What to do with populations in which we can identify threats ex ante only probabilistically?
An Empirical Liberty Framework for Debating Gun Control
Those in favor of gun control repeatedly proclaim that something must be done to stop gun violence, to include repealing the Second Amendment. At the same time, those who defend a robust interpretation of the Second Amendment believe that the right stipulated in that Amendment needs to be broadened, not lessened. The debate between the two groups is explicitly a debate about gun control, however underlying this parley is the inevitable conflict of the rights of the collective and the rights on the individual. This tension that exists between those in favor gun control and those in favor of the right to keep and bear arms is an exemplar of the internal conflict between the manifestations of the foundational rights of life, liberty, and the pursuit of happiness, and the external tension between the freedom of individual and the freedom of the collective, i.e. the state. There is no perfect solution to the problem of legitimately competing rights, and I propose no such solution. Yet, as gun control measures are submitted to the American people, it is necessary to have a method to evaluate them, one that will avoid the emotionalism that animates rhetoric on both sides of this debate.
I propose that we think through competing rights claims, while also carefully and impartially assessing the evidence with an Empirical Liberty Framework. Doing this as a two-step process means that we would recognize that there should not be any restriction on an individual right unless there is compelling empirical evidence for another right to restrict it. The demand for empirical (i.e. statistical) evidence is not a utilitarian criterion, but rather a dispassionate way to evaluate the policy ramifications of gun control proposal with respect to individual freedom.
The Empirical Liberty Framework stipulates the primacy of the rights of individual and defends the Constitution’s provisions in a clear way without rejecting collective rights reflexively. The recourse to statistical evidence is salient since it helps mediate between two conflicting individual rights, or between individual and collective rights. Further, the empirical nature of the framework allows those who take seriously the individual’s rights to dialog about gun control with someone who does not share his philosophical viewpoint. Echoing this, the RAND Corporation recently released The Science of Gun Policy: A Critical Synthesis of Research Evidence on the Effects of Gun Polices in the United States, which states that agreement cannot be made on gun control policies “unless decisionmakers can draw on a common set of facts based on transparent, nonpartisan, and impartial research and analysis” (p. 3). Hence, the logic of the Empirical Liberty Framework is to work toward a science of gun policy, where the right-to-self-defense is preeminent.
There are a myriad of suggestions for types of gun control, which can roughly fall into three classes: (1) restrictions on firearms and their accompaniments (e.g. banning so-called “assault rifle” or “high-capacity” magazines), (2) restrictions on who gets to use firearms (e.g. age or mental health limitations), and (3) restrictions on where firearms can be carried or used (e.g., concealed carry permits or “Gun Free Zones”). The often substantial differences between the three classes and within each class speaks to the danger of being reflexively “for” or “against” gun control. For example, one could consistently argue for strong mental health curtailments of gun ownership for particular individuals, while supporting no general restrictions on any semi-automatic rifle.
Further the empirical evidence on the effects of the regulative host of gun control varies by the specific type of policy, which should also give one pause to demand gun control without thought or care to the civil liberties being infringed upon. Ergo, assessing the plethora of gun control proposals demands a consistent evaluation method like the Empirical Liberty Framework. I will consider two gun control proposals that are currently being discussed as exemplars and evaluate them under this framework. All gun control laws and proposals can be assessed in the following manner.
Gun Control Proposal One. Raising the age to purchase rifles (or at least certain types of rifles, i.e. so-called assault rifles) to 21. This proposal is a new one and it is due to the murderer in Parkland, Florida being nineteen years old. Handguns are already generally banned by the Federal government for purchase by anyone under 21.
Under the Empirical Liberty Framework this is a clear restriction of the liberty of adult Americans who as a group have committed no crime, no infraction, pose no danger to anyone else, and have a desire to have a firearm (to include for self-defense), and so should be opposed unless there is overwhelming empirical evidence to support it. Further, individuals in this age group can be in the military and police, yet would not be allowed to privately own a weapon they are trusted by the public to use. While this is already mainly the case with handguns, this proposition would further add to the arbitrary gradations of legal adulthood: the age of consent, to get married, to drive, to vote, to buy tobacco, to buy alcohol, to gamble, to purchase firearms, or to even be on one’s parents insurance can be any number of ages between 16 and 26.
This speaks to a certain inconsistency that is inherent in all schemes that restrict freedom, where the government mandates a sliding scale of maturity. The incongruity of there being a suggestion to lower the voting age to 16 contemporaneously with calls to increase the age to buy rifles to 21 offers a jarring paradox. This inconsistency is unfortunately a symptom of the way that civil liberties are treated like social programs in the United States: privileges that can be given or taken away by the Leviathan’s mercurial whim, rather than viewing them as fundamental constitutional protections.
As of the 2010 Census, there were over 12.2 million Americans who fall within this age group of 18-20 year-olds. It is certainly no small thing to restrict a constitutional right of this many people. So, we should demand evidence that would suggest this manifest restriction of liberty be offset by a dramatic improvement in public safety.
Of the 34 mass shootings in the United States since 1949 that have resulted in the murder of at least eight people, the mean age of the perpetrators is 33.4 years with a median of 31.5 years. More specifically, there have been 11 shootings where the perpetrators used assault rifles, with a mean age of 30.4 years and a median of 28 years. Further, only three of the 12 murderers were under 21 years of age at the time of their crimes, viz. two nineteen year-olds and a twenty-year old.
