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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.

Pyrrhus (mail) (www):
I'm interested in the theoretical assertion inherent in the Weber quote.

If the state is a "human community", are individual actors outside the state when they defend themselves in a way allowed by the state?

Does "monopolization of force" necessarily entail the designation of a subset of individuals who can use force, or could it merely be monopoly over the right to define when force may be applied in general. If the state gets to tell us when and how individuals may defend themselves, isn't that a monopolization of force, irrespective of "private" participation in the actual application of force>
4.20.2007 2:09pm
Sigivald (mail):
The thing the state has a monopoly on, I think, is more aptly the use of coercive force.

That's decently libertarian (individuals don't get to coerce, and the state does only in enforcement of contracts and basic rights law like capturing and punishing murderers and thieves, etc.), fits in pretty much exactly with common use and tradition, and all the rest.

I don't know Weber, so perhaps his definition of "force" was implicitly coercive or would have excepted self-defense - or perhaps he's just wrong on that point.
4.20.2007 2:10pm
Pyrrhus (mail) (www):
should have read more closely... I see that you have already suggested the above...
4.20.2007 2:12pm
xx (mail):
In respect of concealed carry for professors, in one instance it was the professor who was the perpetrator in a mass shooting. See Valery Fabrikant, Concordia University, 1992.
4.20.2007 2:29pm
PersonFromPorlock:
Weber was describing an ideal state, I think, not an historical one; real states do tend to monopolize coercion (consider self-defense in modern England).

Also, Weber was writing Wilhelmine Germany, which was certainly more coercive than many other contemporary states.

As far as your friend's argument about gun control goes, he forgets that in America the People are the sovereign, so each of us can say "l'etat, c'est moi!"

But only if we want to sound pretentious, of course. ;^)
4.20.2007 2:33pm
Philip Taron:
Perhaps your friend is really old-fashioned.

Judges 5:8: "...not a shield or spear was seen among forty thousand in Israel"

1 Samuel 13:19: "Now there was no smith found throughout the land of Israel: for the Philistines said, Lest the Hebrews make them swords or spears..."
4.20.2007 2:39pm
A. Zarkov (mail):
Max Weber wrote:

Today, however, 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. Note that "territory" is one of the characteristics of the state.

Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the "right" to use violence. Hence, "politics" for us means striving to share power, either among states or among groups within a state.
I interpret Weber to mean that the state defines the nature and use of force by individuals and institutions. He does not mean only the state can use force. He means the state is final arbiter of how and who can use force. Thus the state can prohibit convicted felons from carrying deadly weapons.
4.20.2007 2:42pm
Ken Willis (mail):
Not true that all Western Democracies allow self defense and not true that only D.C. has banned all guns in or out of the home.

England has essentially outlawed self defense and Australia nearly has. Chicago and New York City have gun bans just as draconian as D.C. Massachusetts has not banned guns in the home but if there is no gun already in the home there is no way to get it from wherever it is into the home without committing a felony, and if it is in the home there would be no way to get it anywhere else.

All these jurisdictions have provisions for permits, but only celebrities, retired cops and the politically connected can get them.
4.20.2007 2:42pm
htom (mail):
"Forgive me, but I'm old-fashioned. I like the idea of the state having a monopoly on the use of force."

I'm old-fashioned, too, and think that he should be allowed to like the idea. I think it's either laughable or insane that he wants to put the idea into practice, but if he wants to go unarmed, that's his choice. He's not allowed, though, to make that choice for others, or even, according to Gandhi, judge their decision.


Whilst I may not actually help anyone to retaliate, I must not let a coward seek shelter behind nonviolence so-called. Not knowing the stuff of which nonviolence is made, many have honestly believed that running away from danger every time was a virtue compared to offering resistance, especially when it was fraught with danger to one's life. As a teacher of nonviolence I must, so far as it is possible for me, guard against such an unmanly belief.

Self-defence....is the only honourable course where there is unreadiness for self-immolation.

Though violence is not lawful, when it is offered in self-defence or for the defence of the defenceless, it is an act of bravery far better than cowardly submission. The latter befits neither man nor woman. Under violence, there are many stages and varieties of bravery. Every man must judge this for himself. No other person can or has the right.

