OSD 238: Throw me your rights, it’s an emergency

Why emergency response is helped, not hindered, by people’s liberty.

On Friday, Lujan Grisham, the governor of New Mexico summarily banned all gun carry in Albuquerque and the surrounding county.

First, the details on what actually happened.

As written in the order announcing this move, Grisham couched it in public health terms:

Whereas, the New Mexico Department of Health possesses legal authority pursuant to the Public Health Act, NMSA 1978, Section 24-1-1 to -40, the Public Health Emergency Response Act, NMSA 1978, Sections 12-10A-1 to -19, the Department of Health Act, NMSA 1978, Sections 9-7-1 to -18, and inherent constitutional police powers of the New Mexico state government to preserve and promote public health and safety, to maintain and enforce rules for the control of a condition of public health importance

…

gun violence and drug use constitute conditions of public health importance, as defined in NMSA 1978, Section 24-1-2(A)

The order is sweeping. In all counties that exceed a certain violent crime threshold (which only Albuquerque’s county meets), it bans the possession of guns outright (except by police, naturally). Then it creates some narrow exceptions to the ban:

• When you’re on private property that’s yours or where you have the express permission of the owner

• When you’re at an FFL or gunsmith

• When you’re at the range

• When you’re traveling between any of the above locations, provided that the firearm is locked up while in transit

That’s it. According to the governor of New Mexico, it is now otherwise illegal to possess a gun in Albuquerque.

Lastly, the order closes with this bit of banana republic cosplay:

This Order shall take effect on September 8, 2023, and remain in effect for the duration of the public health emergencies declared in Executive Orders 2023-130 and 2023-132 and any subsequent renewals of those public health emergency declarations, unless otherwise rescinded.

Welcome to the permanent emergency.

To get the obvious out of the way: yes, this is performative. The order barely even pretends to care about the law, and the courts will barely pretend to review the governor’s reasoning before they strike the order down. It’ll be gone in a few months and mocked until then. The winners will be some lawyers and the governor’s social media manager. The losers will be taxpayers, the gun nonprofits who have to rack up billable hours getting this undone, and the few poor souls who might get rung up for violating the order (although the Albuquerque police chief has already said he won’t enforce it).

So it’s not worth spending too much time analyzing this particular order. Of course a gun control governor does stuff like this, of course gun rights groups fight it, and of course it gets struck down. End of analysis.

The part that is worth analyzing is the break-glass option the governor used here: emergency laws. Why do they get used like this? Why is it that in every country where you find a dictator with a uniform covered in medals, you find a law declaring a permanent state of emergency? And what does that have to do with gun rights?

Suppose you’re the county commissioner of Smalltown County. A tornado hit town yesterday and destroyed Main Street. Your phone won’t stop ringing. The fire department has blown through two years’ worth of supplies. The police are all pulling overtime, much more than the council had budgeted for. You need to divert a lot of money and resources, but the normal procedures for that are deliberately slow in order to prevent corruption and promote transparency. Public hearings, votes, review periods — it’ll be a year at the soonest, and that’s if nobody decides to fight it.

The county council, in its wisdom, foresaw this problem and passed a law a hundred years ago that says when there’s a state of emergency, in the interest of speed you can bypass the normal procedure and do whatever it takes to solve the problem. They drew some limits around that, and use your best judgement and operate in good faith they said, but in an emergency you’re empowered to move quickly.

It’s difficult to find a flaw there.

Ok, so here’s another example. Suppose it’s 1942, you’re the president of the United States, and the country is at war with Japan. You get the idea that it would be bad if a Japanese spy was operating on the US mainland. Or if two Japanese spies got into the US mainland. Or three, can you imagine, three spies operating in the US mainland. To stop that existential threat, you decide the sensible thing is to imprison almost every American with Japanese blood (and all Japanese immigrants, naturally) in the continental US.

