Gun Control

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C H A P T E R 1 7

‘’ Drugs, Guns, and Personal Liberty

In our personal lives, in society, and in morality itself, few values are counted more precious than individual liberty, our right of self-governance or self-determination. Countless moral conflicts that cause both personal anguish and social strife begin with perceived threats to individual freedom. Often the heart of the matter is someone’s claim- ing a right to exercise personal freedom by doing something—using drugs, owning a gun, having an abortion, marrying a same-sex partner—while oth- ers declare that no such right exists. No such right exists, the argument usually goes, because exercis- ing it causes harm to persons or society at large. Debates about drug use and gun ownership thus have much in common. They also seem to be blaz- ing as hot as ever on social media, in the news, and anywhere ethics and arguments are taken seriously.

ISSUE FILE: BACKGROUND

Drugs: Social Harms versus Personal Freedom

No matter how drug use and its accompanying harms are measured, the conclusion to be drawn is the same: the damage to society’s institutions and people’s lives has been both pervasive and tragic. In 2016, over 64,000 Americans died from overdoses of illicit drugs and prescription opioids. Between 2006 and 2010, excessive alcohol use led to 88,000 deaths. Cigarette smoking and exposure to tobacco smoke cause almost a half million deaths per year. In 2015, over 27 million Americans (aged twelve and older) were users of illegal drugs. That’s 12.5 percent of males in this age group, and 7.9 percent

of females.1 Marijuana was the illicit drug most com- monly used (19.8 million users), followed by the nonmedical use of prescription drugs (4.5 million), cocaine (1.5 million), hallucinogens (1.3 million), inhalants (496,000), and heroin (289,000).2 The resulting injury to the heart, liver, kidneys, lungs, brain, and many other systems is well documented, and annual drug-related deaths number in the tens of thousands. The National Institute on Drug Abuse sums up the effects of drug abuse like this:

Drug-related deaths have more than doubled since the early 1980s. There are more deaths, illnesses, and disabilities from substance abuse than from any other preventable health condition. Today, one in four deaths is attributable to alcohol, tobacco, and illicit drug use.3

Some commentators say the war on drugs has caused more misery than the actual use of drugs. Violence has always accompanied drug trafficking by dealers and cartels, and death and injury are unavoidable in efforts to enforce drug laws. Thou- sands have been killed in drug-related violence, including many innocents who had nothing to do with illegal drugs. In 2016, there were 1,572,579 arrests for violating drug laws. The great majority of these were for possession; only 15.3 percent were for selling or producing drugs.4

State and federal prisons have been filled to capacity with people arrested for drug violations, many of them sentenced to long prison terms for pos- sessing small amounts of marijuana. Thousands of lengthy prison terms for breaking drug laws have been handed down because many statutes—often enacted as part of zero-tolerance drug policies—require

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the word drugs, they mean substances designed to treat or prevent disease. In this category are all prescription drugs and nonfood over-the-counter (OTC) medicines (not including vitamins, which are considered food substances). Drug abuse and drug habit usually refer to the nonmedical, pro- scribed use of psychotropic (mind-altering) sub- stances. Marijuana, prescription medicines (used nonmedically), alcohol, nicotine, and cocaine are all drugs in this sense.

Several terms prominent in discussions of drugs are important but are often misused and misunder- stood. Drug addiction, like drug, is a term whose definition is debated by experts and nonexperts alike. An authoritative medical manual says that drug addiction is

an intense craving for the drug and compulsive, uncontrolled use of the drug despite harm done to the user or other people. People who are addicted spend more and more time obtaining the drug, using the drug, or recovering from its effects. Thus, addiction usually interferes with the ability to work, study, or interact normally with family and friends.7

Drug dependence is a condition in which dis- continuing the use of a drug is extremely difficult, involving psychological or physical symptoms. In physical dependence, discontinuing the drug leads to

mandatory minimum sentences. Some states, how- ever, have repealed laws that mandate tough sen- tences for nonviolent drug offenses, and two-thirds of Americans agree with these changes.5

In the United States, attitudes toward drug use and drug law enforcement are changing. Two- thirds of Americans now think the government should pay more attention to treatment for users of hard drugs (cocaine and heroin, for example) than to prosecution of these users. Some states are abandoning mandatory prison sentences for those guilty of nonviolent drug offenses. In 2001, only 47 percent thought such a move was a good idea; in 2014, 63 percent thought so.

The legalization of marijuana is receiving much more support from the public than it did a few years ago. In 2004, 60 percent of Americans were against legalization; 32 percent were for it. In 2016, only 37 percent were against legalization; 57 percent were for legalization.6

The term drug has been surprisingly difficult to define to everyone’s satisfaction. A general defi- nition that can aid our discussions is “a nonfood chemical substance that can affect the functions or makeup of the body.” Thus, cocaine and marijuana are drugs, but so are nicotine, alcohol, and caffeine. When doctors, nurses, and medical researchers use

’ Between 1999 and 2006, ten states legalized medi- cal marijuana: Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington. How did these changes affect recre- ational marijuana use among teenagers? Existing data show that during this period there was no statistically significant rise in teen marijuana use in any of these states. There was, however, a statisti- cally significant drop in four of the states: Alaska, California, Hawaii, and Montana.*

What do these data suggest about teen mari- juana use? Do they show that marijuana use is harmless? Do they prove that medical marijuana should be legalized in every state? What claim about medical marijuana do they disprove?

*Substance Abuse and Mental Health Services Admin- istration (SAMHSA), National Household Surveys on Drug Abuse (NHSDA), 1999–2006; Statistical Assess- ment Service (STATS).

CRITICAL THOUGHT: Does Legalizing Medical Marijuana Encourage Use among Teenagers?

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decreasing the number of users or the quantity of available drugs in society, but on reducing the harm that arises from drugs and drug laws. Douglas Husak explains this option:

Many sensible and enlightened commentators pro- pose that the best drug policy is whatever will mini- mize harm. Their basic insight is that current drug policy initiatives are almost always evaluated by a criterion we should reject: the test of use-reduction (or prevalence-reduction). In other words, at the present time, no suggestion about how to improve our pol- icy will be accepted unless it offers the potential to reduce the numbers of persons who use drugs. Theo- rists who favor a standard of harm-reduction point out that the total amount of harm that drugs cause in our society might actually decrease, even though the number of drug users would increase. If the average harm caused per user were reduced, total social harm might go down while the number of users went up.

The most promising harm-reduction programs are needle exchange programs for heroin addicts and medical programs for patients whose symp- toms are alleviated by smoking marijuana. Both of these ideas can effectively reduce harm in society.9

uncomfortable physical symptoms of withdrawal— symptoms that can be physically painful, even life threatening. In psychological dependence, there is both a strong craving (an acute desire to repeat tak- ing the drug) and an unpleasant experience of with- drawal (an intense distress when not taking the drug).

