Archive for November, 2009

Freedom Costs a Buck-Oh-Five

Posted in Law, Poli-ticks on 20091114 by Avenging Sword

My reaction to the recent Ft. Hood shootings:  freedom isn’t free.  Or, as was noted in “The American President”, civil liberties sometimes come with a price tag attached.  The liberties I’m thinking of here are religious freedom, and the right to keep & bear arms.

Regarding religious liberty:  The Founders were actually quite familiar with the notion that religious beliefs might inspire believers to criminal or seditious behavior.  Recall that Europe had been wracked by religious wars, and that England had had a long history of fearing (actual or purported) sedition from Catholics.  It was for this reason that many early predecessors of the Free Exercise Clause were conditional:  they extended religious liberty only to faiths that “did not disturb the public peace” (New Hampshire, 1784), or “justify practices inconsistent with the peace or safety of this State” (New York, 1777), or were “not repugnant to the peace and safety of the State” (Georgia, 1777), so as to permit denial of such liberty to faiths that did not meet such criteria (*).  However, rather than mimic (say) Georgia’s religious liberty provision, the federal Free Exercise clause contained no such caveats or limitations; rather, it extended religious liberty to all faiths.  Though it’s tempting to argue that such silence actually includes some implicit exemption for “seditious religions”, it seems to me that the Framers knew quite well how to include such an exemption if so inclined:  state constitutions provided several examples.  For better or worse, they didn’t, and so we’re stuck with our current Free Exercise Clause – a provision that implicitly accepts the possibility that religions will inspire violence, and grants them rights nonetheless.

As for the right to keep & bear arms:  Though RKBA advocates are fond of quoting Heinlein’s dictum, “an armed society is a polite society”, in fact, this statement only applies if gun ownership is generally confined to those capable of wielding firearms responsibly (e.g., only in defense of self or others), and kept out of the hands of criminals, traitors, terrorists, etc.  (Of course, it’s easier to do this for some (e.g., persons w/ criminal records or adjudged mentally unstable) than others (e.g., Islamist terrorists in a society that prides itself on freedom of religion).)  Moreover, if a sufficiently large & cohesive minority within a society disagrees with the larger society regarding when it’s okay for private citizens to use force (consider, e.g., a nation with significant proportions of Islamists on the one hand, and Christian theocrats on the other), promoting widespread firearms ownership is less likely to produce civil peace than grease the wheels for the eventual civil war.

IMHO, Yglesias is right, when he suggests that incidents like the Fort Hood shooting are, to some extent, are the price we pay for the benefits of living in an armed society.  Intellectually-honest gun-rights advocates will acknowledge this:  that, while laws excluding criminals, the mentally unstable, etc., might help, nothing short of confiscation (& totalitarian enforcement thereof) will reliably prevent the occasional mass shooting.  From time to time, some nut will get their hands on a gun, and this sort of incident will result.  So long as the nuts, criminals, etc., comprise a relatively small proportion of society, this price will likely remain within acceptable limits; but it will not be non-zero.


(*) I’m indebted to Phillip Hamburger for noting this point.  See Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective”, 60 Geo. Wash. L. Rev. 915, 918-926 (1992); and Philip A. Hamburger, “More is Less”, 90 Va. L. Rev. 835, 838-841 (2004).