A Freedom Under Fire; R. Cooney

The deliberative person, if he is at the same time a believer in freedom, will approach the prob lem cautiously and with an open mind. An automatic conscript to neither camp, he should be willing t'o test the strength of the argu ments on both sides, desiring to find the bedrock of truth wherever it lies below the swirling eddies of passion. He may discover at last that here, as in a good many such disputes, the issues are as muddy as they are significant. One wonders if the debate, which too often takes the form of dueling with shibboleths, is ul timately about guns and their con trol at all. Superficially, of course, it is. But over it loom much larger concerns, concerns bearing direct lyon the future of freedom: How 673 674 THE FREEMAN November much crime is allowable in a free society? At what point is the sur vival of the society threatened by lawless acts? How free can the society hope' to remain if the sys tem of law upon which it rests is routinely mocked, not to say open ly flouted, by its people? It is im portant to ask questions like these even if one does not answer them.

For their part, the proponents of gun legislation argue that we have now reached a stage, if we have not already passed it, at which crime, especially violent crime, poses - to borrow a phrase from Mr. Justice Holmes - a clear and present danger to American society. They point to recent sur veys indicating that in over half of the murders committed in the United States a gun, often a cheap, easily obtainable handgun of the so-called "Saturday-Night Special" variety, was the weapon used. The present laws are ill-equipped to deal with the crisis. And the an swer, so the gun-control people have it, would be the enactment of a Federal gun law. There is a divergence of opinion concerning what such a law should require, presuming it should be enacted at all. Some advocates have proposed the registration of all firearms in the country. Others, lately more vocal, have advanced the idea that nothing short of out right prohibition will suffice. The first idea would entail some re striction of individual freedom; the second, however, denies the particular freedom out of hand. It is the second that interests us here.

Ideally, the scheme of outlawing the ownership of guns would, by removing the weapons from ev eryone's hands, remove them from the hands of criminals who use them to commit acts of violence. It would further insure that the pos session of guns, handguns in par ticular, far from being a right en joyed by the many, would then be a privilege of the few, restricted to such law-enforcement agencies as police forces. Thus, the gun controllers hope, the rate and fe rocity of crime will be greatly diminished. Assume for the moment that no infringement of individual liberty is involved. Does this proposal, or for that matter the registration plan, have any utilitarian value? From the standpoint of expedien cy, does it seem feasible? The pro legislation group, to boost the claim that gun-control is needed in the United States, cite the se vere gun laws of European coun tries and those nations' compara tively lower crime rates, and ar gue not altogether convincingly that there is a cause and effect re lationship between them. They take for granted that the one is 1975 A FREEDOM UNDER FIRE 675 due to the existence of the other.

They tend to ignore the countless other factors, not the least of which is the relative homogeneity of European populations, that could just as readily account for the fewer number of crimes. What is more, they offer no irrefutable evidence that the harsh gun laws are the single factor responsible for bringing about a reduction in crime. One estimate of the probable ef fectiveness of gun-control may be provided by the experiment of Jamaica, examined in a recent seg ment of the C.B.S. program 60 Minutes. Faced with an apparent .. ly incurable epidemic of gun-re lated crime, the government of Jamaica instituted a new and drastic system of treatment. For the past year or so sentences of up to life-imprisonment for the mere possession of a gun have been handed down by the Jamaican Gun Court. This and other equally Draconian measures did in fact bring about a temporary reversal in the escalation of crime. There are signs now, however, that it is again on the rise. The cost to the Jamaican people, in terms of re duced civil liberties added to the already existing burden of crime, can hardly be calculated.

Of course, the limited success of Jamaica's gun law is not conclu sive proof that a similar plan would have the same fate in this country. But it may show the shortsightedness of this specific approach to curbing crime. It has the harmful side-effect of punish ing with equal vigor the criminal and the innocent person who uses his gun for legitimate sporting purposes or self-p,rotection. A sounder plan, and one. which has yet to be endorsed by the anti-gun contingent, would levy heavier sentences for crimes committed with a gun and remove the stigma from those who obey the law. One must have a commodious faith indeed to believe that the criminal, once disarmed, will go and rob, rape, and murder no more, or that the very element of society in whose-best interest it is to ignore gun-control laws will ac cept them and obey them. The or dinary law-abiding citizen is doubly vulnerable if he obeys the law and surrenders the gun with which he protects his life and property because other laws have failed, or he feels they have failed, to protect them. Should he choose to disregard the law he, and all like him who were not criminals before, become de facto criminals in the eye of the courts, a situa tion not unlike Prohibition, when a bad law enacted with the best intentions did less to stop drink ing than to shatter respect for law itself.

676 THE FREEMAN November The simplistic view of criminal human nature held by the pro legislation group is exceeded only by its unshakeable conviction in the talismanic properties of coldly mechanical statute. They leave the distinct impression that guns, and not the persons wielding them, are responsible for crime and that by banning guns through legislative fiat one is striking at the heart of the problem. Admittedly, this would be a simpler and tidier world if such things could be, but it is far easier to outlaw guns than to wish away the evil im pulses which guns so often serve. Any free society worthy of the name does not deny the reality of these impulses, does not dispute that there is a darker side of man. Still, the truly free society is less engaged in reforming man - brave and heroic aspiration - than in allowing him to realize his poten tial for nobility and hence to re form himself. Noone claims that freedom showers unmixed bless ings, nor that it does not extract a toll. Ortega, in the chapter titled "The Greatest Danger, The State"

of his seminal work, The Revolt of the Masses, touches upon this point: When, about 1800, the new industry began to create a type of man - the industrial worker - more criminally inclined than traditional types, France hastened to create a numerous police force. Towards 1810 there oc curs in England, for the same rea sons, an increase in criminality, and the English suddenly realize that they have no police. The Conserva tives are in power. What will they do? Will they establish a police force? Nothing of the kind. They prefer to put up with crime, as well as they can. "People are content to let dis order alone, considering it the price they pay for liberty." "In Paris," writes John William Ward, "they have an admirable police force, but they pay dear for its advantages. I prefer to see, every three or four years, half a dozen people getting their throats cut in the Ratcliffe Road than to have to submit to domiciliary visits, to spying, and to all the machi nations of Fouche." Here we have two opposite ideas of the State. The Englishman demands that the State should have limits set to it.

It is almost a cliche to say that the freer a country the more it is bedeviled by crime. The advocates of gun-control, whose motives, let us not forget, are admirable, have been unable nonetheless to show by what process of regulation the inevitable diminution of freedom - and no loss of that increasingly rare commodity is unimportant will be outweighed or equalized by the boon of a hypothetically more lawful society. And they cannot show that the society born anew, however idyllic, would be worth the sacrifice. ~ POLICE POWER: Sovereignty'sSledgehammer RIDGWAY K. FOLEY, JR. SOVEREIGNTY may. be defined as the ultimate justification for the application of coercive force by the organized state to individuals residing within the territorial perimeters of that political unit or linked to it by virtue of birth, allegiance, contract or custom. 1 The state's commands divide into three major categories of power: taxation, eminent domain, and police.2 Taxation connotes the power of government to extract coerced or involuntary contributions of in1 See Foley, Ridgway K., Jr., "A De fense of Sovereignty: The Territorial Imperative" (unpublished manuscript).