Chris Marschner’s epic Comment of the Day arrived at 11:14 pm last night. My immediate reaction was that it validated all of the toil and time I have put into this blog since it was launched in 2009. I know I have indulged myself more than is professionally admirable of late, complaining about the traffic here, the lack of broader web circulation of essays that I believe are important and objectively superior to commentary elsewhere that routinely gets hundreds of thousands of clicks, likes and shares. In my lore rational moments I also know that, as Hymen Roth once pulled me aside and reminded me, “Jack, you idiot, this is the life you have chosen!” This is ethics. Most people don’t want to read about or think about ethics, and most people are bad at it and don’t want to get better. I make much of my living teaching ethics to lawyers who admit to me that if they didn’t have to get ethics credits to keep their licenses, they would rather be locked in a room with Slim Whitman recordings being blasted at them than sit through an ethics seminar.
Chris’s essay— “essay” doesn’t do it justice; perhaps “opus”–reminded me of what I set out to do here from the beginning, which was to create an online colloquy about applied ethics and ethics analysis, using events, issues, episodes and dilemmas from every aspect of our culture, national experience and daily life. As the 9th full year of Ethics Alarms begins, I can see that we have attracted, beyond the readership, which of course is hard to analyze, a remarkable, diverse, dedicated and passionate group of regular commentators whose output in the discussions and debates following the posts is the best it has ever been and getting better. I could not be more proud of that. I also complain about lost commenters, the many, many once regular and valued participants here who have fallen away, often without explanation. ( Spike Jones: Mary–“Bon soir, John. Prosit. Auf wiedersehen. Au revoir. Adios. Aloha.” John: How do you like that? She didn’t even say ‘goodbye’! ) But this is the regular cycle of any blog; I know it. I just get attached to the faceless people I interact with daily, and take their exits personally, forgetting that lives and priorities change, and that I, too, am just a distant voice, who could, after all, be a dog.
I read many websites and blogs, and with the possible exception of the original Volokh Conspiracy before it moved to the Washington Post, no site’s comments approach the routine excellence I see here, in content, seriousness, and original thought. So you know just how excellent Chris’s comment is, when I say that it is among the very best that has been posted on Ethics Alarms.
Here is Chris Marschner’s Comment of the Day on the post, What Do You Get When You Add Anti-Gun Bias To Constitutional Ignorance To Anti-Trump Bias To Incompetent Journalism? THIS…”
I suggest that you keep this link handy as you read it.
I wrote this for anyone willing to listen.
As we listen to the plaintive cries of those affected by recent violence, many demand that we “do something.” What that something is depends heavily upon who bears the actual cost of that something.
Every day we go about our lives making decisions that involve costs. We unconsciously weigh the value of choosing this over that at any given moment. We ponder for just a few seconds:
Does the value of sitting on the couch watching the latest in the Netflix offering outweigh the task of getting up and going to the gym right now? Do we care if the immediate beneficial value of consuming that delicious piece of cake may impose a cost later in life, as we wind up needing to manage diabetes in years to come? Do we put a dollar value on the loss of a limb or our eyesight due to complications of such a disease? Do we actually estimate the value of lost days of active living because we choose a sedentary lifestyle, or do we simply evaluate the immediate costs and benefits? Do we contemplate the potential accumulated but deferred costs of the choices we make over a lifetime?
For some, yes. For others, the answer is no. These decisions appear inconsequential in our daily lives. But are they? For perhaps 99% of Americans we choose benefits that accrue in the here and now and dismiss the costs and benefits associated with the long-term. I chose 99% because I know that 1% of the population has the discipline not to spend everything they have, which is why they have been able to accumulate so much wealth. We often fail to accurately calculate the true cost of our decisions because we rarely, if ever, estimate the cumulative costs of our decisions. We are a consumption driven society. It appears that we live thinking there is no tomorrow.
“So what?” you may say. We cannot truly estimate the values of things yet to be. We have few measures to put a price on the intrinsic value of things and events. This is true for us as a group but not as individuals. I can place a value on my privacy for today and tomorrow. I put myself on the do not call list to avoid telemarketers imposing on my dinner time even though I know I might miss some extra-special offer that I really might like. I cannot speak for others, but for me the rights afforded to me in the Constitution have a significant, and high, value.
