by Marc J. Victor
Congratulations! If you are fortunate enough to be reading this article, you won the lottery of birth. You were born at the best time, so far, to be alive. You are also likely to have been born in one of the best places on the planet. Like me, you are spectacularly lucky. Considering our circumstances, most of which we had very little or nothing to do with, we are indeed hugely fortunate. I urge you to pause, take a deep breath, and reflect on this observation for a moment before you read on.
Let’s Not Fight the Facts
There are many things I wish were different about the world. I’d love to live in a world where all adults were competent and peaceful. I don’t worship guns, nor do I demonize them. I’d be happy to live in a utopian world where nobody owned guns for self-defense reasons because it was unnecessary. As we know, such a world is pure fantasy.
When I served in the United States Marine Corps, I had the opportunity to fire many different weapons; several were high-powered automatic ones. I respect them as tools. I also respect that some people enjoy spending their time safely and responsibly practicing their marksmanship with weapons. While I prefer to spend my time doing other things, I respect the rights of competent adults to do what they prefer peacefully.
While we may wish the facts of reality were otherwise, reasonable people who are committed to truth ought to generally agree with the following statements:
A Principled Approach
Although we live in the best of times, we don’t live in perfect times. This is one of the most polarized times in recent history. There are generally two positions on almost all issues today: you are either “pro” or “con.” The more nuanced and sophisticated positions are generally drowned out by the reckless fervor and loud clamoring of the hostile masses on either side of any particular issue. The gun issue is certainly no exception.
Indeed, I can think of no issue more polarized than the question of gun policy. It has become like a religious cult on both sides. Some people worship guns, while others demonize them. Most people do not reason from the right principle. There is a way to analyze and solve this issue on a principled basis that is entirely compatible with a reasonably safe and free society. As always, the key is recognizing the important basic principle on which all laws ought to be based to have a civilized, reasonably safe, and free society.
Civilized people ought to agree that competent adults are entitled to define and pursue their happiness. Said another way, competent adults should to be in charge of their own lives and property. They have the right to be left alone or to peacefully and fairly contract with other competent adults regarding their property. A free society requires the proper balance between the rights of one person to do whatever they want with their property and the equally important rights of others not to be disturbed in their affairs by the activities of other people. This is the essence of a free society.
As such, people desiring a peaceful and free society should agree that initiating non-consensual force against another person or their property and engaging in fraud or coercion is wrong in all cases. Further, it remains wrong even if the use of force, fraud, or coercion is employed to accomplish desirable results. As an illustration of this point, imagine a thief stealing money from a person and then donating the stolen money to a truly worthy charity. The donation to charity doesn’t justify the theft.
Moreover, it isn’t only the actual initiation of either force that violates the rights of others. The substantial threat of such an initiation also violates another’s rights. For this same reason, we recognize a justified act of self-defense even before an actual use of unjustified force. That we don’t always agree on exactly which particular circumstances allow a justified act of self-defense doesn’t mean we fail to recognize the principle that one need not wait until another’s fist hits their face before such person can legally and properly act to prevent the trespass.
As with self-defense, reasonable people sometimes disagree on what particular circumstances constitute a substantial threat of initiating non-consensual force such that preventative action is legally allowed. Nonetheless, the principle remains valid. The first step toward a free and virtuous society is arriving at the proper principle.
We must recognize that a virtuous society can’t effectively be mandated or legislated. We must persuade our fellow brothers and sisters to be virtuous. Indeed, parents, and not the government, must be on the front lines of this effort. We urgently need to help each other become better and more effective parents. I can think of no more important task to move us closer to a virtuous society.
The fundamental principle that I have been describing and is at the base of the legal analysis we ought to employ can be referred to as “The Live and Let Live Legal Principle” (hereinafter the “3LLP”). Because the 3LLP is a principle, no particular set of words can fully capture its entire meaning for all circumstances. As such, it must be reasonably interpreted and applied to the various and countless unique factual situations that life presents. Additionally, like any principle, reasonable minds can and do disagree with the proper implementation of the 3LLP. This fact does not negate the importance of the basic idea underlying the 3LLP.
Many people already subscribe to a “live and let live” attitude. It requires respect for the rights and sovereignty of others to both define and pursue their happiness. This is especially important in cases where we strongly disagree with how people define or peacefully pursue their happiness. To the extent societies have adopted the 3LLP, freedom and prosperity have thrived. I have heard the 3LLP often expressed but less often implemented throughout different cultures and groups.
