OSD 233: What about nukes?
And why the answer to that question doesn't matter.
The world’s best-selling intro to economics textbook, Gregory Mankiw’s Principles of Economics, opens with a list of ten principles. The third one is relevant for us: “Rational people think at the margin”.
Rational people know that decisions in life are rarely black and white but usually involve shades of gray. At dinnertime, the question you face is not “Should I fast or eat like a pig?” More likely, you will be asking yourself “Should I take that extra spoonful of mashed potatoes?” When exams roll around, your decision is not between blowing them off and studying twenty-four hours a day but whether to spend an extra hour reviewing your notes instead of watching TV. Economists use the term marginal change to describe a small incremental adjustment to an existing plan of action. Keep in mind that margin means “edge”, so marginal changes are adjustments around the edges of what you are doing. Rational people often make decisions by comparing marginal benefits and marginal costs.
So it’s not surprising that this is generally how people approach gun laws — a step-by-step walk starting from their current position. People often change their minds, but they do it in increments. Getting comfortable with ARs, then standard-cap mags, then concealed carry, and so on. They vary in how quickly they run through those steps (we all have a friend or two who in a few months went from no guns to having an armory), but it always happens one marginal step at a time.
Some gun people worry this cuts against the principled case for gun rights. If you believe that gun rights are just a corollary to a general right to self-govern, then you might also believe in little-to-no limit on the kinds of weapons the government can tell you you’re not allowed to own. And if that’s your belief, then the view that prevails in courts today — that gun rights are only about personal self-defense against non-governmental criminals — seems like it keeps you stuck in a local maximum.
Kostas Moros, a lawyer who’s currently working on the lawsuit against California’s imposition of background checks on ammo purchases, made this case on Twitter a few days ago:
If the wave of district court rulings upholding AWBs and mag cap laws teaches us anything, it’s that we can’t expect to win when we shy away from the full purpose of the Second Amendment. If we say it’s mostly just about self-defense, then it’s quite easy for a district judge who is already hostile to us to say, “Well, you can defend yourself pretty adequately with a handgun with ten rounds, what’s the problem?”
Yes, personal self-defense is important, perhaps even "central". But the amendment was added primarily because revolutionaries were worried about the new government they were forming becoming tyrannical. Dozens of sources from the founding through at least 1900 confirm this. Self-defense was seen as obvious and implicit, but the idea of an armed citizenry as a failsafe against tyranny was new at the time.
Small arms that constitute combat weapons aren’t unprotected, they are the most protected.
I realize that in modern times, a few lunatics have used such firearms to commit unspeakable evil. That’s a cultural sickness we have to deal with as a society. People certainly could have done public mass shootings with revolvers and repeating rifles 150 years ago, but they generally didn’t outside of warfare. The riddle needs to be solved, but the answer is not surrendering our natural rights.
This implies two things (Kostas, please give a shout if this is misrepresents your view):
The principle that gives rise to gun rights also gives rise to a right to small arms and light weapons generally.
The right to those weapons is being quashed by today’s dominant framing of gun rights being about private self-defense.
If you believe in the underlying principle, then 1 and 2 seem indisputably true. Which might seem like bad news. But in the end, does it actually matter?
There’s a Paul Graham quote that we cite a lot around here (including as recently as two weeks ago) that the definition of property is just a reactive description of what’s feasible to call private property — normative views of what should be property end up not mattering as much as the facts of what can be property:
The funny thing is “what is property?” historically has been somewhat defined by what’s convenient to be property. In the days of hunter-gatherers, it was not convenient for land to be property. But now it is, so now land is property.
If you imagine that we lived on the moon, and we had to get air in pipes and paid for the air, people could charge for smells. People could charge for good smells. So it would seem reasonable for smells to be property. But [today] you walk by a restaurant and you smell this delicious smell — you get this free boost, for nothing.
I think the record labels are like these people who are from the moon. They used to be able to sell these things, because the only way you could get them was through their channel. But now, files move around like smells and it’s just not convenient to charge for them. Ultimately, this stuff is pragmatic.
That’s how gun rights shake out too. (See “OSD 106: Law is a verb” for more on that.) Starting from today’s status quo, questions at the margin — are AWBs and mag capacity bans constitutional, is the NFA constitutional, etc. — are absolutely gated on what courts think about them. So yes, legal work to nudge out today’s margins does make a difference.
But if you want to think way beyond the margins, and you’re worried that those marginal battles keep you trapped in a local maximum, then the descriptive-over-normative model of gun laws should be good news to you.