I value the First Amendment, which gives me the right to express myself in virtually any way that I wish, more than anything. I would gladly give up all my possessions and even my life to ensure that that right is never abrogated by the majority. Without this right, I could never attempt to change minds and persuade others that we all must all have this right. Embodied within the right is the ability to believe what I wish, without the majority telling me what I must believe. Obviously, I am seeking to avoid both the pain of punishment for transgressions against a majority who would tell me what I am allowed to communicate or believe, as well as the cost of having to live a lie. Given that we see movement to ban speech that is deemed offensive, why should we believe that this right is sacrosanct and immutable? We have legislators with a growing following now pushing for speech and assembly bans.
Given that I own no firearms, the loss of the Second Amendment would, on the surface, impose no immediate costs upon me. If I never own a firearm or want to, it would suggest that the long term opportunity costs are, again, zero. However, long term decisions cannot be viewed in isolation.
I will come back to this later.
It is highly unlikely that I will need protections from the Third Amendment. In a time of war against a foreign enemy, I would gladly quarter our soldiers if asked. I would not, however, allow soldiers into my home if martial law was declared by our government to suppress the rights of the citizens of our nation. This is probably a moot point, because I would be on one side or the other. If I was against the government during an insurrection, I don’t think the courts would be favorable to me anyway. As result, the elimination of this amendment would impose a negligible opportunity cost on me. Consequently, if it were eliminated I would not spend much time or energy defending it.
Moving on to the Fourth, Fifth and Sixth Amendments, imagine a society that demands government “do something!” whenever something bad happens. Is it really plausible to believe that the government will bend over backwards to prevent a corruption of justice in order to placate a mob that demands swift retribution? What might be the opportunity costs associated with such a society? We have seen what darkness lies in the hearts of men when vengeance and prejudice is part and parcel of the judicial process. We already have secretive courts in which the public has no ability to view the affirmation of probable cause. We know it as the FISA court. How hard would it be to establish a DISA court for domestic surveillance? Other regimes have had their secret police. Why would we be any different without the protections of these amendments?
To be secure in knowing that the government must establish probable cause before knocking down my door and rifling through my belongings to find evidence of wrongdoing on my part is of such great value that I would fight to the death to keep the Fourth Amendment. If we ban ownership of AR-14’s making possession illegal, what would stop the government from knocking on all doors and demanding to search the premises for contraband weapons – and anything else, for that matter?
I calculate the opportunity cost of eliminating the amendment simply to create the appearance of expediency of justice is mind-numbingly high. One only needs to turn on the news to see the DOJ indict people on process crimes, even when prosecutors can find no other rationale to indict on the original offense. It was once said, “Show me the man and I will give you the crime.”
What value would you place on not being subjected to Inquisition-style methods to force you to bear witness against yourself? I regard the prospect of being isolated in a jail cell for days, months, or years on end without help from an experienced lawyer [ EA NOTE: The Sixth Amendment guarantees the right to legal counsel] as frightening. Does anyone think that if that was legal, which is to say, constitutional, the government would not use every power it had to obtain your confession? I believe it would, because many believe that “if it’s legal it must be ethical.”
How many would be willing to give up the Fifth Amendment protections against the government taking of your property without just compensation? One look at the way law enforcement has abused its ability to employ asset forfeiture rules might suggest that if left unchecked, we are all at risk of losing our life savings. The Washington Post covered this in depth on Sept. 6, 2014.
Given what I previously described, what price would we put on the elimination of the Seventh Amendment? Do we trust government judges to render an impartial verdict after giving other governmental investigators the right to search your home, hold and question you until you could no longer tolerate the inquisition? Or, would you prefer to have a jury trial made up of your neighbors? Again, for me the opportunity costs associated with giving up these protections that protect both the guilty and the innocent is so high that I would physically fight the government to keep them.
Ah, the Eighth Amendment. Wouldn’t it be grand if we could do what we wanted to the Adam Lanzas and Nikolas Cruzes of this world, after they perpetrate horrific crimes and inflict enormous emotional scars on the survivors? If this amendment were eliminated, we would not be barred from drawing and quartering these beasts who mowed down innocent children as if they were shooting rats at the dump. Oh, how inhuman they were! They deserve what’s coming to them. For most people there is little opportunity cost to allowing cruel and unusual punishment, because they fail to factor in the costs associated with becoming a blood thirsty society. It’s all great—until you or your loved one is subject to the violence of the mob. I place great value on this amendment, because without it government could use unjustly high fines to balance budgets, keep people locked up indefinitely without any adjudication, or even institute public hangings to derive the political benefits of showing the public they are doing something. Again, governments have proven themselves untrustworthy with respect to fines. Some argue that governments unjustly incarcerate minorities more often than privileged whites.
