What If A Law Can't Be Enforced?

The discussions here about Arizona's new attempt at enforcing immigration law have set me thinking about a more general question: What should we do as a body politic in a situation in which a law we have passed seems impossible to enforce?

In a sense, no law is enforced perfectly. Cannibalism is against the law, yet it does still, on rare occasions, happen that someone kills and eats someone else. We don't generally describe this as the laws against cannibalism "not being enforced". Rather we describe it as someone breaking the law.

When we talk about a law not being enforced, we generally mean that a lot of people are breaking it, and yet few of them seem to be suffering the consequences. Thus, although murders take place on a daily basis in our country, we generally do not hear complaints that no one is enforcing the laws against murder, since we at least see the police and prosecutors going through the process of trying to arrest and prosecute people for those crimes.

According to the criteria I've listed above, two obvious candidates for laws "not being enforced" would be our laws against narcotics and our immigration laws. While staggering amounts of resources are devoted to enforcing both of these, most of us have known people who use drugs at least occasionally and seem to face no legal repercussions, and most of us have met a fair number of illegal immigrants who, by their presence, clearly have not been deported. When we turn to the news or to studies, we find our impressions supported with data showing that vast numbers of people use drugs and large numbers of illegal immigrants are in the country. This causes many people to conclude that these laws are not being enforced, or at least not enforced sufficiently.

But there are other laws which are flaunted at least as often (and have a far smaller percentage of infractions punished) than these laws which do not cause us similar levels of concern. For instance, speeding laws are routinely broken. Police often won't even pull someone over unless he is going 5-10 mph over the limit, even though technically any speed in excess of the limit is an infraction of the law. And numerous speeders are never seen by a policeman. Another example is the drinking age. Sure, plenty of people are punished for violating the drinking age, but the number of times someone under 21 drinks beer or wine is vastly more. And frankly, most people really couldn't care less if somewhere a 19-year-old is quietly having a single beer in the confines of his home or dorm room. In cases like the speed limit and the drinking age, people clearly aren't concerned if many infractions go unpunished so long as the general norms they seek to enforce seem to be basically in place. (With the drinking age, it's hard to see how even that is the case, but for whatever reason, it's not considered a national emergency.)

I would argue that immigration and the drug laws actually have something in common with the drinking age and the speed limit in that truly enforcing these laws to the extent that 90%+ of infractions were punished would require such incredible excesses of an intrusive police state that we would consider the side effects worse than the cure.

Now, I'll start with the less controversial examples: While I could support lowering the drinking age a few years, or raising the highway speed limits a little, I have no problem with those laws existing despite the fact they cannot be wholly enforced. Even with insufficient and at times inconsistent enforcement of these laws, there do serve a social function and value. Thus, in their regard, I think it's okay to have laws which it is impossible to fully enforce.

But what of drug laws and immigration laws -- laws which arguably deal with issues which can have graver impacts to society and to individuals?

While I understand the argument that the "war on drugs" has caused far more suffering than either legalization or lax enforcement would (since it creates a niche in which the drug cartels thrive) I must admit that I am also hesitant about the idea of legalizing drugs. Yet it's hard to see how "we should fight harder" is the answer here. While I don't feel bad about killing or jailing members of the drug cartels, our fighting them seems to enable them more than defeat them (perhaps because defeating one group just helps one of their competitors.)

With immigration, given that we have a 2000 mile land border with Mexico, plus access to both coasts by sea, it's hard to see how any amount of resources spent on enforcement could truly stop illegal immigration from Mexico. The US is simply too attractive, and too many American employers are happy to not ask questions when it comes to hiring cheap labor. I'm sure that we could have better enforcement than at present, but there really is a limit to how good it could ever be. And yet, even as an advocate of far looser immigration restrictions, it's hard to say, "We'll institute better laws, but we'll never be able to enforce them anyway." Though even imperfectly enforced immigration laws surely have some utility. While imperfect enforcement benefits law breakers while disadvantaging those who follow the law, no immigration laws at all could clearly result in a much greater influx than we currently see.

Why A Right to Bear Arms?

Patrick of Orthonormal Basis pointed out that my post yesterday about Prof. Tribe's view on the second ammendment and DC's handgun ban didn't necessarily fully make the case I was attempting to make.

I'm not sure about your critique of Dr. Tribe. He doesn't here deny the possibility that a law-abiding citizen might have good reasons for preferring a handgun to other firearms, and I don't think you deny that there are also reasons why citizens might collectively prefer that nobody have access to handguns. (Whether the government can effectively prevent the distribution of illegal handguns is, of course, another question.)

Just because the government might have the authority and good reason to prohibit something, doesn't mean that there aren't legitimate uses that will get proscribed as well. The law can't be perfect.

Reading this, I realized that I hadn't fully laid out my thought process, perhaps in part due to my habit of writing blog posts over the course of brief interruptions in work over several hours.

I think that Prof. Tribe makes a potentially solid point that a right to bear arms does not necessarily mean a right to bear any arms that one pleases anywhere one likes. No one sane, clearly, is arguing that citizens be able to buy anti-tank rockets or .50 caliber machine guns.

