Email to Jacob Sullum
Safety, Risk, and Punishment of "Intent"
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20120808                                                Human Rights (Freedom and Security)                        Law                        Morality

To:, Sun Times Columnist
From: Scott Sinnock, 7:06pm, August 8, 2012
Subject: Chicago Sun Times, August 8, 2012, headlined "Where the right to bear arms ends"

Oh, Jacob, Jacob, Jacob!

You are my one hope in Sun Times columnists, and I now hope you were being facetious in your last sentence in today's column in the Sun Times: to quote "What could be more reasonable than stopping dangerous people from buying dangerous weapons?" and earlier "How do we know who is dangerous?" The latter trumps the former in my opinion, but if you stand behind the former, not, apparently, in yours. If you agree with me, then the following is old hat and consistent with what I take to be your views on freedom, which you so forcefully put forward in column after lonely column, thank you. However, if you really believe "dangerous" people should be regulated, read on.

One person's "dangerous" is another's "protector". One person’s terrorist is another’s liberator. The definition of "dangerous" will spread to cover the political whim about the "danger of the day”, right now: mass killings, assault weapons and 100 shell magazines. The political definition of dangerous behavior that needs to be regulated will always expand, never contract. There will always be dangerous deeds to be dealt with, to be forbidden to "keep dangerous people from harming others". But the "dangerous definition" issue is only minor part of the surprise I feel at your last sentence.

A more "modern" meaning of your last sentence seems to be that, at least in this case, "safety" trumps "freedom", by which I mean here personal choice, in this case to own a gun or not based on computer records of our past deeds. I hope you do not share that thoroughly modern belief which is rampant in the incessant assaults on our freedoms, from stop lights and speed limits to building codes, and yes, even the death penalty for such things as murder. Rules, it seems, are necessary for social order. But today safety and its fellow traveler, “health”, seem to trump all. Modern law even extends punishment (restriction of freedom, prison, fines, forced choice) to "precursors" of harm or threat. For example, just today's paper informs me of a man sentenced to 10 years in prison for "thinking" about having sex with a 15 year old boy. What did the man do? He was stopped by police before he had sex with the boy, the act of harm that the punishment, I suppose, is meant to deter. He "intended to" and actually took actions that may (or may not) have led to a sex act; he picked up the boy after arranging to meet him on-line. The law is written to classify these "precursor" acts as crimes in and of themselves. Attorneys general argue and the courts have upheld, "We only punish acts, not intent". But the act is evidence of the intent, and it is indeed the intent to harm rather than the harm itself that is being punished.

The same punishment of "intent" is seen in charges against either prostitutes or their "John's" by deceptive entrapment procedures of police masquerading as one or the other. The "harmful" sex act doesn't occur, but the intent was there, so the arrest is made and retribution meted out (footnote1). It seems we are extending our legal reasoning to include under the "rights" of the "people" the right to punish precursor "thoughts" indicated by overt acts so long as those acts are judged by legislators or, more commonly attorneys general to "portend" a crime.  The same reasoning applies to our conspiracy laws developed in the 1960 to address organized crime but applied now to all “potentially” criminal activity. If you talk about, and, to be sure, take some however minor act that can be interpreted to “advance” your intent, you may be imprisoned. It is this type of jurisprudence reasoning used to justify our president assassinating an American citizen , Al Alawi, because he “plotted” to hurt Amer icans. This is an example of incredible imperial power given to “the people” or more precisely our secular leader chosen through our consent and election. It should be noted, no one knows which intents will be manifest, and even if they are, which will cause harm and which will not. The future is not knowable.

Another example of placing public safety above thoughts that might (or might not) be a precursor to harm can be found in drunk-driving laws. They seem ultimately reasonable, do they not? "MADD has triumphed for us all. The roads are safer." (But they are not). If you are drunk and drive, your chances of causing harm to someone else and, more so, yourself, are greater, no doubt, than if you don't drink and drive., So what's the harm keeping drunk drivers off the road. Well ..... the harm I see is punishing someone who caused no harm. What harm did the arrested drunken driver cause? None so far, but according to our attorney generals she or he "might" hurt someone so they must be taken off the road, for safety. Before I want to punish a person for possibly causing me harm, I think it reasonable to ask, "How much did you increase my 'risk', my chance of harm?" The answer for drunk driving, it seems, is not by very much. Mortality by automobile is about 1 death per 10 million passenger miles. Dru nk drivers I am told "double or even triple” my chances of a fatal accident, similar ratios for lessor injuries. Hence, for every day of driving or riding in a car for about 30 miles, drunk drivers increase my risk of being killed from about one chance in 3 million to about one in one million. Do we react in our daily lives to such differences in risk, Not at all. According to many studies, risks less than about one in ten cannot be accurately perceived by most people, about one in a hundred for experts in some field. Oh, yes, we can quantify risk to parts per billion or trillion, as the EPA does regularly in standards for chemical "risks". However, as living, thinking, feeling people anything that has less than about one chance in ten to one in a hundred of harming us we consider "safe", not worth worrying about. I need to add that this "correct" perception of risk is for things that really threaten us in those numbers, like getting the flu when we are old or attempting a difficult maneuver while rock climbing with no ropes. However, we do seem to so worry about such much lessor risks and spend inordinate attention on them, perhaps, I suspect, to lord our "common decency" over others, but that is another book or two. If you want to reduce the risk of automobile accidents affecting you, don't drive, because that is your overwhelming risk factor, not drunk drivers.