The intense desire and compulsion to use a drug lead to using it in larger amounts, more frequently, or over a longer period than at first intended. People who are psychologically dependent on a drug give up social and other activities because of drug use. They also continue to use the drug even though they know that the drug is physically harmful or interferes with other aspects of their life, including family and work.8

Debates about the morality of producing, selling, or using illicit drugs are often muddied by misunder- standings of the terms legalization, criminalization, and decriminalization. Legalization is the making of the production and sale of drugs legal—that is, making their sale and production no longer a pun- ishable crime. Drugs could be legalized by giving the government the exclusive right to regulate and sell them to the public, much as states now regulate and sell alcohol. Or they could be legalized by allow- ing individuals to freely buy and sell them without incurring criminal punishment. Criminalization is making the use (and possession) of drugs a crimi- nal offense. Under a criminalized system, merely possessing drugs in a specified amount can be pun- ished by fines or prison. Decriminalization is allowing people to use drugs without being liable to criminal prosecution and punishment.

How different states apply these policies can vary. They can criminalize the use of particular drugs or virtually all of them. They can punish the produc- tion and sale of drugs while decriminalizing their use. (Even in full decriminalization, drug use under partic- ular circumstances—while driving a car or flying an airplane, for example—would likely remain a crime.) Or they can opt for a strict zero-tolerance policy and outlaw their use, production, and sale.

A much-debated alternative to punishing peo- ple for drug offenses is what experts call harm reduction. The idea is to concentrate not on

’ DIVERSE VIEWS ON LEGALIZING MARIJUANA Percentage of U.S. adults saying use of marijuana should be . . .

Legal (%) Illegal (%) Total 57 37 Men 60 34 Women 55 40 White 59 36 Black 59 37 Millennial (18–35) 71 25 Generation X (36–51) 57 38 Baby Boomer (52–70) 56 40 Republican 41 55 Democrat 66 30 Independent 63 33

Pew Research Center, survey conducted August 23– September 2, 2016, http://www.pewresearch.org /fact-tank/2016/10/12/support-for-marijuana- legalization-continues-to-rise/.

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with troubling histories that suggest a degree of dan- gerousness. Eligible buyers include persons convicted of violent misdemeanors (except domestic violence), individuals with substantial records of alcohol abuse, and many people who have significant psychiatric problems but have not been hospitalized for them: stalkers under temporary restraining orders are not required to surrender firearms they already own.13

Debates about gun control may seem intracta- ble, in part because each side appeals implicitly to different basic moral values and fails to appreciate the other side’s moral commitment. Lester H. Hunt describes an aspect of this conflict:

One side focuses on the [Western] liberal value of empathy for injury and suffering, while the other emphasizes the equally liberal ideas of dignity and autonomy. I am tempted to call the former tradition “compassion-based,” but for the fact that both are based on compassion of a sort. What each has compas- sion for is somewhat different, though. For the former, what is important is rescuing human beings from pain, while the latter places importance on repair- ing individual dignity and self-respect. I, personally, have a good deal of sympathy for the dignity and self- respect side of this divide, but for the moment that is not my point. Rather, I urge the reader to understand that the gun debate is separated by contrasting ethical ideas, and that unless we keep this in mind we are apt to seriously miss the point of the debate.14

Gun control refers to laws and policies designed to restrict the possession, use, and availability of fire- arms.15 Gun control supporters stake out a range of positions, from an absolute ban on all firearms (except those used by the police and military) to a variety of restrictions that are generally tougher than what exists now. Pro-gun (gun rights) advo- cates are committed to opposing almost all restric- tions on the ownership and use of guns. Existing federal gun laws limit the government’s role in fire- arm control to licensing and inspecting gun deal- ers, regulating the sale and transfer of guns across state and international borders, preventing the ownership of guns by high-risk groups (such as fel- ons), and limiting the availability of machine guns and armor-piercing bullets. States and cities have

From whatever perspective we wish to view the issue of drug use and abuse, there are moral questions that demand our attention. These questions fall into two broad categories: (1) the moral permissibility of using drugs; and (2) the morality of legal and social policies that address the use of drugs. Questions of the first type are concerned with personal autonomy, individual liberty, moral and legal rights, harm to oneself, and harm to others. Questions of the second type are about the ethics of drug laws and policies, and the prosecution and punishment of drug users.

Gun Ownership: Security versus Individual Rights

Stubborn realities make debates about guns and gun control in the United States disconcertingly complex, uninformative, and exasperating. Gun violence in the nation is shockingly prevalent, more so than in any other developed country. In 2014, there were 33,736 firearm deaths (suicides, homicides, and acci- dental shootings). This is a death rate of 10.6 deaths per 100,000 population; the country with the next highest rate is Finland with 3.6 deaths; the United Kingdom’s rate is 0.2.10 And the rate of gun owner- ship in the United States is among the highest in the world—in 2007, the U.S. rate was 89 guns per 100 people. Yemen had the next highest, at 55 guns per 100 people. It’s estimated that there is a gun in 35 percent of American households.11 About 8 million people have a license or permit to carry a concealed handgun, and an unknown number of people carry concealed handguns without legal permission.12

Another factor is that in the United States, obtaining a gun is not difficult. Weak or non- existent gun regulations make it so. As firearms scholar David Degrazia points out,

High ownership rates are presumably related, in part, to gun regulations that make it very easy to purchase and possess firearms in this country. American adults who lack any specific disqualifying criminal or psy- chiatric history are eligible buyers. While state laws vary, federal exclusionary criteria—such as having a felony conviction or having been committed to a psychiatric institution—leave eligible many people

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4. Laws should stipulate that only properly licensed adults may use a gun, and that one may not use someone else’s gun except in a life-threatening emergency calling for forceful defense.

5. Guns should be acquirable only from federally licensed dealers while private sales and the gift- ing of guns should be illegal.

6. Federally licensed dealers should be permitted to sell a firearm to a given individual only after completing a criminal and psychiatric back- ground check (no exceptions).16

Probably very few extended debates about guns proceed without at least a mention of the Second Amendment to the U.S. Constitution. Pro-gun advocates consider it the lynchpin of their case for the right to own and use firearms. It reads: “A well

their own regulations, which may reinforce or aug- ment federal laws.

Degrazia says the United States currently has a “very minimal level of gun control” and should enact more rigorous measures—what he calls a “moder- ately extensive set of gun regulations.” His list of policy recommendations includes the following:

1. Purchase of a gun should be legally permitted only upon obtaining a license, and the first step in acquiring a license should be demonstration of special need for a firearm.

2. Those who demonstrate special need for a firearm should have to pass a rigorous training course on firearm use and safety before obtaining a license.

3. No one should be legally permitted to purchase, own, or use a gun prior to age twenty-one.

’ • In 2014, there were 33,736 firearm deaths (sui-

cides, homicides, and accidental shootings), which is a death rate of 10.6 deaths per 100,000 population, the highest rate in the world. The death rate for the United Kingdom is 0.2 per 100,000.

• The United States has six times as many gun homicides as Canada, and almost sixteen times as many as Germany.

• Since the Sandy Hook Elementary School shoot- ing (in which twenty children and six adults were killed), over 1,500 mass shootings have occurred. (A mass shooting is defined as an incident in which four or more people are shot, not includ- ing the shooter.)

• In 2007, the U.S. rate of gun ownership was among the highest in the world—89 guns per 100 people.

