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

Alexander R. Cohen miscsubs at arclights.net
Fri Apr 10 20:54:08 PDT 2009


Suppose the purpose of the right to bear arms is to defend oneself against aggression by individual criminals. A nuclear weapon is utterly useless for this: If a man is coming at me with a knife or gun, any nuclear attack on him will also kill me. A handgun or machine gun does not have this problem: I can reasonably hope to shoot the aggressor and survive. The purpose of the right gives us a strong reason to draw the line somewhere between a machine gun and a nuclear weapon, reserving the latter to the government.

 

Similarly, if the purpose of the right is to defend oneself, one's state, or the whole country against tyranny (should the need arise), nuclear weapons are probably useless. If the attempt is to replace the federal government, the would-be revolutionaries need to minimize the killing of the people they wish to govern -- and whose rights they think they are defending. If the goal is secession, the leaders of the would-be new nation need to be able to make peace with their neighbors, and the federal government needs to protect the people over whom it seeks to reestablish its authority. Thus it seems unlikely (though not impossible) that nuclear arms would suit the purposes of either side. In any event, I would expect a strong preference for guns by both sides in either sort of insurrection. So again, the purpose of the right gives us at least some reason to exclude nuclear weapons.  

 

ALEXANDER R. COHEN, J.D., M.A.

Doctoral student in philosophy

University of Virginia

 

 

 

 

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Friday, April 10, 2009 9:59 PM
To: conlawprof at lists.ucla.edu; Eugene Volokh
Subject: Re: "Monopoly of the State over violence" and gun rights supporters' slippery slope concerns

 



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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