The Volokh Conspiracy - Monopoly on the Use of Force:

I was corresponding with a friend of mine -- a very smart fellow, and a lawyer and a journalist -- about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I've heard it in gun control debates before:

Forgive me, but I'm old-fashioned. I like the idea of the state having a monopoly on the use of force.

I want to claim that this echo of Weber (who said "Today ... we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory") is utterly inapt in gun control debates, at least such debates in a Western country.

To begin with, note that, read literally, my friend's proposal is not "old-fashioned." It's not new-fashioned. It has never been the fashion in any jurisdiction in America.

1. Every jurisdiction in America has always recognized individuals' right to use not just force but deadly force in defending life. To my knowledge, every Western democracy does the same (though with some differences about the permissible occasions for and extent of such use of deadly force, and of course with differences about what deadly weapons people are entitled to possess). It may well be that virtually every state in the world does the same, at least in many situations, though I can't speak confidently about that.

2. Every jurisdiction in America except D.C. has also always recognized individuals' right to possess loaded guns at home for self-defense, and, generally speaking, defense of others, which I will include under the label of self-defense below. But even D.C., which bans (I use the present tense because the mandate in the D.C. Circuit's Second Amendment decision has not yet issued) possession of handguns and possession of loaded or unlocked rifles and shotguns, allows people to use other deadly weapons, and likely even to load the long guns when needed for imminent self-defense.

3. Use of deadly force for self-defense has always been allowed in public places as well as in private places. Even in the about 12 states (and until recently the count was indeed higher) that do not let virtual all law-abiding adults get licensed to carry guns in public, the use of other forms of deadly force is perfectly legal, nearly anywhere.

4. Throughout America, many non-state organizations even maintain private armed staff -- armed security guards, whether used to protect a business's property on its land, to protect property off the business's land (consider armed guards on armored trucks), or to patrol residential areas on behalf of the residents. I'm sure that most other Western countries allow some degree of such armed protection (with the arms including firearms) by private security guards, though the number of such private guards may vary considerably from country to country.

So whatever the meaning of Weber's statement might be, it does not mean only a state may physical force, or even lethal force -- nor would such a policy be sound or morally acceptable (since it would require a prohibition on all private self-defense using lethal force of any sort). It might mean that the private use of force is allowed only to the extent it's permitted by the state (in Weber's words, "the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it[; t]he state is considered the sole source of the 'right' to use violence"). This may be a controversial moral proposition but which could at least be consistent with the reality I describe above, and with the moral imperative of allowing self-defense. It might also be read as meaning that only the state may generally use retaliatory force, which is to say force aimed at after-the-fact retaliation (whether for retribution, deterrence, incapacitation, or whatever else) when the imminent need for self-defense has passed.

But the "monopoly on the use of force" statement is not relevant to self-defense, either if we're trying to describe current or "old-fashioned" law, or even if we're trying to set up a new rule (unless we are willing to abolish forcible self-defense, which I'm sure even my correspondent would not call for). The question at the heart of concealed carry debates is not whether private individuals should be able to use force in some situations; of course they should. It's not even whether private individuals should be able to have guns for self-defense, except insofar as some people would totally ban all privately owned guns, in the home and outside it. It's whether private individuals should be able to defend themselves using especially effective weapons outside the home, or just using powerful weapons within the home and less effective weapons outside the home (or, even if for those who would ban all guns, using only less effective weapons either in or out of the home).

Nor can my friend's argument be rescued on the grounds that he was simply speaking somewhat inexactly, and omitted a word or two of qualification (or omitted mention of some special cases that are not raised by our discussion about concealed carry). You can add "deadly" before "force" ("the state having a monopoly on the use of [deadly] force"), and the result would still have never been the fashion and would still be deeply morally unappealing when applied to private self-defense. You can say "force using firearms," and the result would still have never been the fashion within the U.S. And of course you can't say "but of course I was making a general statement, and self-defense and defense of others are different matters," because what I was discussing was precisely arming people for self-defense and defense of their friends, acquaintances, coworkers, and students.

I stress again that I'm not trying to disagree with Weber here; I'm not a Weber expert, but it may well be that his position may be sound for some of the reasons I described, reasons that keep the position from excluding forcible self-defense. My point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.