• Americans own almost half of the world’s 650 million privately owned guns.

• 22 percent of Americans own one or more guns.

• About 8 million people have a license or permit to carry a concealed handgun, and an unknown number of people carry concealed handguns without legal permission.

• Three-quarters of teenage homicides are related to the use of firearms.

• In 2010, emergency rooms treated 73,505 non- fatal gunshot injuries.*

*National Center for Health Statistics, “Suicide and Self- Inflicted Injury,” “Assault or Homicide,” 2013, https:// www.cdc.gov/nchs/fastats/suicide.htm (December 31, 2017); National Center for Health Statistics, “All Inju- ries,” 2014, https://www.cdc.gov/nchs/fastats/injury.htm (December 31, 2017); American Journal of Medicine, March 2016, vol. 129, iss. 3, 266–73; Philip J. Cook and Kristina A. Goss, The Gun Debate: What Everyone Needs to Know (New York: Oxford University Press, 2014), 22; American Academy of Pediatrics, “Firearms and Ado- lescents,” Pediatrics 89 (April 1992), 784–87; Congres- sional Research Service 2012, “Small Arms Survey,” 2007; UNODC, “Small Arms Survey,” 2012; Gun Violence Archive, 2013–2017.

VITAL STATS: Guns in the United States

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individual vs. collective rights. Early rulings on the matter suggested that the right to keep and bear arms was a collective right connected to militia ser- vice. But in 2008, in the case of District of Columbia v. Heller, the court overturned Washington, DC’s 1976 ban on individual handgun possession. The ruling affirmed an individual’s right to keep and bear arms for self-defense. Heller and a similar ruling issued two years later in McDonald v. City of Chicago did not invalidate all gun control laws, but they did crush the old gun control dream of banning all handguns.

No matter what interpretation of the Second Amendment we prefer, the moral questions about gun rights and gun control remain, and we must seek answers through moral philosophy. The central moral questions are: Is there a moral right to own firearms, and do individuals have a moral right to use them in self-defense? The law cannot provide answers here, but we have a good chance of finding some through moral theories and moral arguments.

MORAL THEORIES

Traditional moral theories have interesting impli- cations for drug use. A utilitarian would judge the moral permissibility of using illicit drugs by how well that choice maximizes happiness, everyone considered. So she might reason like this: On the pos- itive side, using drugs (nonmedically or recreation- ally) could provide the user with pleasure, euphoria, a respite from stress, a break from the mundane, or some other desirable experience. She might then balance these benefits with several alleged negatives (depending on the kind of drug): addiction, depen- dence, withdrawal, physical disability, psychologi- cal impairment, loss of employment, damage done to personal relationships, and harm to other people. On the list of negatives she must also include the legal ramifications of drug use: the possibility of arrest, prosecution, imprisonment, and having a criminal record. She would have to make a judgment about the extent and likelihood of all these legal and nonlegal problems, difficult calculations about

’ SURVEY: VIEWS OF U.S. ADULTS ON GUN POLICY View Percentage of

U.S. adults Gun laws should be more strict. 52 Gun laws are about right. 30 Gun laws should be less strict. 18 Strongly favor preventing people with mental illnesses from 73 purchasing guns. Strongly favor creating a federal government database to track all 50 gun sales. Strongly favor allowing people 19 to carry concealed guns in more places. Strongly favor banning assault style weapons. 53 Strongly favor barring gun purchases by people on no-fly or watch lists. 66

Pew Research Center, “America’s Complex Relation- ship with Guns,” Survey of U.S. Adults conducted March 13–17 and April 4–18, 2017.

regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As generations of legal scholars and judges have pointed out, and as con- temporary disputants in gun control debates have discovered, this wording is peculiar and ambigu- ous, and disagreements about its meaning abound. As firearms scholars Glenn H. Utter and Robert J. Spitzer, however, point out:

Although the issues arising over the interpretation of the Amendment have been many, two tend to predominate. First, does it protect a collective (in other words, state) right related to militia service, or an individual right, and second, assuming that it does in fact protect the right of individuals to keep and bear arms, does it apply to the states as well as the national government?17

In past decades, the U.S. Supreme Court has weighed in only occasionally on the issue of

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Historically, the moral implications of gun con- trol have been explored using both consequential- ist and nonconsequentialist theories. But for many people, the most straightforward way to argue for or against guns is through some form of utilitarian- ism: judging a gun policy by its balance of good and bad effects, everyone considered. A gun control advocate might point to a long list of possible tragic consequences of not having appropriate gun laws in place and conclude that the argument against guns (and for gun control) is extremely strong. Here’s one way to make this case:

Gun control supporters offer empirical evidence of a positive correlation between murder rates and the availability of guns (especially handguns). Availability of guns is also positively correlated with suicide and accident rates. This empirical evidence is best under- stood against the background of the following arm- chair argument: (1) Guns (and especially handguns) are the easiest way to kill others or oneself. People can stand at a relatively safe distance and pull the trigger. (2) When people are angry, they act in ways they do not normally act. They may strike out at oth- ers. If they have a gun, they are more likely to use that gun. Although they could resort to a knife or a base- ball bat, they are less likely to do so, and, even if they do, those weapons are less likely to cause a serious or fatal injury. (3) When people are depressed, they act in ways they would not act normally. If they have a gun close to hand, they are more likely to kill them- selves. Although they might slit their wrists or take pills, they are less likely to do so, and, even if they do, they are less likely to kill themselves. (4) When people handle guns, even for a legitimate purpose, the prob- ability of serious or fatal injury to themselves or others increases. When children have access to guns, the like- lihood of an accident increases still more.

The conclusion of the armchair argument is clear: the more widely available guns are, the more people will be murdered, will commit suicide, and will die of accidents.18

A gun rights advocate could argue in similar fashion:

Gun control laws do not deter crime; gun owner- ship deters crime. A Nov. 26, 2013 study found that,

which experts disagree. She might finally conclude that the cost of using a particular drug far outweighs the benefits. Or she might assess the evidence differ- ently and decide that the negatives for all concerned are not as bad as some people suggest.

These considerations of course pertain to the morality of personal drug use, but our utilitarian could also make a similar calculation about drug laws and policy generally. For example, based on her assessment of the overall effects of an antidrug law, she might conclude that enforcement of the law causes more unhappiness than the drug itself does, or that using the drug does more harm to more people than the law does.

Kantian ethics is likely to condemn the use of illicit drugs on the grounds that it violates a ver- sion of the categorical imperative: never use persons merely as a means to an end but always as an end in themselves. Kant would have us include ourselves in this formula. When we use illicit drugs, he might say, we use ourselves merely as a means to the end of drug-induced pleasure, stress reduction, or altered consciousness. What’s more, we impair the very thing that constitutes our personhood—our auton- omy, our capacity for reasoned self-determination. Some commentators argue that in full-blown drug addiction, our autonomy is destroyed altogether. In addiction, they say, the addict’s freedom to choose is lost, for he is a slave to his chemical master. Others contend, however, that free will is not diminished as much as some critics say, especially if the drug addict freely chooses to use drugs in the first place.

