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Tuesday, December 18, 2012

The Pathological Perspective, Guns, and Deinstitutionalization

I offer here an observation on some of the post-Sandy Hook debate.  It doesn't have any clear policy implications one way or another, but it nonetheless struck me.

Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment.  He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically."  It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective.  Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.  

Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness.  David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument.  What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective.  Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants.  And they had then-current examples (from the Soviet Union) where governments were doing just that.  (For a hint at these issues, see page 15 and note 63 of this article.)

Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process?  Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree.  For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense.  For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times."  And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms.  But I thought the parallel in the arguments was striking.

Posted by Sam Bagenstos on December 18, 2012 at 09:28 AM in Constitutional thoughts, Current Affairs | Permalink

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Apologies for the spelling error. As a helpful correspondent points out, the word is "tyrannical."

Posted by: Sam Bagenstos | Dec 18, 2012 9:45:21 AM

Unlike the laws of most all nations, we had the benefit of a ground-up principle based Constitution with the Bill of Rights falling squarely within the principled framework. So I agree that a systemic view (rather than episodic) is best.

The second amendment was not only a guarantee of distributed rights to arm against a tyrannical central government; it was also a restatement of the citizen's duties to defend the nation. Recall that a standing army was an anomaly for the frontier republic and the civil defense was based on local militias.

So of the two imperatives for success of the right, the proof of the first is that the central government does not harbor even the faint thought that it should ever be possible to act by intimidation and coercion to achieve aims unachievable by the a free ballot box. The proof of the second is that we retain a culture where there are sufficient numbers of eligible citizens mindful of their obligation to defend the country that we do not need to offer much above a competitive wage to attract them to service. The second amendment is working as it was designed to work.

Now imagine a state without the second amendment right. Applicants to the military would be given powers that set them apart from the populace. The citizen would have no apparent obligation to be ready to take up arms in an emergency without the express direction of a central government. Rather than participatory citizens that bear responsibility as well as the privileges of the state, they would slide into a mindset of wards of a culturally foreign power.

This is exactly how the economic dependent class of the country feels in regards to their economic obligations to the state. But, we dare not extend this economic dependency to the entire citizenry for the obvious reason that there would be no one left to earn the money to hand to the dependents. A similar logic for shared defense applies.

So without the second amendment, we would need to rely on universal service to culturally connect army to citizen least the army become a Praetorian Guard of the government. The instability of this situation is obvious. Examples of this relation between army and citizen in the countries that have nothing like the second amendment or universal service. Take for example the UK from the perspective of a Catholic of Northern Ireland. Likewise, one might consider China and Tiananmen Square or the chaos and charnage of Mexico.

So the conclusion of a few that weapons should not be like that of our military is wrongheaded in my view. They need not be as capable as those issued to the military but they do serve a purpose in forming the connection between citizen and state. Empirically, I think it is rather obvious that our army recruits tend to come disproportionately from organizations like the Boy Scouts and among the small towns and the south where the right to bear arms is seen from the civic perspective.

Change this and the system would not be pathological--it would not be the same system whatsoever. But it would be similar to Mexico, China, and the UK (which has had its own massacres of innocents nonetheless).

Posted by: deignan | Dec 23, 2012 12:39:06 AM

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