To be specific: in a scenario where you need light weapons (or, to take it to the theoretical extreme, nukes), would laws actually get in your way, whatever they are? That would be by definition a situation where the law no longer matters. Insurgencies and war-making efforts succeed or fail for lots of reasons — and “darn it, the government said we’re not allowed to have RPGs” is never one of them.
“What about nukes” is an interesting theoretical question. In practice, the idea behind it never matters. If you reach a situation where it’s useful to have weapons way outside of today’s status quo, that’s exactly the situation where you’ll to be able to acquire those weapons no matter what the law says.
So for taking care of gun rights today, the most effective strategy is to keep thinking at the margin and keep nudging those margins out. That strategy has been steadily working for 30 years. Concealed carry is now the law of the land in all 50 states, body armor and NVGs are all over YouTube, the 3D printing cat is out of the bag, and fire-by-wire is on the horizon. And the wins are accelerating. Keep at it, and let the magic of compound growth do its work.
This week’s links
Judge Don Willett of the Fifth Circuit signals that he thinks the barrel length provisions of the NFA are unconstitutional
Willett’s concurrence is on page 41 of the PDF linked above. The Reload covers it in a member-exclusive piece:
“Remember: ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment. Congress might someday try to add heavy pistols to the NFA and the GCA, but it hasn’t yet. These pistols are therefore lawful”, Willett wrote. “Adding a rearward attachment — whether as a brace or a stock — makes the pistol more stable and the user more accurate. I believe these distinctions likely have constitutional significance under Bruen.”
Smarter Every Day on how metal stamping works
For you MP5 fans out there.
Ninth Circuit rules that Hawaii’s butterfly knife ban violates the Second Amendment
When you were reading law books, I studied the blade.
Hit piece about the NSSF
The A/B tests to find a new gun industry bad guy continue. (See also: “The Submarine”, an explanation of how PR placements work.)
The NSSF is the gun industry’s trade group, and this article blows the lid off its sinister plot to … promote the industry.
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The purpose of the 2nd Amendment ultimately lay in preservation of the "armed citizenry", a social institution of long-standing in England and its colonies by the time of the founding, and the amendment therefore ultimately supports the private ownership of small arms and light weapons, and probably also surface to air missiles, tanks, &c. For most people, though, small arms and light weapons are by far the most relevant items.
Sometimes people argue that the "well-regulated militia" of the 2nd Amendment should mean something to do with regulation of ownership, but when I've talked with them about the details, they didn't realize that militia didn't generally own or issue weapons, or that the militia relied on people to provide arms and equipment of every description, including food, uniforms, &c. Many such people treat "militia" as a synonym for "army" and so fail to appreciate the pervasiveness and importance of the armed citizenry as a complement to the government in those times. A discussion of the situation in the colonies is offered in a quite readable paper by James Lindgren: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=692421
However, I think we make a mistake on our side when we put the focus on "fighting a tyrannical government". The common law militia that the founders inherited was ultimately a large body of private people with private weapons of military capability; and it was quite capable of fighting the government; but it was also capable of other things and was ultimately organized for the common defense. A significant problem in the colonies, as Benjamin Franklin's auto-biography makes clear, was government inaction -- a failure to provide defense when it was needed. This problem was tractable and manageable, though, because the citizenry were not hampered from arming themselves and organizing for this purpose. (Franklin's autobiography discusses his efforts in concert with other citizens to establish a company of infantry and a company of artillery, which were later recognized by the governor of the Pennsylvania colony; and much later, became National Guard units.)
We should always remember that the militia was rooted in a prosocial duty, shared by citizens of all nations, of being the ultimate backstop of peace and security. The militia worked in concert with the government and were recognized by it, frequently being accorded places for training, positions in public parades, and various privileges relative to each other in acts passed by the colonial legislatures (some of which remain, in some degree, in force, as in the case of the Ancient and Honorable Artillery Company of Boston, Massachussettes). During the Revolutionary War, it is undeniable that the citizenry fought tyranny, but neither the history of the armed citizenry nor of the militia begins or ends with the Revolutionary War. They are ultimately rooted in a recognition, so important to the English and subsequently American tradition, of a complementarity of government and society.
"What about nukes" indeed. If you have a nuke or can get a nuke, you graduate to a state-level actor and are instantly unbound from the local rules and laws. It's instantly immaterial.
It would be more impactful to talk about surface to air missiles and anti-tank weapons.