The normal procedures for that are deliberately slow in order to prevent corruption and promote transparency. Public hearings, votes, constitutional amendments — it’ll be a year at the soonest, and that’s if nobody decides to fight it.

The Supreme Court, in its wisdom, takes a look at this plan and assures the country via a 6-3 vote that while ordinarily the justices wouldn’t go in for this sort of thing, given the nature of the emergency let’s take the Japanese people first and do due process second.

It’s not difficult to find a flaw there.

So what changed?

Centralization is an information problem. Decentralization doesn’t have to be a moral preference. Although it certainly can be, you usually don’t even reach the moral question before you hit the practical one — centralized systems can’t gather enough on-the-ground information to make good blanket decisions at scale. In a small county, you might have enough info to make good decisions in an emergency. The sheriff, fire chief, county commissioner, and all the people below them comprise a team of maybe 25. That’s small enough that everyone can know what everyone else is doing and what everyone else needs. And that’s if things are working well.

A network of two people has one possible line of communication. Here’s how that scales:

• 5 people: 10 lines

• 10 people: 45 lines

• 100 people: 4950 lines

• 1000 people: 499,500 lines

• 10,000 people: 49,995,000 lines

For a governor making laws that affect a society of millions, the purity of their intentions doesn’t even matter. They could be pure at heart or they could be intent on becoming dictator for life. The result is the same: they can’t know enough to make good decisions at scale. Least of all in an emergency — if centralized systems have poor state awareness in normal times, that problem only gets worse in a crisis.

So it’s not that moving fast is bad. Quite the opposite. In an emergency, speed saves lives. But you have to move quickly in the right direction. And the bigger the centralized decisions are in an emergency, the more likely they are to be moving lightning-fast in a wrong direction. A crisis is when you want the private individuals and businesses closest to the problem moving quickly, talking frequently, and adapting as they go. Large systems can’t do that.

It’s ironic that the governor targeted gun rights with this “emergency”, because the entire premise of gun rights is to take “more urgency -> more decentralization” to its extreme. In the very worst emergency, the best lifesaver is the most decentralized one of all: you, the individual.

We often cite an Antonin Scalia quote where he describes the impossibility of lawmaking in America as a feature, not a bug:

The real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary. But there’s a lot more.

There are very few countries in the world, for example, that have a bicameral legislature…. Very few countries have two separate bodies in the legislature, equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.

Very few countries in the world have a separately elected chief executive. Sometimes I go to Europe to talk about separation of powers, and when I get there, I find that all I’m talking about is independence of the judiciary. Because the Europeans don’t even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries, the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick him out. They have a no-confidence vote, a new election, and they get a prime minister who agrees with the legislature.

The Europeans look at [our] system and they say, “Well, it passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. It passes both and then this president who has a veto power vetoes it.” They look at this and they say, “It is gridlock.”

And I hear Americans saying this nowadays. There’s a lot of it going around, they talk about “a dysfunctional government” because there’s disagreement. And the framers would have said, “Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power, because the main ill that beset us, as Hamilton talked about in The Federalist when he talked about a separate senate, he said, ‘Yes, it seems inconvenient. But inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.’”

If that’s true at any time, it’s most true in an emergency.

---

This week’s links

Lucas Botkin on gun gear and fiscal responsibility

Reminder that gun ownership is about living a long and full life, and statistically, you’re much more likely to run into financial problems than violence problems. Don’t stretch to buy fancy gear.

“Cypherpunks Write Code”

A Reason documentary about the cryptography battles of the ‘90s and ITAR’s then-ban on posting encryption code online.

---

OSD Discord server

If you like this newsletter and want to talk live with the people behind it, join the Discord server. The OSD team and readers are there. Good vibes only.

---

Merch

Gun apparel you’ll want to wear out of the house.

---

Office hours

If you’re a new gun owner, thinking about becoming one, or know someone who is, come to OSD office hours. It’s a free 30-minute video call with an OSD team member to ask any and all your questions.

---