Source: The Mind of Mahatma Gandhi

4.20.2007 2:42pm
Ken Willis (mail):
Your friend who says he likes the idea of the state having a monopoly on the use of force may as well say he likes the idea of a police state. Police states often have vicious crime where ordinary citizens live in fear of the criminals and cops in equal proportion. So even police states don't have a monopoly, but Cuba probably comes close.

I'd be curious to know what your friend thinks of Castro, and I'd wager that he has no serious criticism of the man.
4.20.2007 2:55pm
K Parker (mail):
A. Zarkov,

Thanks for bringing in the actual quote from Weber. In light of it, my real issue isn't the question of force per se but that Weber clearly writes as if legitimacy flows from the top down, which is the exact opposite of how our Declaration of Independence (and, to a substantial degree, our Consitution) views it.
4.20.2007 2:57pm
18 USC 1030 (mail):
I remember reading, I think it was In Berman and Greiner The Nature and Functions of Law(?) that the government is the "legitimate monopoly of Coercive Force." Perhaps this is what your friend is thinking of, and misquoting?
4.20.2007 3:15pm
RAH (mail):
Logically Weber's statement violate the spirit of the American Constitution and Declaration which clearly states that."Governments are instituted among Men, deriving their just powers from the consent of the governed,..." So power and legititmancy to use force comes from the people. As such we,the people delegated certain tasks to the government but retain the right to abolish the government or take back the authority for certain tasks.

I always think this way about the execution of justice and the common saying that the common man can not take justice in his own hands. However we delegate that task to our police and courts to administer justice but we are always the ultimate authority and if the courts and police fail in their task then we can take back that task.

The idea of a citizen arrest is part of this.
One has to watch out for the underlying philosophy that the government has the god given right to rule and top down power flows to the citizens. That is not so,we rule and choose representatives and men to delegate such tasks as government functions. But we have the inherent right at any time to take them back. That is the underlying philosophy of our American system.

That is what sets us so apart from other countries including the English speaking ones.
4.20.2007 3:33pm
PDXLawyer (mail):
I don't think it works to say as Weber does that regulation of (or if you prefer, "monopoly over") the use of force particularly defines a "state" as a matter of practice. After all, states routinely regulate who can drive, who can hire whom under what conditions, what people are allowed to say, and just about everything else. Conversely, states have existed which do not regulate the use of force, even coercive deadly force, among family members, tribe members, etc. When you think about it, gun control laws are no more "central" to a state than family law.

I'd recast Weber's premise as:

"a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force ultimately defining legitimate conduct within a given territory."

What conduct the state regulates and how it goes about the enforcement tells you what kind of state it is. Many people assume that the perfect state is an administrative state, where the enforcement is done by full time, paid agents organized in a single heirarchy. Its a powerful model, and most successful modern states follow it to some degree. Of course, it is also an appealing model to those who work as full-time, paid state agents. But, it's basically a Civil Law notion (that is, based on Roman law) and we are basically a Common Law country (based on Germanic tribal law).

Maybe I'm too narrowly American, but like the Founders I'm wary of an administrative state which is too theoretically pure. They tend to run amok. Also, when heirarchies get too big, they quickly lose efficiency and networked organizations are required. We have lots of non-administrative elements in our constitution, including the 2d Amendment, and they seem to serve us pretty well overall. Weber's analysis seems to assume that an administrative state is the only viable type, and that, I think, is its weakness.
4.20.2007 3:33pm
Eugene Volokh (www):
But even if he meant coercive force, (1) lawful self-defense is often coercive -- you're trying to coerce (through actual physical force or its threat) the attacker to stop attacking you -- and (2) if "coercive" is somehow defined to exclude lawful self-defense, then the quote is irrelevant to concealed carry, which is also a matter of having tools available for lawful self-defense.
4.20.2007 3:34pm
eddie (mail):
Perhaps I am being a bit persnickety, but there is a great leap between affording citizens the right to self defense and the reasonable regulation of gun ownership.