So what is the point of this long harangue about our perceptions of risk and safety? Only that a pandora's box is opened wide once you let "safety uber alles" become a criterion of need for social sanctioning that restricts personal freedom. It is one of the great dilemmas of our time, especially with computers and data-gathering technologies that can so accurately quantify "risk". The easy political way out is to say "we are perfectly fair, all risk, ANY identifiable risk to health or safety is fair game for regulations designed to eliminate, ideally, but more practically, reduce that risk. "The law is for your own protection, so get with the program." Yes, of course, but at what cost; especially the cost in freedom - freedom, the calling card of America. And what is the proper cost in freedom for small gains in "safety" as well as for large gains in safety?  Far more people are killed with guns by good people (usually wearing uniforms), than by dangerous, bad people. If you want to stop "da ngerous" people from having guns, ban all guns - ALL guns, and their manufacture (Raytheon, Boeing, and other such massive "job" providers" as well as the metal-working shops in the terrorists' garages (footnote 2). And as with drunk driving, what is the actual harm, statistically, prevented by keeping guns away from pot users, the mentally insane, like me, and even convicted murderers, most of whom will never kill again, I was hospitalized involuntarily on the word of a single social worker who concluded I was "'being a threat to myself or others", never defined as to which; later released with no evidence to support continued incarceration after the obligatory three days. That one person's spontaneous reaction to my rapidly standing up, fists clenched, and talking loudly with no overt threats has forever restricted me from legally owning a gun. "Safety" in America might be improved, but I doubt it in my case. However, for that small gain in "peace of mind" if not real safety, my freedom must unfortun ately be sacrificed, too bad. I don't really mind because I have no need for a gun, but someone else might.

One more thought on guns: the second amendment, it seems to me, was intended as a hedge against tyranny, a means to ensure an armed civilian population that can be assembled in a well-regulated militia to oppose the army of any would be tyrant, including, to quote de'Tocqeuville, the "tyranny of democracy" (footnote 3). In this view, assault weapons are essential, and perhaps that's what the National Guard is all about. However, the national guard is a deterrence to tyranny only if a State's governor can refuse a call by the president to nationalize the guard. (this freedom was lost in 1900 when ultimate authority was, indeed, transferred to the president) But then, who protects against a tyrant governor?

So Jacob, I hope you WERE being facetious about keeping guns away from "dangerous" people, because, I thought you knew from your previous writings, we're all dangerous.

(1) The prostitution issue is all for the public good of course, safety via STD's included. However all sexual issues are tied to sexual morality including the idea that sex outside marriage is bad, a morality worth investigating with a book or two. Of course along those lines and in light of the 10 year sentence mentioned above, we don't even want to have "thoughts" of sex and children in the same brain, let alone mentioned in the same breath, or GOD forbid happen in the mind of an adult male (the 10 year sentence) or even “unthinkable” if it actually HAPPENS. I can't help but note that Mary Mitchell and Rick Telander, two columnists for the Sun Times, have expressed in writing, both more than once, the common view, I think, that the boys "molested" by Penn State's Sandusky were "ruined for life" by his "abuse. That statement seems to me to be far, far more abusive than a quick cornholing (please excuse the vulgarity, but the "act" is so bad we even forbid use of the word in "decent" company ). But to explore who is abusing whom, suppose for a second ..... just suppose now, no belief necessary, that a boy who voluntarily went back for 5 years to his "abusive environment" might just have in some way, perhaps at some time, enjoyed the encounter. Sex does feel good, you know. What is that boy to think of himself with the "world" telling him that he has been "ruined" by the act of sex with an adult male, perhaps thinking for a second such ruin is caused by his own decisions to go back. Such guilt he must feel. Ruined? Yes, perhaps, but not by the cornholing which didn't result in any, well at least not much physical harm, but by the classification by the "world" of "deeply caring but enraged, indignant people" that he has been "ruined for life", no redemption possible. But as caring people "our sympathies are with them always". That to me is far greater abuse than any act of sex, especially with boys who cannot become pregnant. Our sexual mores are worth another book or ten, which would includ e, of course, the ancient Spartans take on male adult-child sexual mores just to indicate that our current morality that classifies sex between adults and children as among the "most heinous of crimes" is not as universal as we think, but put to the lie by a way of life for an empire that lasted in relative stability for about 400 years.

(2) A consequence of the elimination of guns from public ownership, of course, would be elimination of what has been called "the great equalizer". Brute force behind a sword will reign again, except for armies controlled by governments, which then could not be challenged militarily. However, military means are not the only way to overthrow a government, but you then need the generals to disobey orders as happened in Moscow during the fall of the Soviets and more recently in Egypt, there to seize rather than relinquish power. So if we eliminate guns, the generals will be in charge. Is that so different from now?

(3) from Wikipedia "Alexis de Tocqueville", Tocqueville warned "modern democracy may be adept at inventing new forms of tyranny, because radical equality could lead to the materialism of an expanding bourgeoisie and to the selfishness of individualism. In such conditions "we lose interest in the future of our descendants...and meekly allow ourselves to be led in ignorance by a despotic force all the more powerful because it does not resemble one." Tocqueville worried that if despotism were to take root in a modern democracy, it would be a much more dangerous version than the oppression under the Roman emperors or tyrants of the past who could only exert a pernicious influence on a small group of people at a time. In contrast, despotism under democracy could see "a multitude of men," uniformly alike, equal, "constantly circling for petty pleasures," unaware of fellow citizens and subject to the will of a powerful state which exerted "immense protective powers"

                                                                Are we there yet?
                                                                       (Chick-fil-A anyone?)