	[Eugene Volokh, April 20, 2007 at 1:00pm] Trackbacks Monopoly on the Use of Force: I was corresponding with a friend of mine -- a very smart fellow, and a lawyer and a journalist -- about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I've heard it in gun control debates before: Forgive me, but I'm old-fashioned. I like the idea of the state having a monopoly on the use of force. I want to claim that this echo of Weber (who said "Today ... we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory") is utterly inapt in gun control debates, at least such debates in a Western country. To begin with, note that, read literally, my friend's proposal is not "old-fashioned." It's not new-fashioned. It has never been the fashion in any jurisdiction in America. 1. Every jurisdiction in America has always recognized individuals' right to use not just force but deadly force in defending life. To my knowledge, every Western democracy does the same (though with some differences about the permissible occasions for and extent of such use of deadly force, and of course with differences about what deadly weapons people are entitled to possess). It may well be that virtually every state in the world does the same, at least in many situations, though I can't speak confidently about that. 2. Every jurisdiction in America except D.C. has also always recognized individuals' right to possess loaded guns at home for self-defense, and, generally speaking, defense of others, which I will include under the label of self-defense below. But even D.C., which bans (I use the present tense because the mandate in the D.C. Circuit's Second Amendment decision has not yet issued) possession of handguns and possession of loaded or unlocked rifles and shotguns, allows people to use other deadly weapons, and likely even to load the long guns when needed for imminent self-defense. 3. Use of deadly force for self-defense has always been allowed in public places as well as in private places. Even in the about 12 states (and until recently the count was indeed higher) that do not let virtual all law-abiding adults get licensed to carry guns in public, the use of other forms of deadly force is perfectly legal, nearly anywhere. 4. Throughout America, many non-state organizations even maintain private armed staff -- armed security guards, whether used to protect a business's property on its land, to protect property off the business's land (consider armed guards on armored trucks), or to patrol residential areas on behalf of the residents. I'm sure that most other Western countries allow some degree of such armed protection (with the arms including firearms) by private security guards, though the number of such private guards may vary considerably from country to country. So whatever the meaning of Weber's statement might be, it does not mean only a state may physical force, or even lethal force -- nor would such a policy be sound or morally acceptable (since it would require a prohibition on all private self-defense using lethal force of any sort). It might mean that the private use of force is allowed only to the extent it's permitted by the state (in Weber's words, "the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it[; t]he state is considered the sole source of the 'right' to use violence"). This may be a controversial moral proposition but which could at least be consistent with the reality I describe above, and with the moral imperative of allowing self-defense. It might also be read as meaning that only the state may generally use retaliatory force, which is to say force aimed at after-the-fact retaliation (whether for retribution, deterrence, incapacitation, or whatever else) when the imminent need for self-defense has passed. But the "monopoly on the use of force" statement is not relevant to self-defense, either if we're trying to describe current or "old-fashioned" law, or even if we're trying to set up a new rule (unless we are willing to abolish forcible self-defense, which I'm sure even my correspondent would not call for). The question at the heart of concealed carry debates is not whether private individuals should be able to use force in some situations; of course they should. It's not even whether private individuals should be able to have guns for self-defense, except insofar as some people would totally ban all privately owned guns, in the home and outside it. It's whether private individuals should be able to defend themselves using especially effective weapons outside the home, or just using powerful weapons within the home and less effective weapons outside the home (or, even if for those who would ban all guns, using only less effective weapons either in or out of the home). Nor can my friend's argument be rescued on the grounds that he was simply speaking somewhat inexactly, and omitted a word or two of qualification (or omitted mention of some special cases that are not raised by our discussion about concealed carry). You can add "deadly" before "force" ("the state having a monopoly on the use of [deadly] force"), and the result would still have never been the fashion and would still be deeply morally unappealing when applied to private self-defense. You can say "force using firearms," and the result would still have never been the fashion within the U.S. And of course you can't say "but of course I was making a general statement, and self-defense and defense of others are different matters," because what I was discussing was precisely arming people for self-defense and defense of their friends, acquaintances, coworkers, and students. I stress again that I'm not trying to disagree with Weber here; I'm not a Weber expert, but it may well be that his position may be sound for some of the reasons I described, reasons that keep the position from excluding forcible self-defense. My point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.