It’s hard to see how natural law theory could ever condone hard drug use. Recall that in this theory, the morally right action is one that follows the dic- tates of nature. Whatever people do, they must fulfill their God-given, natural purpose. Lying is immoral, for example, because it goes against human nature, which naturally inclines toward social living where truth contributes to peaceful coexistence. Using mind- altering drugs, however, can lead to addiction, which forces the mind into an unnatural state in which autonomy is weakened and the moral law is obscured.

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query is, Under what circumstances is the govern- ment justified in preventing or stopping people from using drugs recreationally? The answers, or justifications, are usually derived from three prin- ciples: (1) the harm principle; (2) the paternalism principle; or (3) the legal moralism principle. When people try to explain their reasons for advocating a “war on drugs” or any other kind of interference with drug use, they almost always appeal to one or more of these fundamental ideas.

The harm principle says that authorities are justified in restricting some people’s freedom to prevent harm to others. The government claims for itself the right to arrest, subdue, punish, or quar- antine anyone if doing so will prevent harm to the public. Numerous civil laws, criminal laws, and judicial rulings rest firmly on the harm principle. The great utilitarian John Stuart Mill articulated this principle best when he said, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”20

Many who are opposed to recreational drug use assert that drug users hurt plenty of people. Users, they say, are more likely to neglect their children, abuse their spouses, cheat their employers by doing poor work, steal to support their drug habit, and hurt other people through accidents and negligence. In addition, drug users burden society with the costs of drug-law enforcement, drug treatment, legal prosecu- tion, and imprisonment. As James Q. Wilson says, “The notion that abusing drugs such as cocaine is a ‘victimless crime’ is not only absurd but dangerous.”21

Proponents of decriminalization counter that the harms of illicit drug use are exaggerated, are based on worst-case scenarios, and lack supporting evidence. Furthermore, they maintain that most of the harms that accompany drug use are not the direct result of drug use but of antidrug laws and policies. Douglas Husak itemizes some of these alleged harms:

In the first place, prohibition [of drugs and drug use] has always been aimed—or selectively

between 1980 and 2009, “assault weapons bans did not significantly affect murder rates at the state level” and “states with restrictions on the carrying of concealed weapons had higher gun-related mur- ders.” While gun ownership doubled in the twenti- eth century, the murder rate decreased. John R. Lott, Jr., PhD, author of More Guns, Less Crime: Understand- ing Crime and Gun Control Laws, stated, “States with the largest increases in gun ownership also have the largest drops in violent crimes . . . The effect on ‘shall-issue’ [concealed gun] laws on these crimes [where two or more people were killed] has been dra- matic. When states passed these laws, the number of multiple-victim shootings declined by 84 percent. Deaths from these shootings plummeted on average by 90 percent and injuries by 82 percent.” A Dec. 10, 2014 Pew survey found that 57% of people believe that owning a gun protects them from being victim- ized. Journalist John Stossel explained, “Criminals don’t obey the law . . . Without the fear of retaliation from victims who might be packing heat, criminals in possession of these [illegal] weapons now have a much easier job . . . As the saying goes, ‘If guns are outlawed, only outlaws will have guns.’ ”19

As with any utilitarian argument, much depends on the empirical support for the premises. In the gun control debate, the nonmoral facts aren’t always clear. One reason for this is that solid evidence for various claims is often lacking because of the diffi- culty of establishing cause and effect relationships. (Does the availability of guns cause more crime or diminish it? Does carrying concealed guns deter crime?) Another reason is that partisans in the ver- bal conflicts are susceptible to the usual biases that plague arguments in any emotionally charged debate—and disputes about gun control can be especially vehement. In the supercharged atmo- sphere, evidence is frequently ignored, downplayed, misconstrued, and exaggerated.

MORAL ARGUMENTS

Some of the more compelling arguments for and against drug use involve questions of the second type, those concerning the morality of legal restric- tions or bans on the use of drugs. The essential

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him. One paternalistic argument concludes that people must be protected from freely and know- ingly choosing to take addictive drugs that can undermine their autonomy.

Peter de Marneffe takes a paternalistic view. He declares that there is only one good reason for drug prohibition—that some people will be worse off if drugs are legalized. He argues:

Drug prohibition is justified, in my view, as reduc- ing the independent harms of drug abuse [harms besides those caused by drug-law enforcement]. But it is commonly objected that drug laws “don’t work.” If so, it is no argument for drug legalization. In this sense laws against murder and theft do not work either, but this does not mean that we should abolish them.23

As you might expect, those who condemn paternalistic drug laws usually base their arguments on the supreme value of autonomy. Whatever the form of such laws, they say, they are still unaccept- able assaults on individual liberty, even if they are intended to somehow protect autonomy.

The legal moralism principle is the doctrine that the government is justified in curbing people’s freedom in order to force them to obey moral rules. For the legal moralist, if an act is immoral, that’s reason enough to make it a crime and prosecute those who violate the law. Estimations of harm need not be involved. The principle of course can be applied not just to drug use but to any action thought to breach moral standards. Wilson’s atti- tude toward antidrug laws is decidedly moralistic:

Even now, when the dangers of drug use are well- understood, many educated people still discuss the drug problem in almost every way except the right way. They talk about the “costs” of drug use and the “socioeconomic factors” that shape that use. They rarely speak plainly—drug use is wrong because it is immoral and it is immoral because it enslaves the mind and destroys the soul.24

A common reply to the doctrine of legal mor- alism is that it conflicts with other commonsense moral beliefs or policies we have. Decriminalization

enforced—against minorities. . . . In addition, drug prohibition is destructive of public health. Since the vast majority of illicit drugs taken for recreational purposes are purchased on the street from unlicensed sellers, consumers can have no confidence about what they are buying. . . . Street drugs may contain deadly impurities, and unknown potencies can con- tribute to deaths from overdose. . . . Truth is among the foremost casualties of our misguided drug policy. The demonization of illicit drugs is so pervasive that frank and honest discourse is all but impossible. . . . There may be no greater threat to the rule of law than corruption and abuse of authority among govern- ment officials. Prohibition and the huge amounts of money in the illicit drug trade create irresistible temptations for law-enforcement agents to place themselves above the law. . . . Our punitive drug policies cost exorbitant amounts of money. . . . Most of this money has been wasted. If we stopped pun- ishing drug users, taxpayers would reap enormous savings.22

For some who favor decriminalization, trying to judge the issue by some utilitarian standard— that is, by weighing harms and benefits—is entirely wrongheaded. The real issue, they say, is not harms but justice. The decision to punish someone for breaching a law should be decided according to what is just. If Jones commits a crime, we don’t decide his fate by balancing the good and bad effects of his actions. The utilitar- ian calculus is useless here. We try instead to determine what a just treatment of him would be, what his rights are, and what he deserves. Underlying this view is the idea that people are rational, autonomous beings whose freedom to choose and act should not be constrained with- out strong justification.

The paternalism principle asserts that authorities are sometimes justified in limiting people’s freedom to prevent them from harming themselves. To act paternally is to curtail a person’s liberty for her own good, regardless of what her preferences are. A paternalistic drug law would, say, criminalize a drug user’s actions to prevent him from doing something that might injure or impair

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moralists have yet to explain this inconsistency, so the doctrine of legal moralism is an inadequate jus- tification for making drug use illegal.

