Who is harmed?

In the law or criminal investigation, a useful question to ask is cui bono—to whose benefit.  The idea is to consider who gains an advantage from an action.  For example, if your rich uncle turns up mysteriously dead, you will be a suspect if he named you as an heir.

This is logical, based on our understanding of human motivation, and while it’s not a guarantee, it is a good line of pursuit.  When considering what laws to enact or retain, however, we should consider the opposite question: to whose harm?

When I point out that criminals wouldn’t comply with universal background checks or a registration scheme, I’m often asked if I want to throw out all laws, since criminals by definition violate them.  This is the fallacy of the false dichotomy, claiming we must be either in favor of all laws or none.

But this is nonsense.  As fans of True Grit know, there’s a difference between malum prohibitum crimes and those that are malum in se.

The details can get complex, but something that is malum prohibitum is wrong because it’s banned.  The examples of this are all too plentiful.  We tried to ban alcohol, and when that failed, we moved on to failing at banning marijuana.  Once government agencies get a taste of power, they hate to give it up.

And that’s the problem with laws of this nature.  It’s an exercise of power for its own sake.  We’ve heard the saying of Lord Acton about how power corrupts.  He made that statement with regard to the doctrine of papal infallibility, but it has entered the general culture because of its applicability.

Imagine your neighbors do something you don’t like.  They could choose to consume something you wouldn’t, their relationship may be one you don’t approve of, or they may listen to music you find annoying.  There is an impulse in too many of us—all of us, I suspect—to want to ban this thing or action that we don’t like.  Why we are like this is something for psychologists to explore, but my own conclusion is that it comes from a fear that if our neighbors are living well while doing what we don’t accept, that implies we are the ones in the wrong.

However discomforting this may be, we have to admit that what our neighbors do in the privacy of their own home isn’t inherently harmful to us.  By contrast, if the people next door come into our homes and force us to participate, we are being hurt.  This is the idea of something that is malum in se.  Murder and theft are harms.

That should be obvious, but it seems to be forgotten by advocates of gun control who keep asking me if I want to eliminate all laws.  The implication I see here, unstated but present, is that gun ownership itself is a harm.  I’ve discussed before the notion that gun owners are at greater risk, and this appears to be an article of faith on the part of people who seek to curtail our gun rights, but millions of American gun owners manage to get through the day without shooting themselves or other innocent people.  They even survive years to lifetimes of ownership.

The possession of a firearm, in one’s home or on one’s person, is a choice with considerable potential both for harm and for good, yet it isn’t inherently, automatically bad.  This is at the core of why I oppose most gun laws.  They confuse harms with potential.  Their advocates seek to criminalize what they simply don’t like.  A free society must outlaw harming innocent people to function, but when we seek to curtail what all of us can do, rather than holding each of us responsible for what we actually do, we give up on freedom itself.

The views and opinions expressed in this post are those of the author’s and do not necessarily reflect the position of Guns.com.

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