It would be fair to ask why the eighteen year-olds are being punished when there has not been one 18 year-old that has used an assault rifle in a mass murder. An even better query: why propose denying over six million women a constitutional right when there has been precisely one woman who has committed a mass murder of eight or more with any gun, and her partner in crime was her husband. (One of the two 2015 San Bernardino terrorists has this malign distinction.) Precisely zero women of any age have been the sole murderer in a mass shooting. Empirically there is greater justification for banning all men from buying firearms, than there is for a ban based on an arbitrary age limit. Yet, even the capricious Leviathan is cognizant that this violation of individual rights cannot hide behind the curtain of public safety, though high school students being used as props is perhaps the advent of a sheer curtain.
The discussion of descriptive statistics regarding minimum age requirements in the last two paragraphs is helpful, and a discourse with inferential statistics is even more fruitful. RAND’s The Science of Gun Policy in its efforts to prove a synthesis of research evidence with respect to minimum age gun control draws the following conclusions in Chapter 12:
“Minimum age requirements for purchasing a firearm have uncertain effects on total homicides and firearm homicides” (p. 154).
“Minimum age requirements for a firearm have uncertain effects on total homicides and firearm homicides” (p. 155).
“Minimum age requirements for purchasing a firearm have uncertain effects on mass shootings” (p. 157)
Thus, the evidence for all three of these relationships regarding age requirements are inconclusive based on the current academic studies. (For the effects of the minimum age requirements on suicide and unintentional firearms deaths see Chapter 12 of the RAND report as well.)
Gun Control Proposal Two. Gun-Violence Restraining Order. Recently debated by David French and Jacob Sullum, a Gun-Violence Restraining Order (GVRO) or an Extreme Risk Protection Order (ERPO) legislation allows law enforcement officers, family, or household members to petition a court to keep guns away from a dangerous person for a short period of time. The due process protections that are built into domestic violence restraining orders are similar to those in a GVRO. To be clear this is not the same as what the President seemingly has advocated, a GVRO must always respect the due process of the Fifth and Fourteenth Amendments.
Gun Control Proposal One ran afoul of the Empirical Liberty Framework since it restricts the freedoms of millions due to the terribly evil actions of the few, and there is no conclusive evidence that such age restrictions reduce the number of murders. This proposal focuses on only those who are a danger to themselves or others, and so avoids the speculative utilitarianism that reflexively stacks the deck in favor of right-to-life claims without considering the competing rights-to-self-defense claims. In addition to protecting the inherent right to self-defense, a GVRO also respects due process of the individual. To iterate, a GVRO works on a case-by-case basis with regard to the due process of each individual, while a blanket ban on the on the sale of firearms to 12.2 million people as desired by Proposal One is done on such a large scale, that the violation 12.2 million people’s due process goes by apathetically unnoticed.
There are numerous examples of the Leviathan failing in its obligation to protect its citizens with respect to mass shootings: individuals passing background checks who should not have, the FBI knowing of the violent tendencies of individuals yet do nothing to stop them, etc. So one way for the adult citizen to protect himself and others is by being able to have a gun (assault rifle or otherwise) and another way for the adult citizen to protect himself and others is being able to have a way to stop one of these would-be murderers with the use of a GVRO from having a firearms since the Leviathan is often too incompetent to be able to do so on his own. This illustrates that the GVRO is not actually a tool of the Leviathan to suppress individual liberty like an assault rifle ban, but rather another weapon of the free individual to defend himself against evil. In other words, the GVRO is a way to recognize the right-to-life of the individual as well as the right-to-safety of the state while at the same time upholding the rights of self-defense and due process. This formulation hints at the strength of the framework: by giving the individual the right to defend himself both with a firearm and a GVRO, he is able to assist with both the right-to-life and the right-to-safety.
Returning to RAND’s The Science of Gun Policy one last time: background checks that take into account such things as restraining orders and mental status (Chapter 3) seem to offer moderate evidence of reducing gun violence. This gives some inferential evidence that a GVRO’s flexibility to deal with people who are known to be violent and/or mentally ill, given that it respects due process, is a type of gun control that the Empirical Liberty Framework will allow.
Individual rights such as self-defense are not absolute even in a vacuum, and when individual rights are forced to bump into another in nature, there needs to be guiding principles that respect the individual as well as the collective rights of the polity. The Empirical Liberty Framework does this by a rational evaluation of the given proposal, with the following consequences. First, most gun control laws and regulations should be rejected, i.e. most gun control is like Proposal One (limitation of the rights of a group) rather than Proposal Two (limitation of the rights of an individual). Second, the framework elucidates the danger of automatically placing a collective right over an individual right, since individual rights are so entwined, that the restriction on one (e.g., gun rights), will inescapably lead to the restriction of others (e.g., due process).
In the age where “As a such and such I feel offended” by or a “devastating meme” apparently counts as a damning, conclusive argument, it is imperative that there is a way to evaluate policies in a consistent methodological way that respects individual liberty. Above I have demonstrated how the Empirical Liberty Framework applies to two types of gun control, but without loss of generality, these same two criteria can be applied to any policy whether gun control, abortion, tariffs, or anything else.