People who espouse the 3LLP come from all walks of life, racial backgrounds, and socio-economic groups and live in different places around the world. They are a varied group. Many are members of different political parties or are entirely non-political.
The 3LLP recognizes and respects the sovereignty of our fellow human beings. We should recognize we don’t all agree on moral issues. However, the 3LLP is the least common denominator of moral issues upon which civilized people generally agree. If you think about it, most people don’t argue for the morality of initiating nonconsensual force against others.
As such, moral issues that don’t violate the 3LLP should remain in the domain of persuasion and not be imported into the law, where they are forced upon all people. Therefore, the law generally shouldn’t intervene unless and until someone is alleged to have violated the 3LLP.
Most political questions can be resolved by simply analyzing the 3LLP. The gun issue is no exception. Although reasonable minds disagree on properly implementing the 3LLP, this principle yields a framework to resolve difficult issues.
The 2nd Amendment
As with all fundamental rights in the Constitution, they exist independent of either the government or the Constitution. As such, these rights are enumerated by the Constitution. The government does not grant fundamental rights. To be sure, I suspect we both agree that if the 2nd Amendment were constitutionally repealed as it could be, we would nonetheless argue a right to keep and bear arms continues to exist. The same analysis remains true for each of the Amendments and individual rights in the Constitution.
The 2nd Amendment to the United States Constitution clearly states, “… the right of the people to keep and bear Arms, shall not be infringed.” While recognizing that the right shall not be infringed, the Clause offers no guidance about interpreting the nature and scope of that right. It certainly does not say the right is absolute under all circumstances. Some people argue this language recognizes an absolute right to have guns under all circumstances. As with almost all constitutional rights, the United States Supreme Court disagrees.
The 1st Amendment to the United States Constitution also uses what appears to be similarly absolute language. It states, “Congress shall make no law… abridging the freedom of speech….” However, the United States Supreme Court has long recognized many varieties of speech that can legally be abridged and indeed totally prohibited such as fraud, obscenity, defamation, fighting words, child pornography, perjury, blackmail, and solicitations to commit criminal offenses.
As previously stated with the 3LLP, all principles require interpretation. No written rule or law fits perfectly in all possible factual situations. Moreover, if you think carefully about it, you don’t believe people ought to have an absolute right to have guns under all circumstances. Said another way, you agree that the right of the people to keep and bear arms isn’t an absolute right.
To be sure, think about the absolute interpretation of the 2nd Amendment right as applied to a person properly convicted of 1st-degree murder and sentenced to natural life in prison. Imagine he wants to take his guns to prison as he makes clear his intention to shoot the guards and other inmates. No reasonable person thinks such a properly convicted prison inmate ought to be able to exercise an absolute 2nd Amendment right to bring his guns to prison.
As such, if you are among the reasonable, you acknowledge the right to keep and bear arms isn’t absolute but rather is properly limited under certain specific circumstances. Given that reasonable people agree that the right described in the 2nd Amendment isn’t absolute, we must determine the proper scope of that right. After we have determined the proper scope of that right, it will become clear why it is indeed accurate and appropriate to say such a right shall not be infringed.
Determining the Proper Scope of the Right
As with all issues, people have preferences and opinions about how the world should be. We are all free to attempt to persuade and convince our fellow humans into and out of any particular belief. This is part of the nature of a free society. However, to impose our opinions and beliefs on another competent adult is another matter entirely. Compliance with the 3LLP is not optional for a free and civilized society. Said another way, nobody has a right to violate the 3LLP.
We all have opinions about who ought to have a gun. Some people believe everyone ought to have any gun they choose under all circumstances. Others believe only law enforcement officers ought to have guns. Some people hold opinions that depend on the characteristics of the gun at issue. We have no shortage of opinions about gun ownership and possession.
However, as with many other issues, when it comes to guns, the only opinion one can properly insist upon is the mandate to comply with the 3LLP. As such, although one is free to hold any opinion regarding gun ownership and possession, compliance with the 3LLP is the only opinion society should properly legally impose on others. Said another way, unless someone is violating the 3LLP, there is no other proper basis upon which to deny gun possession.
