McVeigh and right to bear nukes.
chjohnson at MAIL.LAW.UTEXAS.EDU
Thu Jan 11 17:49:43 PST 2001
Now I am confused. And neither successful deterrence or failing deterrence
make any sense to me.
I would have thought that the deterrence against tyranny was supposed to
wrok. For crime we stop deterrence becasue it becomes too expensive. It
takes more cost than good to stop it entirely. But if it tyrrany we need
to stop, then maybe we will incur any cost to stop tyrrany. And the point
is to stop it. Not fail to deter it. I would think for the rationale of
the 2d Amendment, the deterrence should succeed.
The federal government is sort of hard to deter. It for instance won
Desert Storm not long ago. The deterrence lined up on the other side was
small arms and tanks and Scud missles and even credible threats of aerosol
disbursal of Ebola virus and crude but dirty nuclear weapons. Next time,
the deterrence has to work. For deterence to work against the tyrranical
Federalies, the bearer of the arms right needs to have more power than
On the other hand, the argument is that a successful deterrence is
absurdly big -- too much power in the hands of the arms rights bearer for
any rational society to tolerate. So we will a posit a deterrence that
does not work.
Why bother? Why nuke people off if it does not stop the tyrrany. The big
problem with massive retaliation as a credible threat has always been there
is no rationale for destroying the world once massive retaliation has
failed. It is irrational to use a failed deterrence.
What is this deterrence supposed to do? Is it supposed to win (be very
big) or lose (and be useless)? Both hit me as silly.
Or is "deterrence" just a symbolic word without content? How are we to
calculate the mettle of this proferred right if we dont know what people
are talking about? Are they hiding something in the reeds of ambiguity,
where a clarity one way or the otehr would be laughable?
At 02:29 PM 01/11/2001 -0800, you wrote:
>We speak of deterrence even when the deterrence may not completely eliminate
>the activity we seek to deter. For example, one purpose of criminal
>sanctions is to deter crime, even though we know that criminal sanctions
>will not prevent all crime.
>Mark S. Scarberry
>Pepperdine University School of Law
>mark.scarberry at pepperdine.edu
>From: Calvin Johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
>Sent: Wednesday, January 10, 2001 1:10 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: McVeigh and the single case refulation of the arms right.
>I dont understand Mark's argument, even a little bit. "Deterrence" as in
>nuclear deterrence means, sure Moscow can drop a bomb on us, but we will
>wipe them and every one of their present and future heirs off the map.
>Thus the "fruit" of their bombing us, to use Mark's wonderful sense of
>understatement, "will not be so sweet." For deterrence to work, the havoc
>must be commenserate to the action. Thus if all the police are trying to
>do is enforce a pooper scooper law, then shooting off a knee cap might well
>deter the police. If it is real tyrrany that is to deterred, however, then
>the nuke seems to be required. If the deterrence is not supposed to be
>really effective then well the retaliation might well be nonserious. As a
>matter of linquistics, however, I doubt that merely irritating
>ineffectively deterring violence, such as dead people in the suburbs,
>should be called deterrence if it is too small a retaliation against the
>Federal government to be effective.
>At 12:11 PM 01/10/2001 -0800, you wrote:
>>Even the possession of less than military equivalent arms by the populace
>>may deter tyranny. Massive military force is not always useful when one
>>wishes to rule a city (for example) rather than destroy it. (Note that
>>police typically do not carry hand grenades.) And pistols and non-automatic
>>rifles in the hands of the citizenry can make a tyrant's job in maintaining
>>rule very difficult. One need not necessarily be able to defeat a tyrant in
>>a pitched battle in order to deter tyranny; it may be enough if potential
>>tyrants are brought to an understanding that the fruit of any seizure of
>>power will not be sweet. That is why the deterrence rationale can coexist
>>with reasonable limits on arms possession by the citizens.
>>Mark S. Scarberry
>>Pepperdine University School of Law
>>mark.scarberry at pepperdine.edu
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
More information about the Conlawprof