A common pro-gun argument appeals not to consequences but to rights. The idea is that the right to own a gun derives from a more funda- mental right: the right of self-defense. The Second Amendment scholar Nelson Lund says, “The right to self-defense and to the means of defending one- self is a basic natural right that grows out of the right to life,” and that “many [gun control laws] interfere with the ability of law-abiding citizens to defend themselves against violent criminals.”25

David Degrazia, an advocate for moderate gun control, lays out what he believes is a plausible self- defense argument for gun ownership and then cri- tiques it. Here’s a shortened version of the argument:

1. People have a basic right to physical security.

2. This right is violated by (unjustified) assaults and is threatened by burglaries.

3. People have a moral right to take necessary measures to prevent their basic rights from being violated.

4. The right to take such measures supports a moral right to self-defense.

5. The right to self-defense includes the freedom to use adequate means to defend oneself.

6. In present-day circumstances in the United States, adequate self-defense requires that competent adults have the option of gun ownership.

7. Thus, competent adults in the United States today have a moral right to gun ownership.26

Degrazia finds fault with several parts of the argument, but focuses mostly on Premise 6. He asks, “Does the option of owning firearms enable more adequate self-defense and physical security than would be possible if this option were unavailable?”

His answer is “no”:

An even-handed examination of available evidence suggests that, in the United States today, possession of guns does not, generally speaking, enable more

’ QUICK REVIEW drug—A nonfood chemical substance that can

affect the functions and makeup of the body. drug addiction—An intense craving for a drug

and compulsive, uncontrolled use of the drug despite harm done to the user or other people.

drug dependence—A condition in which discon- tinuing the use of a drug is extremely difficult, involving psychological or physical symptoms.

legalization—Making the production and sale of drugs legal.

criminalization—Making the use (and possession) of drugs a criminal offense.

decriminalization—Allowing the use of drugs without criminal penalties.

harm reduction—A drug policy aimed at reducing the harm that arises from drugs and drug laws.

gun control—Laws and policies designed to restrict the possession, use, and availability of firearms.

harm principle—The view that authorities are justified in restricting some people’s freedom to prevent harm to others.

paternalism principle—The view that authorities are sometimes justified in limiting people’s free- dom to prevent them from harming themselves.

legal moralism—The doctrine that the govern- ment is justified in curbing people’s freedom in order to force them to obey moral rules.

supporters ask why drug use, and not other kinds of behavior, should be outlawed simply because it is deemed immoral. Many actions are thought to be immoral—cheating at golf, plagiarizing, lying to a spouse, breaking a solemn vow, betraying a confidence—but few think these actions should be regarded as crimes and prosecuted as such. Critics of legal moralism say that legal moralists must explain why drug use should be a crime just because it’s immoral, but not other presumably immoral acts like betraying a confidence. Why is drug use a crime and not cheating at golf or lying to a spouse? Decriminalization proponents say legal

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interference with drug use, they almost always appeal to one or more of these fundamental ideas.

Gun control refers to laws and policies designed to restrict the possession, use, and availability of fire- arms. Gun control supporters stake out a range of positions, from an absolute ban on all firearms (except those used by the police and military) to a variety of restrictions that are generally tougher than what exists now. Pro-gun (gun rights) advocates are committed to opposing almost all restrictions on the ownership and use of guns. Existing federal gun laws limit the govern- ment’s role in firearm control to licensing and inspect- ing gun dealers, regulating the sale and transfer of guns across state and international borders, prevent- ing the ownership of guns by high-risk groups (such as felons), and limiting the availability of machine guns and armor-piercing bullets.

Pro-gun advocates consider the Second Amend- ment the lynchpin of their case for the right to own and use firearms. But its wording is ambiguous, and disagreements about its meaning abound. The cen- tral moral questions in gun control are: Is there a moral right to own firearms, and do individuals have a moral right to use them in self-defense?

KEY TERMS drug (p. 622) drug addiction (p. 622) drug dependence (p. 622) legalization (p. 623) criminalization (p. 623) decriminalization (p. 623) harm reduction (p. 623) gun control (p. 624) harm principle (p. 628) paternalism principle (p. 629) legal moralism (p. 629)

EXERCISES Review Questions

1. What is the difference between drug addiction and drug dependence? (p. 622)

2. What is the difference between legalization and criminalization? (p. 623)

adequate self-defense and physical security. First, the evidence suggests that owning guns tends to be self- defeating in the sense of making household members, on balance, less safe than they would be if the house were free of firearms. Second, the evidence casts doubt on the proposition that, in the event of a break-in while one is at home, having a gun, on balance, pro- motes the goal of self-defense.27

CHAPTER REVIEW

SUMMARY

A drug is a nonfood chemical substance that can affect the functions or makeup of the body. Drug addiction is “an intense craving for the drug and compulsive, uncontrolled use of the drug despite harm done to the user or other people.” Drug dependence is a condition in which discontinuing the use of a drug is extremely difficult, involving psychological or physical symp- toms. Drug legalization refers to making the produc- tion and sale of drugs legal—that is, making their sale and production no longer a punishable crime. Crimi- nalization makes the use (and possession) of drugs a criminal offense. Decriminalization allows people to use drugs without being liable to criminal prosecution and punishment.

A utilitarian would judge the moral permissi- bility of using illicit drugs by how well that choice maximizes happiness, everyone considered. Kantian ethics is likely to condemn the use of illicit drugs on the grounds that it violates a version of the categori- cal imperative: never use persons merely as a means to an end but always as an end in themselves. Nat- ural law theorists condemn hard drug use on the grounds that mind-altering drugs can lead to addic- tion, which forces the mind into an unnatural state in which autonomy is weakened and the moral law is obscured.

Arguments against decriminalization are often derived from three principles: (1) the harm principle; (2) the paternalism principle; or (3) the legal moralism principle. When people try to explain their reasons for advocating a “war on drugs” or any other kind of

632 Á  PART 4: ETHICAL ISSUES

9. Should there be an absolute legal ban on all guns? Why or why not?

10. Evaluate the self-defense argument that Degrazia sets forth. Is it sound? Are its premises true?

FURTHER READING Jonathan P. Caulkins, Angela Hawken, Beau Kilmer, and

Mark Kleiman, Marijuana Legalization: What Everyone Needs to Know (New York: Oxford University Press, 2012).

Philip J. Cook and Kristina A. Goss, The Gun Debate: What Everyone Needs to Know (New York: Oxford University Press, 2014).

David Degrazia and Lester H. Hunt, Debating Gun Control: How Much Regulation Do We Need? (New York: Oxford University Press, 2016).

Douglas Husak and Peter de Marneffe, The Legalization of Drugs: For and Against (Cambridge: Cambridge Univer- sity Press, 2005).

National Institute of Drug Abuse, “Medical Consequences of Drug Abuse,” December 2012, http://www.drugabuse .gov/related-topics/medical-consequences-drug-abuse /mortality.

Pew Research Center, “America’s New Drug Policy Land- scape,” April 2, 2014, http://www.people-press.org /2014 /04/02/.