Whether a person is personally pro-gun or anti-gun is irrelevant to the question of what laws regarding guns, other weapons, and dangerous substances are proper. As with other issues, we arrive at the correct legal answer regarding these items if we fairly, reasonably, and honestly determine whether someone is violating the 3LLP. Stated simply, if a competent adult, including a competent adult possessing a firearm, is not violating the 3LLP, that person should be left alone as a legal matter. We can say the same for a minor possessing a firearm who is subject to the responsible supervision of a competent adult. We are not addressing moral questions with this analysis. That the question of guns and gun regulation is a recurring hot button issue changes nothing about our dispassionate and clear-headed inquiry into whether a person is violating the 3LLP. Because there is nothing about responsible ownership and possession of firearms, other weapons, and dangerous substances by competent, responsible adults that violates the 3LMP, the discussion in this section is limited solely to an analysis of the 3LLP.
Obviously, using a firearm, other weapon, or dangerous substance to violate the 3LLP should always be illegal. It is generally easy to identify a situation where a person uses a firearm or other weapon to initiate nonconsensual force against another person. Murder and certain varieties of aggravated assault are obvious examples. There is no controversy on this point. As you know, a person can also violate the 3LLP by using any of these items to create a substantial risk or threat of an initiation of nonconsensual force against another person. If such a circumstance is presently occurring, it is justifiable to immediately, forcibly, and reasonably take the item away from the person violating the 3LLP. We generally refer to this circumstance as either self-defense or defense of others.
However, unlike the situation where a person actually initiates nonconsensual force against another person, correctly ascertaining the circumstances under which a person poses a substantial risk or threat with a firearm, other weapon, or dangerous substance is sometimes a more complex inquiry. While we could imagine countless unique factual situations where a person violates the 3LLP in this way, there are three broad categories of ways a person could present a substantial risk or threat of initiating nonconsensual force merely by possessing a firearm, other weapon, or other dangerous substance:
Category One – History of Violating The 3LLP With Violence
Some people have a well-documented history of violating the 3LLP in such a serious way that their mere possession of certain weapons equates to a substantial risk or threat of an initiation of nonconsensual force against others. We can accurately refer to these people as “violent felons.” There may also be a point at which a substantial history of misdemeanor assaults may lead to the same conclusion. It is important to note that not all convicted felons are violent felons. A person could be appropriately convicted of felony theft or any other non-violent felony crime, such that possessing a firearm or other weapon does not pose a substantial risk or threat of violating the 3LLP. As such, a non-violent felony conviction should be insufficient to legally prohibit an otherwise competent adult from possessing firearms, other weapons, or dangerous substances. This is so because the person’s past conduct does not allow us to reasonably conclude that their current mere possession of such items poses a substantial risk or threat to others.
For the same reason we can properly deny the right to drive to habitual drunk drivers who have repeatedly subjected others to substantial risks arising from their reckless driving, we can properly deny firearms, other weapons, and dangerous substances to violent felons. Therefore, at some point, when a person is a well-documented violator of the 3LLP with violence, we can reasonably conclude such a person poses a substantial risk merely by possessing such items. Exactly where that point occurs is one of those many areas where reasonable minds equally committed to the 3LP can disagree. As such, we should expect local communities to come to different reasonable conclusions on this point.
Additionally, under what circumstances such a person is rehabilitated and no longer poses a substantial risk of violating the 3LLP merely by possessing these items is also an area where reasonable minds can disagree. If a convicted violent felon no longer poses a substantial risk of violating the 3LLP, it would no longer be justified to prohibit such a person from possessing a firearm or other weapon. We should also leave these determinations to local communities to reasonably decide.
We should acknowledge that some people tell us in advance of their intentions to violate the 3LLP with a firearm or other weapon. Assuming such threats are provable, credible, imminent, and substantial, we should take such people at their word. Therefore, when people credibly announce their violent intentions, they create a substantial risk or threat which violates the 3LLP. For example, if a firearms owner reveals an intent on social media to commit mass murder with a firearm the next day, few would complain if we immediately rendered that person unable to commit such an act. We do not need to wait for the weapon to be discharged if sufficient evidence exists to act now. Reasonably acting to prevent an imminent and substantial initiation of nonconsensual physical force from occurring is the very nature of self-defense.
