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Friday, March 30, 2018

Guns, Phones and Property Rights

In the wake of the terrible school shooting in Florida, a new wave of demands have risen to restrict Second Amendment rights. Among the most absurd demands are the idea to raise the legal age for buying a firearm to 21, and the notion of a blanket ban on gun ownership.

There is an angle to this issue that is not often discussed, one that I would like to address here. First, though, let me point to an important consequence of the standard arguments from opponents to the Second Amendment. The idea that we should somehow repeal the Second Amendment and replace it with a blanket ban on guns is motivated by references to how some people misuse their guns. The consequence of this type of argument is that we should also ban the private ownership of cars. 

Since the gun-ban argument is based on references to the victims of gun violence, a blanket ban on car ownership makes a lot of sense. More people die in DUIs, for example, than of gun violence. If we should ban lawful citizens from owning guns, we should also ban lawful citizens from owning cars; just as the gun-ban argument suggests that any gun can be used to kill, it is perfectly rational to suggest that any car can be used by an intoxicated driver to kill people in a crash.

There is also an automotive parallel to idea to raise the legal age for buying guns to 21. Teenage drivers are among the most dangerous on the road, disproportionately being involved in accidents. It is, therefore, perfectly reasonable to raise the legal driving age to 21 to drastically reduce the number of deadly car crashes. 

There is, of course, another approach. Instead of generalizing the absurd logic of the gun-ban proponents, we could also defend the Second Amendment on principled grounds, from individual freedom to property rights. 

The property-rights approach is related to individual freedom. In a truly free society, government has one duty, and one duty only, namely to defend life, liberty and property. Property, in turn, is a means toward the pursuit of happiness and the production of prosperity. An unabridged property right is therefore an essential component of an absolutely free society. Property rights can be restricted for one, and only one, purpose, namely to defend life, liberty and property themselves.  

Under unabridged property rights, the right to on firearms is - naturally - also unabridged. Some people raise valid questions as to what this means in practice; the late Justice Scalia asked if it means that private citizens should be allowed to own military-grade weapons. Under libertarian principles of freedom (outlined in direct lineage from John Locke to Robert Nozick) there are seemingly no restrictions on such gun ownership. This would imply that private citizens could buy jet fighters, cruise missiles and nuclear submarines. 

In reality, this is not the case. As I mentioned, there is one - and only one - restriction on property rights, namely that which allows government to protect life, liberty and property. In order to do so, government must have the final word in the use of force. For example, if Jack occupies Joe's land and refuses to give it up even as he is proven in a court of law to be violating Joe's property right, government must be able to evict Jack. For that purpose, government must have the largest "muscle" and always be able to defend the rule of law.

Here, another valid concern is often raised, namely the right of private citizens to form militias in defense against an oppressive government. If government always has the largest "muscle", it is said, citizens will never be able to defend themselves against a tyrannical government. 

This is a good argument, but it rests on the implicit premise that all governments are morally comparable. A minimal government, of the kind that is written into the United States constitution, governs with the consent of the people. So long as we have our constitutional republic (which, by the way, is vastly preferable to a parliamentary democracy), our government operates based on the consent of the people. 

For the record, this means that I do not share the fringe arguments that the United States government is a tyrannical government. Those who claim so are ill informed about tyranny. A tyrannical government would repeal the constitution and shut down its institutions. We have a constitutionally working government; it is not limited, but it is constitutional. 

To return to the property rights argument in defense of the Second Amendment: the moral right of our government to have final-word superiority on the use of force remains in place so long as our government is a constitutional republic. Any other approach is meaningless, as no threat exists to our constitutional republic. The limitation on ownership of guns is based on the necessity of a government that can always protect life, liberty and property. 

To reinforce this point: suppose anyone could amass formidable military weaponry. What would that do to property rights? The only way you can keep the Corleones from taking over your casino is by having bigger guns and more brutal enforcers than they have. By definition, that is a society in anarchy, not in liberty. 

Now that we have established a minimal-government defense of, and limit to, gun ownership, let us move on to another aspect of the property-rights argument. Parallel to the gun-ban discussion there is an ongoing conversation about our electronic communication devices, primarily smartphones. Apparently, the Trump administration is open to new legislation that would force smartphone manufacturers to include a "back door" that government can use in order to search your phone. 

This type of legislation would be a response to the aftermath of the San Bernardino terrorist attack, where the U.S. government failed to penetrate the code that locked the phone owned by one of the terrorists. Technically, it would be akin to every car manufacturer having to deposit an extra set of keys to every car it makes, with the federal government. 

Opponents to the government access argument suggest that the information in a smartphone - or any other type of computer - is the private property of the owner of the device. They are correct, of course: the device, and however it is used, is by default none of government's business. And, with the risk of making a painstakingly obvious point: if a person misuses his property to harm the life, liberty or property of another individual, then the right to keep government out of one's phone ends, just like it would with any other property used in criminal activity. 

Information stored in a drawer in one's desk or on an electronic device, is as much private property as a firearm. Just like government has no default right to pry into an electronic device, it has no default right to pry into the private ownership of a firearm. Or, to make the argument from the opposite angle: if we accept that government has the right to restrict, or condition, ownership of a firearm, we also accept that government has the right to restrict, or condition, ownership of electronic devices. 

Does this mean that I have the right to put an impenetrable lock on my computer? Do I, today, have the right to put an impenetrable lock on my house? The answer to the latter question is affirmative, and therefore it is affirmative in the former case as well. If government can prove that it has probable cause to search my house, I have a legal obligation to provide access; some would make the respectable point that it is government's business to penetrate my locks. By the same token, it would be government's business to penetrate the lock on my electronic device. Regardless of whether or not we view it as an obligation to provide government access under proven probable cause, it is important to note that law abiding citzens do not have a default obligation to deposit a key to their cars, their houses or their phones with a government agency just in case I would do the unthinkable and commit a crime. 

If government forces smartphone manufacturers to build in a key by default, it will effectively force every smartphone owner to give government a key to their phones just for buying the phone. 

The lock on one's property is a manifestation of an unabridged property right. So is my right to own a firearm. Again, there is one, and only one, default restriction on that property right, namely the infringement necessary to secure the perpetuation of that right itself. We already discussed what that means in terms of guns; when it comes to ownership of other property, a tax to fund a minimal government is the only reasonable default restriction. 

With this principled property-rights argument, I also acknowledge that it is practically impossible to move in a heartbeat from today's patchwork of legislation to a pure state of absolute freedom. It takes a long time to reform a country with the kind of big government we have today. That reform process begins with a civilized discussion about the interaction between principles and reality. It is my ambition with this blog to maintain that civility; I ask any commentators, here or on Facebook, to maintain the same level of civility. 

Thank you.

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