Substance Abuse and Mental Health Services Adminis- tration, Center for Behavioral Health Statistics and Quality, September 4, 2014, “The NSDUH Report: Sub- stance Use and Mental Health Estimates from the 2013 National Survey on Drug Use and Health: Overview of Findings,” Rockville, MD.

Glen H. Utter and Robert J. Spitzer, The Gun Debate: An Encyclopedia of Gun Rights & Gun Control in the United States (Amenia, NY: Grey House, 2016).

James Q. Wilson, “Against the Legalization of Drugs,” Commentary, February 1990.

3. What is the drug policy known as harm reduction? (p. 623)

4. What is the harm principle? How is the harm principle used to justify government interference with drug use? (p. 628)

5. What is the paternalism principle? (p. 629) 6. What is legal moralism? (p. 629) 7. What is gun control? (p. 624) 8. What is the Second Amendment? How is it related

to debates about gun control? (pp. 625–626) 9. What is the rate of gun ownership in the United

States? (p. 625) 10. How many firearms deaths occurred in 2014?

How does this death rate compare to that of other developed countries? (p. 625)

Discussion Questions

1. Is legal moralism ever justified? Why or why not? 2. How might a utilitarian argue for or against

drug criminalization? 3. Should hard drugs like cocaine be legalized?

Give reasons for your answer. 4. Is harm reduction a better response to drug use

than criminalization? Why or why not? 5. In general, are paternalistic drug laws justified?

That is, is it ever morally permissible to curtail people’s freedom to prevent them from harming themselves?

6. How can gun ownership be justified by an appeal to a right of self-defense?

7. Should gun control laws be stricter than they are now? Why or why not?

8. Should gun purchases be allowed only after purchasers obtain a license? Explain.

E T H I C A L D I L E M M A S

1. Mass Shootings and Gun Laws

Politico.com—A majority of Americans support passing new gun control legislation, according to a new Gallup poll released on Thursday—marking the first time a majority of those surveyed has expressed such a view since Gallup started tracking the issue in 2000.

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The poll—taken in the month between the deadly mass shootings in Las Vegas on Oct. 1 and in Sutherland Springs, Texas, on Nov. 5—found that 51 percent of Americans were in favor of increased gun legislation.*

Mass shootings often increase support for gun control laws to deter such violence. But how likely is it that gun regulations will prevent mass shootings? Is the government morally obligated to find out what policies can and cannot prevent these shootings? Do citizens have a duty to press the government for action?

*Christiano Lima, “Gallup Poll: Majority of Americans Now Favor More Gun Laws,” Politico, November 9, 2017, https://www.politico.com/story/2017/11/09/gun-control-gallup-poll-244759.

2. Against Legalization or Decriminalization of Drugs

Position Statement from Drug Watch International: The legalization or decriminalization of drugs would make harmful, psychoactive, and addictive substances affordable, available, convenient, and marketable. It would expand the use of drugs. It would remove the social stigma attached to illicit drug use, and would send a message of tolerance for drug use, especially to youth. . . .

The use of illicit drugs is illegal because of their intoxicating effects on the brain, damaging impact on the body, adverse impact on behavior, and potential for abuse. Their use threatens the health, welfare, and safety of all people, of users and non-users alike.†

Do you agree with this position statement? Is the description of the effects of drug use accurate or exaggerated? Does legalization or

decriminalization imply that the government approves of drug use? Explain your answers.

†Drug Watch International, “Position Statement,” August 1, 1994, http://www.drugwatch.org/resources/publica tions/position-statements-and-resolutions/ (February 15, 2015).

3. Is Marijuana Medicine?

The marijuana plant contains several chemicals that may prove useful for treating a range of illnesses or symptoms, leading many people to argue that it should be made legally available for medical purposes. In fact, a growing number of states (29 as of March 2018) have legalized marijuana’s use for certain medical conditions.

The term “medical marijuana” is generally used to refer to the whole unprocessed marijuana plant or its crude extracts, which are not recognized or approved as medicine by the U.S. Food and Drug Administration (FDA). But scientific study of the active chemicals in marijuana, called cannabinoids, has led to the development of two FDA-approved medications already, and is leading to the development of new

634 Á  PART 4: ETHICAL ISSUES

pharmaceuticals that harness the therapeutic benefits of cannabinoids while minimizing or eliminating the harmful side effects (including the “high”) produced by eating or smoking marijuana leaves.‡

Should marijuana be made available to people for medical reasons? It is not legal in most states; should it stay that way, or should all states legal- ize it? Why or why not? Suppose you think using

marijuana for medical or recreational purposes is immoral or harmful to society. Would you change your mind about its use if it were found to be a cure for hard-to-treat cancers? Explain.

‡National Institute on Drug Abuse, “DrugFacts: Is Marijuana Medicine?” December 2014, http://www.drugabuse.gov/publications /drugfacts/marijuana-medicine (February 15, 2015).

Lest we take for granted that we know what drug addiction is, let us begin with some definitions.

According to the World Health Organization’s Expert Committee on Drugs Liable to Produce Addiction,

Drug addiction is a state of periodic or chronic intoxi- cation detrimental to the individual and to society, produced by the repeated consumption of a drug (natural or synthetic). Its characteristics include: (1) an overpowering desire or need (compulsion) to continue taking the drug and to obtain it by any means, (2) a tendency to increase the dosage, and (3) a psychic (psy- chological) and sometimes physical dependence on the effects of the drug.1

Since this definition hinges on the harm done to the individual and to society by the consumption of the drug, it is clearly an ethical one. Moreover, by not specifying what is “detrimental” or who shall ascer- tain it and on what grounds, this definition immedi- ately assimilates the problem of addiction with other

Thomas Szasz, “The Ethics of Addiction,” from The Theology of Medicine (1977). Reprinted with permission from the Estate of Thomas Szasz.

psychiatric problems in which psychiatrists define the patient’s dangerousness to himself and others. Actu- ally, physicians regard as detrimental what people do to themselves but not what they do to people. For example, when college students smoke marijuana, that is detrimental; but when psychiatrists administer psychotropic drugs to involuntary mental patients, that is not detrimental.

The rest of the definition proposed by the World Health Organization is of even more dubious value. It speaks of an “overpowering desire” or “compul- sion” to take the drug and of efforts to obtain it “by any means.” Here again, we sink into the conceptual and semantic morass of psychiatric jargon. What is an “overpowering desire” if not simply a desire by which we choose to let ourselves be overpowered? And what is a “compulsion” if not simply an unresisted incli- nation to do something, and keep on doing it, even though someone thinks we should not be doing it?