And I would like to point out the highly anecdotal (perhaps apocryphal) tradition in the old west of relinquishing your firearms to the sheriff while in the town limits.
4.20.2007 3:39pm
18 USC 1030 (mail):
Prof. Volokh it would be irrelevant, the way I understand it the government has the legitimate monopoly of coercive force, meaning the right to deprive one of liberty. Sure there are situations where the individual may do this, i.e. self defense. But, there are situations individuals can't do this, i.e. murder or necessity. However, the government recognizes that right to self defense, thus bringing it under the government's legitimate monopoly. Keep in mind, this would apply to OUR system of law, where at least in theory, the government is the people.
4.20.2007 3:43pm
abb3w:
While not a monopoly, it would certainly maintain the dominant and most organized market share.
4.20.2007 3:59pm
Ric Locke (mail):
Balderdash. Even if one accepts the Weberian definition -- and those of us who are libertarians must, at least to some degree -- in the specific case of the United States of America the argument is at best moot and at worst absurd.

The first three words of the Constitution are "We the People." "The State" in the United States is every "person", which we have today redefined as "every citizen". Our police and other officials are not masters defining our conduct, not a nobility; they are garbage collectors, employees doing what we find cumbersome or inconvenient to do. The garbage collector is empowered to trespass, to violate our rights in a small way, in order to pick up the garbage cans. This does not permit him to violate our rights in other ways. The policeman is empowered differently, but the underlying facts are the same.

We the People are, collectively, the State. We are, each and severally, sovereign. That being the case, as citizens we are not "privileged" to be armed -- we are obligated to be armed in defense of the State (which is ourselves) and the general welfare. Approaching the idea from Weber's point of view doesn't change that, nor does the fact that most of us find it distasteful to perform that obligation and consequently prefer to pass it off to hirelings.

I realize that this is not the direction legal theory goes these days. So what? It's right, and current legal theory, focusing as it does on the jots and tittles of statist encroachment, is wrong. The farther it goes, the worse the contradictions get and the greater the tension between the Constitution and actual practice. Hard cases make bad law, says the adage. The converse is equally true.

Regards,
Ric
4.20.2007 4:23pm
A. Zarkov (mail):
H. Parker:

I agree completely. I am only trying to interpret Weber, not agree with him because I don't. I agree with you. The government can only use force to the degree the people want it to. The state is not supreme, the people are. However we should realize that people in other countries are more inclined towards Weber. This is one reason I object to the massive immigration we have now, both legal and illegal.
4.20.2007 4:27pm
RGT:
"xx:
In respect of concealed carry for professors, in one instance it was the professor who was the perpetrator in a mass shooting. See Valery Fabrikant, Concordia University, 1992."

Since Fabrikant wasn't entitled to CC (very few are in Canada) his actions are more like Cho's - he wasn't carrying for protection.
4.20.2007 4:32pm
betsybounds:
I think there is a well-established case history holding that the police cannot be sued for failure to protect citizens. See: http://home.pacbell.net/dragon13/policeprot.html

I'm no lawyer, but it seems to me that the only true test of whether we must rely on authorities for our protection would be our ability to sue them for their failure in the same regard. If we can't, then we have no recourse other than self-defense. I'm not sure this has anything to do with being either old- or new-fashioned--it's simply the actions of a free people in a free society. Which we flatter ourselves we live in, no?
4.20.2007 5:12pm
csl:
I personally wonder about the real added value of untrained civilians in crisis. Police officers, soldiers, and private security guards undergo a lot of training to learn the rules of engagement, what situations warrant lethal force. And more importantly, their training also means that when confronted with these situations, they know how to react. Is it possible to predict the behavior of untrained civilians in a confrontation?

To that end, I would have no aversion to an increase in "police auxilary" programs that some cities have, giving volunteers some basic training. I just think that the training for a concealed carry permit typically entails "defense of self", which is hardly the same thing as "defense of others".

To draw an analogy, even those trained in basic first aid and CPR break ribs or make errors in first response if it's been a while since the training. Those without training, even those who have "seen many people give CPR on TV" would be unlikely to risk trying to rush in to "do something".

While someone botching CPR can cause broken ribs, someone botching a defense of others with a gun could have worse consequences.
4.20.2007 5:26pm
Elliot123 (mail):
This isn't a theoretical question. Simple observation demonstrates the state does not have a monopoly on force. I would suggest the majority of force and violence is exercised by non-state actors.
4.20.2007 5:34pm
Karl Hallowell (mail):
csl, keep in mind that you can break ribs even when doing CPR correctly, but broken ribs are usually worth the increased chance of survival. My take is that even permitting ony trained people will result in some accidental shootings (not from negligence on the part of the shooter), but that the benefits outweigh this cost. Otherwise, I agree with your observation.
4.20.2007 6:20pm
Shelby (mail):
csl: I'm not sure about your analogy. In my advanced-first-aid classes I was taught that broken ribs are an almost inevitable result of properly performed CPR; it's just that the result is worth breaking ribs.
4.20.2007 6:22pm
betsybounds:
18USC 130:

This may be regarded as picking a nit, but I think the theory is not that in our system the government is the people, but rather that the government derives its powers from the just consent of the people. I would also point out that, under the Constitution and the theory from which it arises, the government does not recognize rights and powers of the people. It is, instead, the other way 'round: The people grant and recognize powers (and they are enumerated) to and of, respectively, the government. In other words, the people are in a priori existence with respect to the government. We may have strayed from this relationship as a practical matter, but I think this is the theory, anyway.
4.20.2007 7:10pm
Antonio Manetti (mail):
I'm not a lawyer, but as I understand it, the state's monopoly on the use of force pertains to retribution or the protection its citizens in situations other than self-defence. We don't allow individuals to serve as self-appointed policemen or to use force to extract vengeance.
4.20.2007 8:17pm
Sigivald (mail):
Prof Volokh: In re. 1), I was using "coercive" in the libertarian-theoretical sense (as I understand it), where compelling someone to cease violating your rights is not coercion qua the term of art.

(Coercion as initiation of coercion or use of force; someone trying to kill you or compel you by force has initiated coercion - making them stop is not a further "wrong" (more coercion), but a remedy (an end to their coercion), in that view.)

It might be better in one sense to specify two types of coercion, one "bad" (without consent and/or violating rights) and one "good" (through consent, such as the enforcement of a consensually agreed contract, or to cease the violation of said rights), but it's my sense from various readings in libertarian theory that that's not usually done.

(Better because clearer; not better because more long-winded, and the raw dictionary definition of coercion is easily amended by context to refer only to the "bad" sort.

Perhaps it's my philosophy background showing.)
4.20.2007 8:41pm
18 USC 1030 (mail):
betsybounds: Yes, that is what I meant, I just didn't type it out fully. Sorry.
4.20.2007 8:57pm
Seerak (mail):
I have always understood that the "monopoly on the use of force" is *legal* in nature, not physical; it is the legal structure which establishes that it is only the State's prerogative to maintain the civil order by means of en*force*ment of its laws.

This monopoly is *delegated* to the government by the people, out of the individual right of self-defense; the delgation of the monopoly is not a surrender of the right. As such, the monopoly is necessarily limited by two factors: the people's right to revolt against a State with totalitarian ambitions, and by the physical limits of the State's capability to exercise its legal monopoly.

When understood in this context of "delegation", it becomes clear that the concept of a state monopoly on the use of force is by no means incompatible with an individual's right to self-defense. Rather, the State's legal monopoly is a *means* to that end, a means of finite reach; why should it be seen as excluding the individual's prerogative where it does not and cannot apply?

Weber has that bit backwards; the State's monopoly is delegated to it by the people, not the other way around.
4.20.2007 9:21pm
Enoch:
I personally wonder about the real added value of untrained civilians in crisis.

They did pretty well on Flight 93.
4.20.2007 10:11pm
Joshua:
Ric Locke: We the People are, collectively, the State. We are, each and severally, sovereign.

Well if that's true, doesn't that also re-introduce the Fifth Amendment argument against lethal self-defense?

Under the Fifth Amendment, "No person shall be [...] deprived of life, liberty, or property, without due process of law". It is exceedingly obvious that killing someone in any context other than capital punishment, in self-defense or otherwise, does just that.

Now, this is not a Constitutional problem if the people are entities separate and distinct from the state, because the Fifth Amendment, like the rest of the Bill of Rights, is meant to be binding only on the state. But if, as Ric Locke argues, the people are the state, there is no such distinction. Would that not mean, then, that the people are, in fact, bound by the Fifth Amendment? Or to be more precise, that the state (and by extension, the people who make up that state) is responsible for the deprivation of an assailant's Fifth Amendment rights when one of its citizens kills that assailant in self-defense?
4.20.2007 11:29pm
MartyB:
"I like the idea of the state having a monopoly on the use of force."

Isn't this an indicator of a classic slave mentality? "Take my rights, just relieve me of this burdensome responsibility"

Paraphrasing a statement once made on the Senate floor, "you cannot take my people's arms and still tell them that they are sovereign."