However, I think it stretches a bit when he then turns around and argues that this means it is clearly acceptible to ban all handguns. Handguns account for roughtly half the guns manufactured and/or sold in the United States, so we're not talking about some small subset here.

More to the point, however, it seems to me that this line of thinking runs contrary to any reasonable purpose one might give to the second ammendment. Very often, it's argued that the second ammendment protects people's right to have guns "for hunting and sport". Now, I'm sure that in the late 1700s many people had a reasonable reliance on hunting rifle to provide a significant portion of their diet, but does it really seem to make sense that it is actually "hunting and sport" which resulted in the second ammendment being added to the constitution? Certainly, there's nothing in the text of the ammendment itself which would suggest such a purpose.

Rather, it seems to me that the purpose is explicitly defense against tyrrany and (by what seems like a very reasonable extension) defense of one's family and property in general.

This is where I think Prof. Tribe's perference to retain all current gun restrictions in DC runs into trouble. There is, unfortunately, a lot of overlap between what makes a good offensive weapon at close quarters and a good defensive weapon at close quarters. And so the current gun laws in DC have the unfortunate effect of banning just about all the guns (handguns, short-barrelled semi-automatic carbines: "assault rifles", and short barrelled folding stock shotguns: "tactical shotguns") which would be of most utility in the purpose for which a reasonable interpretation of the second ammendment would suggest guns should be allowed. In contrast, the guns which are legal in DC are those best suited for hunting medium to large game and for fouling -- activities which are clearly impractical and illegal within city limits.

Now, I certainly know some good and well-intentioned people who would rather not see civilians owning guns for the purpose of self defense, and would rather see all such activities done by civil authorities. That's a view which can legitimately be debated. But it seems to me that the bill of rights which we currently have pretty clearly deliniates a right to armed self defense.

Laurence Tribe on "Sane Limits"

Constitutional law professor Laurence Tribe has an editorial in todays Wall Street Journal on the case regarding Washington DC's total handgun ban which will be coming before the Supreme Court shortly. His conclusion (if that's not too strong a word) is that the second ammendment does indeed protect some sort of individual right to bear arms (as opposed to the "collectivist" view, which holds that this merely protects the right of each state to maintain the National Guard) but that the court must refrain from overturning the ban based on a fully indivial interpretation because that would (in his mind) suggest that almost no limits could be placed on said individual right.

It is true that some liberal scholars like me, having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units. Opponents of the District's flat ban on handgun possession have cited my words to the court and in newspaper editorials in their support.

But nothing I have discovered or written supports an absolute right to possess the weapons of one's choice. The lower court's decision in this case -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

For the Supreme Court to go any further than this in overturning the lower court's decision -- for it to hold, for instance, that no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense, as the District appears to urge -- would gratuitously fan the flames of doubt about the court's commitment to core constitutional principles, and would save no lives in the process.

Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing.

Now, professor Tribe does something rather mischievious here in suggesting that if the total ban on handguns is overturned, there will thus be a right to "brandish the firearms of one's choosing". If he's going to talk about gun laws, he ought to be (and in his more considered moments doubtless is) aware that it is illegal even in areas with very open gun laws and concealed carry laws to branding the firearm of one's choosing. such brandishing is classified as "disturbing the peace" and gets the brandisher taken to jail and the gun confiscated.

I think he also errs (and shows a certain unfamiliarity or lack of care about gun use) when he says, "Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms."

What reasons might a citizen reasonably want to own guns for? Well, according to the constitution, in order to protect against tyrrany. For fighting against one's own government, the AK-47 is certainly traditional, though any weapon which is semi-automatic, a fires fairly small cartridge (and thus has low recoil), and possesses the capacity to function reliably with little maintenance will do. Still, though it might be fun to own an AK some day, I don't think this should be the priority assigned in what we make sure citizens have readily available. I have it in me to hope that the time when we are forced into resisting our own government by force of arms is rather distant.

Generally, it's argued that citizens mostly have the right to use guns for sport: hunting, target shooting and even (according to Senator Obama) fishing. Hunting requires a rifle or shotgun. Target shooting (especially if done at an indoor range in the city) is at least as often done with handguns as with rifles. I'm not clear how you fish with a gun, other than shooting fish in the proverbial barrel.

Honestly, though, if I lived in DC, one of the reasons I would have near the top of my mind would be potentially using a gun to protect myself and my family in our home. In the close confines of a house or apartment, a handgun is much more maneuverable than a long gun. Handguns also fire larger, slower bullets which in most cases will not travel through walls and injure innocent people three apartments away. (If you shot at an intruder in your apartment with a deer rife, you could easily kill someone several several apartments away.)

So there's definitely a reason aside from concealment (which is generally illegal without a license anyway) that people want to be able to own handguns in a place like DC. Dr. Tribe seems either not to know this, or perhaps to have allowed his political instincts (which he has stated oppose the individual ownership of guns) to overcome his ability to think clearly about the issue.