,” you’d have to say that the whole of the New York/New Jersey Metro Area is a “dangerous neighborhood.” I can’t think of any location in New Jersey that I would regard as somehow immune to criminal violence. If that’s so, Gutting’s “dangerous neighborhood” advice is a pious gun control vacuity. It gives no clear advice about where one can legitimately own a gun because it appeals to a concept that has no clear criteria of application.
I’ve visited neighborhoods in southwestern Vermont where people leave their doors unlocked at night or when they leave their homes because they regard themselves as living in “safe neighborhoods.” But their safe neighborhoods would become dangerous the moment it occurred to criminals that their inhabitants were complacent enough to regard their neighborhoods as “safe.” No one would be naïve enough to believe that Vermont is a crime-free zone. Crime takes place there. That it takes place more in some areas of the state than others doesn’t mean that those statistical distributions are facts of nature. They can change without warning. Most people would encourage people who don’t lock their doors to rethink their complacency. I’d do the same for those who think that guns are obviously superfluous in supposedly “safe” neighborhoods.
No neighborhood is so safe that you can, without further thought, leave yourself totally vulnerable to criminal depredation in one. Any neighborhood could be a dangerous one the day the right criminal shows up in it. So whether one “needs” a gun or not for self-defense is far more complicated a matter than Gutting admits. He himself piles up the complications for his view without seeing that they undercut the supposedly clear-cut claim he makes that most of us do not need guns.
Until defenders of gun control wise up and deal with the problem of crime as an unpredictable emergency that could strike anyone, gun control has no chance of success in this country. In this respect, its defenders are almost as much to blame for its political failure as its opponents.
Postscript, April 25, 2016: This article about crime in San Francisco is a nice confirmation of the point I make in the preceding few paragraphs, not that I’m suggesting that the criminals described in it should necessarily be shot.