Anti-Climacus

Some thoughts on gun control and related matters*:

When I was in grad school, I once had the idea for a paper whose title would be "Easy Cases Make Bad Law." The idea came to me when putting together a term paper on the formation of the law for the International Military Tribunal at Nuremberg. Despite public perception, Nuremberg is generally considered a one-off in international criminal law, establishing few or no precedents binding on any subsequent courts, for the simple reason that the law was put together in a notably shoddy manner, punting on some questions of procedure and violating basic understandings of criminal law. It seemed obvious to me at the time (and having now taught the IMT a couple times, still seems obvious) that this procedural irregularity was entirely a feature of the rush to set up the court: Nazi leaders had to be tried right away, and it was obvious that most of them were guilty (of what exactly, in legal terms, was never clear), and so any institutional arrangement that worked quickly and produced the correct trial outcome would be accepted, no matter what other problems it may have had.

A discussion of this case would provide the launching pad for a more general discussion of law formation. Policy options often seem very clear, but law is an intensely messy procedure even in the best of circumstances. A law needs to have a good fit to the problem it is meant to address: it needs to be general, linking up as many relevant things in a class as there might be. But it also needs to be minimally tailored, doing the least amount that will be effective; it needs to be aware of negative externalities that all laws will impose because they aim to change behavior and that change cannot be predicted very well; it needs to recognize that laws are enforced by people with all their varied mental and emotional states, that organizations and laws have a way of building a logic that sustains their own existence, even if that logic bears little resemblance to the reasons for law in the first place.

Two additional, smaller considerations, on rights, and on the limits of law. On rights: the purpose of having a right to something means to recognize that we have to hold to it even when it would be easier, or more convenient, or safer, to put the right aside. One doesn't have to believe that rights are absolute trumps, but just that safety, expedience, or other quite-important considerations are things we accept rather than a loss of rights. If sufficient emergency justifies the suspension or revocation of rights, then they are not properly called rights: they're just nice policy things we'd like to have sometimes. The related point is that a system of law and government, no matter how coercive, is not going to be able to stop all violence, all risk, or all uncertainty. There will always be some.

Gun violence is a funny case because it illustrates so well how poor human beings are at estimating the odds of low-frequency events: mass shootings have a (slightly higher, still low) frequency even as gun violence and crime decline on the whole. But then, there are still people who think of cities as fantastically violent places even though you're better off in Manhattan, or Chicago, or LA now than 10 or 20 years ago. So also the general preference for driving to flying, even though the former is significantly more dangerous (a few months driving in Chicago have begun to change my own mental calculations on this point). One's feeling less safe has very little connection to whether or not one is objectively more safe. So feelings, however strong, will only get so far.

Alright, to the point: the problem with gun control laws is trying to build a general law out of the feeling of "this sort of thing can't happen." The suggested changes in law bear very little relationship to the enabling factors of the crime in question: what law is going to stop someone from taking the legally-owned weapon of someone else?

But more than this: the initial burst of "we have to do something" gets problematic when specifying the exact nature of the changes to gun policy that need to happen: the law can't be a list of generally-phrased items with a tapering "etc." at the end: it's a list of definite changes that have to happen. But the conviction that law needs to regulate guns isn't going to tell, for example, what specific number of rounds a clip should be limited to. 10? 15? 30? What's the principle on which that decision is going to be made? Is it possible to specify in any concrete way what would and wouldn't be possible with one number rather than another? If the answer to the difficulty here is just to ban guns (or a class thereof) outright, then it seems an admission that the actual difficulties is sculpting policy are too difficult and therefore it's better to avoid these questions entirely. But that, it seems, is problematic in its own way: I can't think of anyone who would accept this as a general governmental approach to social problems.

The reality is, I think, more difficult and less comforting: the death of anyone is a tragedy, all the more so when the means are violent and unnecessary. But the causes are complex, and many, and hiding behind it all is that tendency in human nature that makes the eradication of all violence impossible. To address all aspects of that problem head-on would require constant attention and action on the part of everyone and (as, for example, international criminal law tends to show) people don't like having that kind of responsibility. The difficulty of the solution doesn't change the problem.


*(A general note: people are not, generally, venial or stupid; people can be (and often are) mistaken, but we have a responsibility to take the views of others seriously; if you cannot imagine a serious circumstance under which people would hold a view opposed to your own, you have failed in your responsibility as a democratic citizen.)