Should Gun Laws, or Any Law, Punish or Prohibit?

Laws don’t stop people from tresspassing or stealing. A moment’s thought will tell you that’s true. They don’t prevent murder either.

So why the clamor for “tougher gun laws” after a high profile incident like Aurora, CO?

In part, it’s scale and location. Sabotage a car so it crashes and it’s reported locally. But set off bombs on trains in Madrid? Poison your spouse and it’s a piece in the local paper. But release sarin gas in the Tokyo subway? If a Chicago banger kills an infant in a drive by, it might not even make the front page. But kill 12 in a suburban theater?

Lawful people try to make sense of tragedy. We do things for reasons and want to understand why the lawless do what they do. But the lawless don’t follow rules or laws; they’re lawless. They may also be truly insane or duped by idealogues or something else. We may even learn their reasons eventually. But having an explanation and understanding a motivation are not the same.

What’s important is to recognize that whatever else they may be, they are lawless. And once one realizes laws don’t influence the lawless, then it follows that trying to prevent any behavior by force of legislation is foolish. As is often said, one cannot legislate morality.

It’s the nature of laws.

There are only two types of law; punitive and prohibitive. Punitive laws are moral and prescribe a punishment for violating the rights of another. We don’t have laws making murder illegal, for example. Instead, we have laws for what we do to you if you murder.

Punitive laws are regarded as moral and just by almost everyone. Who doesn’t understand it’s bad if someone steals from us or kills us. The lawful, because they are lawful, are not impacted by these laws. Their morality, embodied in the law, keeps them lawful and the issue of punishment isn’t ever really an issue.

But the lawless, by definition, aren’t deterred by law – moral or otherwise.

Therein lies the issue. Moral laws don’t keep the lawful on the right path or keep the lawless from the wrong one. They don’t control behavior because they can’t. No law can. Control is a personal, internal matter. Which brings us to prohibitive laws.

Prohibitive laws are quite different. They are capricious and separate from any moral consideration of a violation of the rights of another. They make behavior that was perfectly acceptable yesterday unacceptable today. They actually create criminals and the lawless; they don’t reduce their ranks.

They are about control, not prevention.

Gun laws are an excellent example. What is immoral about a two shot derringer or a fully automatic AR-15? They are objects and, therefore, morally neutral. A lawful man doesn’t use either to murder because he obeys the moral laws concerning Life, not because there’s a law that kept them from him.

The lawless, unconstrained by morality or whatever deterrence exists in punitive laws are not stopped by so inconsequential a thing as a prohibitive law either. He desires to kill and will find the most efficient means he can to do so, even if it’s not legal for him to have.

This is not splitting hairs. It’s intrinsic to our understanding of the Rule of Law.

Punitive laws work. We can joke about Texas’ approach to Capital Punishment; “If you kill here, we kill you back!” But it’s the most moral and effective approach if your goal is to protect Life.

No prohibitive gun law ever passed kept a lawless man from using a gun for murder. If they did then Chicago and D.C. would be the safest cities in the nation. If they did we could give guns away without fear. After all, there’s a law, right?

But we know that’s wrong. The truth is, we know the lawless exist. We know no law will stop them. We know laws are actually the worst way to try to do so.

So why does government so often choose the least effective solution when trying to protect you? Why so many calls for stronger gun laws in the aftermath of Aurora? If the goal is to keep us safe, why not use the best tactics and strategy possible to accomplish that task? In fact, why use prohibitive laws at all?

I’ll have more thoughts on this in a day or two.