Next, we come to the effort to obtain the addic- tive substance “by any means.” That suggests that the substance is prohibited, or is very expensive for some other reason, and is hence difficult to obtain for the ordinary person rather than that the person who wants it has an inordinate craving for it. If there

R E A D I n G S

The Ethics of Addiction Thomas Szasz

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Until recently, masturbation—or self-abuse, as it was called—was professionally declared and popularly accepted as both the cause and the symptom of a vari- ety of illnesses.2

To be sure, it is now virtually impossible to cite a contemporary American (or foreign) medical author- ity to support the concept of self-abuse. Medical opin- ion now holds that there is simply no such thing, that whether a person masturbates or not is medically irrel- evant, and that engaging in the practice or refraining from it is a matter of personal morals or life-style. On the other hand, it is now virtually impossible to cite a contemporary American (or foreign) medical author- ity to oppose the concept of drug abuse. Medical opinion now holds that drug abuse is a major medi- cal, psychiatric, and public-health problem; that drug addiction is a disease similar to diabetes, requiring prolonged (or lifelong) and carefully supervised medi- cal treatment; and that taking or not taking drugs is primarily, if not solely, a matter of medical concern and responsibility.

Like any social policy, our drug laws may be exam- ined from two entirely different points of view— technical and moral. Our present inclination is either to ignore the moral perspective or to mistake the technical for the moral.

An example of our misplaced overreliance on a technical approach to the so-called drug problem is the professionalized mendacity about the dangerous- ness of certain types of drugs. Since most of the pro- pagandists against drug abuse seek to justify certain repressive policies by appeals to the alleged danger- ousness of various drugs, they often falsify the facts about the true pharmacological properties of the drugs they seek to prohibit. They do so for two rea- sons: first, because many substances in daily use are just as harmful as the substances they want to pro- hibit; second, because they realize that dangerous- ness alone is never a sufficiently persuasive argument to justify the prohibition of any drug, substance, or artifact. Accordingly, the more the “addiction-mon- gers” ignore the moral dimensions of the problem, the more they must escalate their fraudulent claims about the dangers of drugs.

were an abundant and inexpensive supply of what the “addict” wants, there would be no reason for him to go to “any means” to obtain it. Does the World Health Organization’s definition mean that one can be addicted only to a substance that is illegal or otherwise difficult to obtain? If so—and there is obviously some truth to the view that forbidden fruit tastes sweeter, although it cannot be denied that some things are sweet regardless of how the law treats them—then that surely removes the problem of addiction from the sphere of medicine and psychiatry and puts it squarely into that of morals and law.

The definition of addiction offered in Webster’s Third New International Dictionary of the English Language, Unabridged exhibits the same difficulties. It defines addiction as “the compulsory uncontrolled use of habit-forming drugs beyond the period of medi- cal need or under conditions harmful to society.” This definition imputes lack of self-control to the addict over his taking or not taking a drug, a dubious propo- sition at best; at the same time, by qualifying an act as an addiction depending on whether or not it harms society, it offers a moral definition of an ostensibly medical condition.

Likewise, the currently popular term drug abuse places this behavior squarely in the category of ethics. For it is ethics that deals with the right and wrong uses of man’s powers and possessions.

Clearly, drug addiction and drug abuse cannot be defined without specifying the proper and improper uses of certain pharmacologically active agents. The regular administration of morphine by a physician to a patient dying of cancer is the paradigm of the proper use of a narcotic, whereas even its occasional self-adminis- tration by a physically healthy person for the purpose of pharmacological pleasure is the paradigm of drug abuse.

I submit that these judgments have nothing what- ever to do with medicine, pharmacology, or psychia- try. They are moral judgments. Indeed, our present views on addiction are astonishingly similar to some of our former views on sex. Intercourse in marriage with the aim of procreation used to be the paradigm of the proper use of one’s sexual organs, whereas inter- course outside of marriage with the aim of carnal plea- sure used to be the paradigm of their improper use.

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some drugs—notably heroin, the amphetamines, and LSD among those now in vogue—may have undesir- able personal or social consequences, I favor free trade in drugs for the same reason the Founding Fathers favored free trade in ideas: in an open society, it is none of the government’s business what idea a man puts into his mind; likewise, it should be none of the government’s business what drug he puts into his body.

It is a fundamental characteristic of human beings that they get used to things: one becomes habituated, or addicted, not only to narcotics, but to cigarettes, cocktails before dinner, orange juice for breakfast, comic strips, sex, and so forth. It is similarly a fundamental characteristic of living organisms that they acquire increasing tolerance to various chemi- cal agents and physical stimuli: the first cigarette may cause nothing but nausea and headache; a year later, smoking three packs a day may be pure joy. Both alco- hol and opiates are addictive, then, in the sense that the more regularly they are used, the more the user craves them and the greater his tolerance for them becomes. However, there is no mysterious process of “getting hooked” involved in any of this. It is simply an aspect of the universal biological propensity for learning, which is especially well-developed in man. The opiate habit, like the cigarette habit or the food habit, can be broken—usually without any medical assistance—provided the person wants to break it. Often he doesn’t. And why indeed should he if he has nothing better to do with his life? Or as happens to be the case with morphine, if he can live an essentially normal life while under its influence? That, of course, sounds completely unbelievable, or worse—testimony to our “addiction” to half a century of systematic offi- cial mendacity about opiates, which we can break only by suffering the intellectual withdrawal symptoms that go with giving up treasured falsehoods.

Actually, opium is much less toxic than alcohol. Moreover, just as it is possible to be an alcoholic and work and be productive, so it is (or rather, it used to be) possible to be an opium addict and work and be productive. Thomas De Quincey and Samuel Taylor Coleridge were both opium takers, and “Kubla Khan,” considered one of the most beautiful poems

To be sure, some drugs are more dangerous than others. It is easier to kill oneself with heroin than with aspirin. But it is also easier to kill oneself by jumping off a high building than a low one. In the case of drugs, we regard their potentiality for self-injury as justifica- tion for their prohibition; in the case of buildings, we do not.

Furthermore, we systematically blur and confuse the two quite different ways in which narcotics may cause death—by a deliberate act of suicide and by acci- dental overdosage.

As I have suggested elsewhere, we ought to con- sider suicide a basic human right. If so, it is absurd to deprive an adult of a drug (or of anything else) because he might use it to kill himself. To do so is to treat every- one the way institutional psychiatrists treat the so- called suicidal mental patient: they not only imprison such a person but take everything away from him— shoelaces, belts, razor blades, eating utensils, and so forth—until the “patient” lies naked on a mattress in a padded cell, lest he kill himself. The result is the most degrading tyrannization in the annals of human history.

Death by accidental overdose is an altogether dif- ferent matter. But can anyone doubt that this danger now looms so large precisely because the sale of nar- cotics and many other drugs is illegal? People who buy illicit drugs cannot be sure what drug they are getting or how much of it. Free trade in drugs, with govern- mental action limited to safeguarding the purity of the product and the veracity of the labeling, would reduce the risk of accidental overdose with “dangerous drugs” to the same levels that prevail, and that we find accept- able, with respect to other chemical agents and physi- cal artifacts that abound in our complex technological society.