What else defines sovereignty? The vote? Soviet citizens could vote. Iraqis under Saddam could vote. It is only when the vote is backed up by real autonomous power that it is meaningful. Washington, Jefferson and Madison understood this, I think.

Would your friend handcuff himself, and his wife and daughter, and put the family in the control of a random stranger because he trusts the stranger to "do right" and not take untoward advantage? You should remind him that governments are not godlike or divinely appointed. They are composed of individuals with all the failings of the rest of humanity, and an exaggerated desire to control others. Giving them the unrestricted power of life and death over the population will eventually- if not this century then the next- lead to horrors such as we have seen in other times and places.

The proper liberal position should be for a diversification of power, not a concentration of power. And the power to engage in effective struggle is the most basic power we know.
4.20.2007 11:48pm
Ric Locke (mail):
Joshua: Bah. Your concepts fall on two grounds.

First, "due process" does not, of necessity, mean subpoenas, robes, and lawyers arguing. That's why the word "due" is in the phrase. The function of the rituals is to discover as many as possible of the relevant facts of the case in order to render judgement post facto.

While the act is in progress all the participants have all the relevant facts immediately before them, and don't need either Perry Mason or Hamilton Burger to elucidate, let alone both of them. The process that is due on the part of the (prospective) victim when attacked is much more abbreviated than even Judge Judy requires.

And second, the Constitution does not define the State; it defines the Government, the folks We the People have delegated to do the dirty work so we can go about our business. Hiring somebody to collect the garbage does not relieve us of the responsibility to maintain sanitary conditions; it only means that we prefer to pay money than to perform the necessary acts with our own hands. The contract made with the garbage collector is highly likely to spell out things the collector can and cannot do which are not binding on the person hiring his services. The clearest example of that today is the contrast between bounty hunters (private citizens) and civil police. You could look it up.

Regards,
Ric
4.21.2007 12:04am
Joshua:
Ric Locke: First, "due process" does not, of necessity, mean subpoenas, robes, and lawyers arguing. That's why the word "due" is in the phrase. The function of the rituals is to discover as many as possible of the relevant facts of the case in order to render judgement post facto.

While the act is in progress all the participants have all the relevant facts immediately before them [...]

Uh, no, they don't, not necesarily. In a situation like that, they usually have to act quickly before all the relevant facts are known. What if the incident turned out to have been a misunderstanding - say, the cell phone in your hand being mistaken for a gun?

And second, the Constitution does not define the State; it defines the Government.

But who makes up the government? The people. And government is, in addition to the roles you have listed, also an arm of the state. If "people" vs. "state" are indistinguishable, then so is "people" vs. "state" vs. "government".
4.21.2007 12:26am
MartyB:
quote:
"... if, as Ric Locke argues, the people are the state, there is no such distinction. Would that not mean, then, that the people are, in fact, bound by the Fifth Amendment? Or to be more precise, that the state (and by extension, the people who make up that state) is responsible for the deprivation of an assailant's Fifth Amendment rights when one of its citizens kills that assailant in self-defense?"
----

People are only allowed to shoot someone to save innocent life from imminent threat. So.. the person would be in exactly the same position as a policeman who (bound by largely the same rule) shoots to keep himself or a hostage alive. The policeman is unarguably an agent of the state. So are you saying that cops (or people) are constitutionally bound to stand by and collect evidence while innocents are being killed (say, at Columbine) in order to safeguard the precious constitutional rights of the assailant? The ACLU might go for it, but normal humans- and even judges- you're gonna have trouble with.
4.21.2007 12:58am
Joshua:
Ric Locke and MartyB: I should clarify that I don't expect lethal self-defense to ever become illegal on constitutional grounds. If there's a conflict with the Fifth Amendment, it may be remedied merely by compensating the dead man's next of kin (similar to the way the survivors of wrongfully executed people are compensated).

On the other hand, such a conflict conflict would complicate matters greatly when the issue of self-defense as a U.S. constitutional right eventually comes before SCOTUS (as it undoubtedly will, sooner or later).
4.21.2007 1:15am
jvarisco (www):
The traditional definition of a state is an entity that possesses a monopoly on the legitimate use of force within its borders. This is accurate. I think the question relates to legitimacy. Ideally (at least to many people) the state restricts this force to the police army etc. Unfortunately, sometimes the authorities are not around - and in such cases the state can then legitimate force by individuals. But that is only because the state is unable to control violence adequately - for example, if the state could be 100% sure that no illegal guns would exist, it could then ban guns. As nobody but police had guns, everyone would be a lot safer. It is possible that some people might value other things (e.g. civil liberties) more than safety, but many do not.