This is another amendment that I would fight to the death to protect.
Imagine our government without the Ninth Amendment. They could decide what rights we actually have that were not specified in the Constitution. Ladies, that means no Supreme Court could give you the right to terminate a pregnancy. Moreover, no one would have an imputed right to privacy, as it is not enumerated in the Constitution. [ EA NOTE: The Third and Fourth Amendments do protect specified rights relating to privacy.] We should all value this one highly, because it is what prevents the government from having unlimited ability to limit our pursuit of life, liberty and happiness. I know I value it.
Rounding out the Bill of Rights is the Tenth Amendment, which states that all rights not explicitly delegated to the federal government are reserved by the states. Hear that Maryland, California, and Connecticut: you have the right to pass laws limiting the rights of your citizens provided they do not violate the individual rights enumerated in the federal Constitution. Through federalism, we as citizens have the right to move to states whose laws are more consistent with our values. Thus, we have a choice whether we live in a “nanny state” that emphasizes safety and security over personal freedom, or move to one that values individualism, autonomy, and responsibility. Without the Tenth Amendment, we would have no such choices, with the only laws being federal laws.
Now, without the First Amendment, how would we ever have promoted the idea of the Thirteenth, Fourteenth and Fifteenth Amendments,which effectively eliminated the practice of slavery, ensured equal protection under the law and acknowledged the citizenship of all those brought here as slaves as well as their offspring? Oh, I forgot the slave rebellions where slaves took up arms against their masters— perhaps the Second Amendment had some value then? Nor would women have been able to mount a movement to enshrine their right to vote within the Constitution with the Nineteenth Amendment. We all can contemplate the weapons they used to get the men to agree.
So as we evaluate the costs and benefits of legislation, we need to consider the opportunity costs of the choices we make. Every time we restrict a right guaranteed in the Constitution, we lower the opportunity cost of government deciding to infringe on all liberties we currently enjoy. While the 4th Circuit Court of Appeals states that military style (not grade but style) weapons can be banned under the Constitution because they are “not necessary” today, what if they become necessary in the future to protect the other liberties that we enjoy? That is the opportunity cost question at hand. What are we willing to sacrifice today to ensure that no future government will attempt to eviscerate that which we hold out as truly American values simply to provide citizens security at the sacrifice of the liberty to think and act as individuals? What do we want to tell future generations when they are no longer able to mount a defense against specious charges, because we allowed government to strip them of their protections from those who prefer expediency over justice?
Naysayers claim that none of this can happen. Elected officials would never try to take away all those other rights. In response, I will remind them that elected officials will support positions that enrich the coffers of government so that they can enamore themselves with the public through their spending, while rejecting anything that could negatively affect their election chances. Examples are tobacco and its revenues. I do not trust these officials to look beyond the next election, for if they did they would have banned all forms of tobacco years ago knowing that it kills more people per year than does all forms of violence. I agree that they will not radically impinge on our rights overnight. It will be a gradual process, much as tobacco ravages the body over time. Those in power will attempt to stay in power, and can be expected to ensure they are insulated from the rules they impose on the electorate.
Safety will become an entitlement which will be as hard to reform as Social Security, and they know that. If we do not critically evaluate the long-term opportunity costs of trading liberty for safety, we run the high risk of making horrendous decisions today that will be difficult if not impossible to correct in the future. If what I predict comes to pass, how will we compel the government to give up the power it wants to retain?
That is all I ask people to consider.
With all that said, the opportunity costs of eliminating or severely restricting the Second Amendment has now risen so high that I would fight for the right to prevent useless restrictions of the Second Amendment in order to preserve all those other liberties, using as much force as needed even though I own no firearms now. I do not want my ability to protect all of my rights in the future diminished in any way.
Nonetheless, one common sense, simple compromise for AR type weapons is to reclassify them as handguns. Many of these, if not all, have pistol grips and magazines approximating that of a Glock G22 .40 SA, a weapon that can be outfitted with a 23 cartridge magazine. A person with two of these weapons can inflict more damage than a person with an AR. The price of two Glock G22 .40 SA’s is less than one mid-range AR. Reclassification of AR’s as handguns would have prevented Cruz from buying his weapon of choice, and would also require a waiting period. It is a simple and common sense fix, and can be done easily without having to abridge the rights of lawful users. By no means is this a silver bullet, but just a conversation starter.