To be clear, I do not propose too loose of a standard to declare people substantial risks or threats such that they should be denied possession of a firearm. That a heated verbal argument occurred between people, without more facts, falls far short of the mark. However, we should concede certain appropriate circumstances exist when legitimate action can be taken because present circumstances amount to a substantial threat or risk of harm such that the 3LLP is violated. If a substantial threat is not imminent, due process requires that when such an accusation arises, it must be proven in court by the accuser with substantial evidence. As with all allegations, the accused must have a prompt, complete, and fair opportunity to defend themselves while the burden of proof remains firmly on the accuser. If the accusation is not proven, we should immediately return the accused to their original status without cost to the accused. Admittedly, this is not an area for bright-line rules, and we must tread carefully before people are interfered with, or we risk violating the 3LLP in the process.
Merely because reasonable minds can disagree on precisely when a person can be deemed a “substantial risk or threat” solely by possessing a firearm or other weapon is not a reason to abandon the 3LP. Local communities can and do come to different reasonable conclusions about these issues. That said, the point remains that the scope of the right to keep and bear arms does not necessarily permit possession of firearms or other weapons for the properly convicted violent felon, or for those who imminently intend to achieve such a status.
Category Two – Mental Incompetency
Similar to the category including violent felons, another group of people do not have a right to keep and bear arms because their mere possession of a firearm, other weapon, or dangerous substance poses a substantial risk of an initiation of nonconsensual force to others. Possession of such items is a right that requires specific legal responsibilities to be exercised in a way that does not violate the 3LLP. In a free society, competent adults are entitled to do as they wish with their property, but only so long as they do not infringe on the rights of others to be left alone. Posing a substantial risk to another person for any reason infringes on that right.
Responsible and safe possession of firearms, other weapons, and dangerous substances requires an appropriate level of mental competency. Because a four-year-old child does not possess the mental competency needed to have these items, we can legally prohibit such a child from keeping and bearing any of these items. Likewise, certain adults who suffer from specific types of mental illness or injury also lack the required mental competency for responsible and safe possession of these items.
In addition to age and certain types of mental illness or injury, temporary conditions such as drunkenness deprive an otherwise competent person of the minimum level of competency to safely possess firearms, other weapons, or dangerous substances. As with the violent felon category, reasonable minds can disagree on precisely what constitutes sufficient mental competency. As such, different local communities should be allowed to come to different reasonable conclusions in this area. Further, there ought to be an appropriate process for determining if and when such deficiencies in mental competency are sufficiently restored. Nonetheless, the law should legally prohibit people who lack sufficient mental competency to safely possess firearms, other weapons, or dangerous substances from having those items.
Category Three – Technical Incompetency
As with the other two categories, the issue is whether the mere possession of a firearm, other weapon, or dangerous substance violates the 3LLP because the person poses a substantial risk or threat to another person or their property. Considering the expansive universe of firearms, other weapons, and dangerous substances, it should be evident that mere possession of some of these items requires a higher degree of technical competence to possess, store, or use such that we do not subject others to a substantial risk of an initiation of nonconsensual force. Said another way, if a person is insufficiently educated about the nature of the firearm, other weapon, or dangerous substance, its capabilities, or how to store and use it safely, we can reasonably conclude such a person poses a substantial risk to others merely by possessing the item without appropriate supervision.
For example, the technical competence required to safely operate and store a simple revolver differs from that needed for a fully automatic belt-fed .50 caliber machine gun. While a local community may or may not opt to require a basic class as a prerequisite to owning a simple revolver, we should reasonably expect more extensive training and certification will be reasonably required to possess the fully automatic machine gun. As different weapons are capable of more significant harm to greater numbers of people at further distances, a higher level of technical competency and more stringent storage requirements are required to avoid creating the types of substantial risks that violate the 3LLP. We can say the same for dangerous chemicals and explosives.
For example, it may be entirely appropriate to require that before any person possesses a fully automatic weapon, that person must present a valid certificate reflecting proper training from a reputable training organization before we can reasonably conclude mere possession of that weapon does not violate the 3LLP. As with the other two categories, reasonable people can disagree on precisely what level of technical competence is required to possess the item such that there is no substantial risk to others or their property. We should expect and tolerate different but reasonable rules in various local communities in this area as well.