People might make the argument that citizens need guns to protect themselves from the state, also. But this is nonsense. I don't think anyone really believes a handgun (or anything else any person might possess) has any chance of doing such a thing. The state may choose not to exercise its authority in any given case, but no one can pretend that the ability is not there. If you try to use violence against the government, you will lose. This is a fact. And the clear consequence of such attempts is seen in Iraq today. I think all of us are very happy that, with notable tragic exceptions, our state has very good control over violence within our borders.
4.21.2007 1:54am
Ric Locke (mail):
What if the incident turned out to have been a misunderstanding - say, the cell phone in your hand being mistaken for a gun?


I said the facts were before them, not that they were all taken account of. Failure to determine whether the threat is real or not -- that that's a gun, and not a cell phone, or the reverse -- is a violation of the due process required in that particular venue. Other violations are possible. It's just that the process that's due does not involve lawyers, judges, bailiffs, court reporters, &c. &c. Persons who wish to use deadly force for any purpose need to fulfil all kinds of requirements -- proper identification and classification of the threat, taking steps to insure innocent bystanders aren't hurt and property damage is avoided, a gazillion others. Thinking of them as "due process" avoids emotionally loaded terms like "trigger-happy" and the like.

MartyB almost makes a good point, but confuses it with the statist interpretation that's all the rage nowadays. In fact the restraint on the policeman is greater than that on the nonpolice citizen, by virtue of the terms of the contract by which citizens authorize the policeman to act on our behalf; that is, the Constitution. The State is an abstraction. To the extent it exists in concrete terms, it is as the vector sum of the acts of the citizenry. The Government is a corps of hirelings, contracted by the citizenry to do things the citizens are both empowered and obliged to do but find awkward, distasteful, or time-consuming. Conflating "State" and "Government" is a stupid error that generates both bad law and bad behavior.

Regards,
Ric
4.21.2007 2:54am
Joshua:
Ric Locke: The Government is a corps of hirelings, contracted by the citizenry to do things the citizens are both empowered and obliged to do but find awkward, distasteful, or time-consuming. Conflating "State" and "Government" is a stupid error that generates both bad law and bad behavior.

Except that, again, those hirelings are citizens themselves. (At least, I should hope they are.) They don't cease to be citizens just because they work for other citizens, nor do they have any less a stake in society than the rest of us. If citizens and the state are to be conflated, then I fail to see how one can avoid conflating government with either, so long as that government is composed of those same citizens.

That's my last post for the evening. I'm finally getting somewhat sleepy, and in any case playing the VC's resident devil's advocate takes a lot out of a person. 'Night all.
4.21.2007 3:29am
Ric Locke (mail):
...those hirelings are citizens themselves....They don't cease to be citizens just because they work for other citizens, nor do they have any less a stake in society than the rest of us.

Fooey. Law, both letter and case, is rife with instances of people giving up rights and privileges under contract. The clearest instance is that of soldiers, who explicitly give up the right to a broad range of political activity when they join up, but it goes all the way down to the ridiculous -- McDonald's can quite reasonably require that its cooks give up the right to go around with traces of strong ethnic spices on their hands.

A person who swears to "preserve, protect, and defend the Constitution of the United States" does not gain rights. He loses rights and gains privileges, and both conditions are specified in his employment contract, which is the Constitution.

Regards,
Ric
4.21.2007 11:43am
NatSecLaw Prof (mail):
The assertion that the state having a monopoly on the use of force is old fashioned is revisionist history at its worst. Certainly America's founding fathers never envisioned it. Maybe if you are an old-time socialist it seems old fashioned. Our tradition of the individual is that you, and not the state, are primarily responsible for putting a roof over your head, putting food on the table, providing for your family, and providing for your and their security. That is still true even though we (through our elected representatives) have decided to provide housing assistance, food stamps, and sheriff's patrols. But, if a burglar enters through your unlocked door or a rapist succeeds because you aren't armed, it is not the government's fault. It is the bandit's fault and your responsibility.
4.21.2007 2:52pm