"Monopoly of the State over violence" and gun rights supporters' slippery slope concerns

[Paul Finkelman]

the logic of this is that all citizens should have their own nuclear weapons to protect themselves that the sate has. And tanks, and who knows what else.
----

Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



pfink at albanylaw.edu



www.paulfinkelman.com

--- On Fri, 4/10/09, Eugene Volokh <VOLOKH at law.ucla.edu> wrote:
From: Eugene Volokh <VOLOKH at law.ucla.edu>
Subject: "Monopoly of the State over violence" and gun rights supporters' slippery slope concerns
To: conlawprof at lists.ucla.edu, paul.finkelman at yahoo.com
Date: Friday, April 10, 2009, 9:51 PM




 
 






            Gun rights supporters often warn that those who oppose
the right to possess (say) handguns or assault weapons would likewise try to
ban all guns, and for that matter oppose self-defense rights as well.  Gun
control supporters often pooh-pooh that.  But if the argument in favor of gun
control is that the state has a monopoly over violence, then it seems to me
that gun rights’ supporters are right.  After all, private possession of
shotguns for self-defense interferes with the state’s monopoly as well, since
shotguns can be used for violence – it’s reasonable to infer that those who
rely on the “monopoly over violence” argument would soon push for total bans
(at least as soon as they feel politically comfortable doing so).  Likewise,
even unarmed self-defense, or self-defense armed with whatever impromptu weapons
are at hand, interferes with the state’s monopoly over violence. 

   

            To be sure, Calvin began with nuclear arms, as to which
I’m happy to leave states with a monopoly.  But he then quickly moved to AK47s,
on the grounds that the difference is “just [an] issue[] of degree.”  Well, the
difference between AK47s and shotguns or typical rifles is an issue of even
smaller degree.  And the difference between self-defense with a shotgun and
with a kitchen knife is likewise an issue of degree, especially when the
underlying principle is the state’s supposed monopoly of violence (since that
is implicated by all these forms of violence). 

   

            In fact, the notion that the State has a monopoly over
violence has always been rejected by American law.  First, and most clearly,
American law has always allowed violence in self-defense, including when
necessary lethal violence.  Second, even setting aside the debates about the
Second Amendment (which either the individual rights view or the states’ rights
view keeps the federal government from having a monopoly of violence), at least
40 of the 50 state constitutions secure an individual right to keep and bear
arms in self-defense. 

   

            Now if one argues that the state has a monopoly over punitive
violence aimed at avenging past misconduct (as opposed to violence aimed at
self-defense against imminent attack), that would be much more in keeping with
American law (though even there it’s not clear quite how much of a monopoly was
contemplated for the federal government).  But if that’s so, then an
individual right to keep and bear arms in self-defense would be entirely
consistent with that principle. 

   

            Eugene 

   

Calvin Johnson writes: 

   

Issues are the same for Arm's Control and Gun Control.  Does not North Korea, Iran and NW provinces of Pakistan also have right to nuclear weapons, for defense only of course, against Isreal and US?   If we are serious that individuals must have arms to deter Federalis, should we not provide the nuclear arms as well?   It is after all the right to bear arms that we are talking about.    On the merits I think I am comfortable with what [Weber] called the monopoly of the State over violence.   At least as to nuclear violence.    The differences between AK47s and nuclear arms are just issues of degree.           Let me also remind what we are talking about: Columbine, Texas Tech, Birmingham, Pittsburg, Going Postal.               Right to Bear Arms in original intent was right to be drafted, with Quakers exempted.  You do have a right to serve on Jury.  But we think of it as a duty in our current language.   Right to
 Bear Arms did not include the need to have individual AK47s and Nuclear arms, even in theory.     



 

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