It is important to note that the requirement of proper mental or technical competency to possess certain firearms, other weapons, and dangerous substances should never be used as a ruse to ban these items by people not committed to the 3LP. As such, unreasonable competency requirements that exist to effectively deny legal possession to adequately qualified people who do not pose substantial risks certainly violate the 3LLP. Nevertheless, the fact remains that some technical competence for certain items is necessary to avoid posing a substantial risk to others. As such, the right to keep and bear arms does not encompass the person who lacks the sufficient technical competency to safely possess, store, or operate a firearm, any other weapon, or dangerous substance.
As I have pointed out, different local communities will predictably fashion different reasonable policies on these issues for various reasons. We should acknowledge the appropriateness of different risk assessments and risk tolerances in dense city areas compared to rural ones. As we reasonably apply the 3LP to difficult or complex issues, we should welcome a free market of competing legal rules that will ultimately result in the most just and effective ones prevailing and spreading throughout each country and the world. Indeed, this is the best way to find the most influential freedom- and peace-promoting policies, rules, and laws in those areas where reasonable minds equally committed to the 3LP disagree about how best to apply it.
No policy, rule, or law will create utopia, but the impossibility of utopia should not undermine our dedication to creating a 3LP-based society and world. While it is true that laws against murder do not, and will never, eliminate murders, this reality does not mean we ought to abandon laws against murder. Likewise, laws restricting the possession of firearms, other weapons, and dangerous substances in appropriate circumstances, such as the three categories described above, will not prevent all misuse of those items. Nonetheless, we ought to employ our best efforts to keep these items out of the hands of the people in the three groups described above. As a criminal defense attorney for over thirty years, I have personally witnessed prohibited possessor laws successfully keep firearms out of the hands of some such people. That fact alone makes an effort worthwhile.
If we are serious about attempting to keep firearms, other weapons, and dangerous chemicals away from people whose mere possession of them violates the 3LLP, failure to attempt to ascertain whether a potential buyer is such a prohibited person completely undermines that effort. As such, instant and effective background checks make sense at the time of purchase. There are different ways to accomplish background checks. We could utilize privately run background checks that do not involve the government. Alternatively, reviewing a coordinated and current list of people specifically prohibited from possessing these items could be sufficient to resolve any background check for those in either Category One or Category Two. If the potential purchaser’s name is not on the list of prohibited possessors, the seller could reasonably assume there is no prohibition. As such, there would be no need for a full or traditional background check of any individual in any event. Regarding Category Three, because different levels of technical competence are required depending on the item to be purchased, local communities will need to create reasonable standards to demonstrate such competence.
Finally, certain nuclear, biological, or chemical weapons may, because of their mere existence, pose a substantial risk to others under any circumstances. As such, legally banning them may be consistent with the 3LLP. When assessing whether a given set of circumstances constitutes a “substantial risk or threat” such that the 3LLP is violated, we should always consider both the likelihood of the harm occurring and the magnitude of harm that would occur if the threat or risk materialized. For example, even in a circumstance with a low possibility of accidental use, the mere existence of a weapon capable of destroying much of the entire world would likely constitute a substantial risk such that it violates the 3LLP.
Additionally, given that many, if not all, nuclear, biological, and chemical weapons cannot be utilized solely in a defensive or targeted way only against aggressors, it could be argued they necessarily always violate the 3LLP with every use. We could uniformly ban such weapons entirely for this reason alone.xlviii This is an area worthy of much more analysis. I do not intend to resolve these complex issues here.
As with the issue of free speech, it is essential to point out that, in a free society, property owners remain free to ban whatever guns, weapons, or dangerous items they see fit to ban without consulting anyone else or even attempting to justify their reasons for doing so. As homeowners and business owners are free to restrict what they want, others remain free to refuse to do business with them, to non-violently picket, or even loudly voice their disagreement with such policies. These are the consequences of a free society.
Moreover, people remain free to contract with each other to voluntarily and mutually prohibit any or all guns, weapons, or dangerous substances they see fit. Indeed, voluntary homeowners’ associations can and do currently have such policies on guns, weapons, other hazardous substances, and many other things, much to the frustration of many people, including me. Free competent adults are entitled to enter into any agreements they choose regarding their own property. There is more than one way to reasonably interpret and implement the 3LP, and reasonable minds can and do disagree. However, carefully reasoning from the correct principle is always the crucial starting point for the analysis.