Although this essay is not intended as an exposi- tion on the pharmacological properties of narcotics and other mind-affecting drugs, it might be well to say something more about the medical and social dan- gers they pose. Before proceeding to that task, I want to make clear, however, that in my view, regardless of their dangerousness, all drugs should be legalized (a misleading term I employ reluctantly as a conces- sion to common usage). Although I recognize that

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males who are, in principle at least, capable of work- ing and supporting themselves. But they refuse: they drop out, adopting a life-style in which not working, not supporting oneself, not being useful to others, are positive values. These people challenge some of the most basic values of our society. It is hardly surpris- ing, then, that society wants to retaliate, to strike back. Even though it would be cheaper to support addicts on welfare than to “treat” them, doing so would be legitimizing their life-style. That, “normal” society refuses to do. Instead, the majority acts as if it felt that, so long as it is going to spend its money on addicts, it is going to get something out of it. What society gets out of its war on addiction is what every persecutory movement provides for the persecutors: by defining a minority as evil (or sick), the majority confirms itself as good (or healthy). (If that can be done for the vic- tim’s own good, so much the better.) In short, the war on addiction is a part of that vast modern enterprise which I have named the “manufacture of madness.” It is indeed a therapeutic enterprise, but with this gro- tesque twist: its beneficiaries are the therapists, and its victims are the patients.

Most of all perhaps, the idea of free trade in nar- cotics frightens people because they believe that vast masses of our population would spend their days and nights smoking opium or mainlining heroin instead of working and shouldering their responsibilities as citizens. But that is a bugaboo that does not deserve to be taken seriously. Habits of work and idleness are deep-seated cultural patterns; I doubt that free trade in drugs would convert industrious people from hustlers into hippies at the stroke of a legislative pen.

The other side of the economic coin regarding drugs and drug controls is actually far more impor- tant. The government is now spending millions of dollars—the hard-earned wages of hard-working Americans—to support a vast and astronomically expensive bureaucracy whose efforts not only drain our economic resources and damage our civil liberties but create ever more addicts and, indirectly, the crime associated with the traffic in illicit drugs. Although my argument about drug taking is moral and political and does not depend upon showing that free trade in drugs would also have fiscal advantages over our present

in the English language, was written while Coleridge was under the influence of opium.3 According to a definitive study by Light and others published by the American Medical Association in 1929, “morphine addiction is not characterized by physical deteriora- tion or impairment of physical fitness. . . . There is no evidence of change in the circulatory, hepatic, renal, or endocrine functions. When it is considered that these subjects had been addicted for at least five years, some of them as long as twenty years, these negative observations are highly significant.”4 In a 1928 study, Lawrence Kolb, an assistant surgeon general of the United States Public Health Service, found that of 119 persons addicted to opiates through medical practice, 90 had good industrial records and only 29 had poor ones. . . .

I am not citing this evidence to recommend the opium habit. The point is that we must, in plain hon- esty, distinguish between pharmacological effects and personal inclinations. Some people take drugs to cope—to help them function and conform to social expectations. Others take them to cop out—to ritualize their refusal to function and conform to social expec- tations. Much of the drug abuse we now witness— perhaps nearly all of it—is of the second type. But instead of acknowledging that addicts are unable or unfit or unwilling to work and be normal, we prefer to believe that they act as they do because certain drugs— especially heroin, LSD, and the amphetamines—make them sick. If only we could get them well, so runs this comfortable and comforting view, they would become productive and useful citizens. To believe that is like believing that if an illiterate cigarette smoker would only stop smoking, he would become an Einstein. With a falsehood like that, one can go far. No wonder that politicians and psychiatrists love it.

The idea of free trade in drugs runs counter to another cherished notion of ours—namely, that everyone must work and that idleness is acceptable only under special conditions. In general, the obliga- tion to work is greatest for healthy adult white males. We tolerate idleness on the part of children, women, blacks, the aged, and the sick, and we even accept the responsibility of supporting them. But the new wave of drug abuse affects mainly young adults, often white

638 Á  PART 4: ETHICAL ISSUES

strongly that civil liberties are precious. At the same time, it is not possible in the United States to walk into a store and walk out with a bottle of barbiturates, codeine, or other drugs. We are now deprived of that right because we have come to value medical paternal- ism more highly than the right to obtain and use drugs without recourse to medical intermediaries.

I submit, therefore, that our so-called drug-abuse problem is an integral part of our present social ethic, which accepts “protections” and repressions justi- fied by appeals to health similar to those that medi- eval societies accepted when they were justified by appeals to faith.8 Drug abuse (as we now know it) is one of the inevitable consequences of the medical monopoly over drugs—a monopoly whose value is daily acclaimed by science and law, state and church, the professions and the laity. As the Church formerly regulated man’s relations to God, so Medicine now regulates his relations to his body. Deviation from the rules set forth by the Church was then considered to be heresy and was punished by appropriate theologi- cal sanctions, called penance; deviation from the rules set forth by Medicine is now considered to be drug abuse (or some sort of mental illness) and is punished by appropriate medical sanctions, called treatment.

The problem of drug abuse will thus be with us so long as we live under medical tutelage. This is not to say that if all access to drugs were free, some people would not medicate themselves in ways that might upset us or harm them. That of course is precisely what happened when religious practices became free.

What I am suggesting is that although addiction is ostensibly a medical and pharmacological problem, actually it is a moral and political problem. We talk as if we were trying to ascertain which drugs are toxic, but we act as if we were trying to decide which drugs ought to be prohibited.

We ought to know, however, that there is no nec- essary connection between facts and values, between what is and what ought to be. Thus, objectively quite harmful acts, objects, or persons may be accepted and tolerated—by minimizing their dangerousness. Conversely, objectively quite harmless acts, objects, or persons may be prohibited and persecuted—by

policies, let me indicate briefly some of the economic aspects of the drug-control problem.

On April 1, 1967, New York State’s narcotics addic- tion-control program, hailed as “the most massive ever tried in the nation,” went into effect. “The program, which may cost up to $400 million in three years,” reported The New York Times, “was hailed by Gover- nor Rockefeller as ‘the start of an unending war.’ ”5 Three years later, it was conservatively estimated that the number of addicts in the state had tripled or qua- drupled. New York State Senator John Hughes reported that the cost of caring for each addict during that time was $12,000 per year (as against $4,000 per year for patients in state mental hospitals).6 It was a great time, though, for some of the ex-addicts themselves. In New York City’s Addiction Services Agency, one ex- addict started at $6,500 a year on November 27, 1967, and was making $16,000 seven months later. Another started at $6,500 on September 12, 1967, and went up to $18,100 by July 1, 1969.7 The salaries of the medi- cal bureaucrats in charge of the programs are similarly attractive. In short, the detection and rehabilitation of addicts is good business; and so was, in former days, the detection and rehabilitation of witches. We now know that the spread of witchcraft in the late Middle Ages was due more to the work of witchmongers than to the lure of witchcraft. Is it not possible that, similarly, the spread of addiction in our day is due more to the work of addictmongers than to the lure of narcotics?. . .

* * *

Clearly, the argument that marijuana—or heroin, or methadone, or morphine—is prohibited because it is addictive or dangerous cannot be supported by facts. For one thing, there are many drugs—from insulin to penicillin—that are neither addictive nor danger- ous but are nevertheless also prohibited—they can be obtained only through a physician’s prescription. For another, there are many things—from dynamite to guns—that are much more dangerous than nar- cotics (especially to others) but are not prohibited. As everyone knows, it is still possible in the United States to walk into a store and walk out with a shotgun. We enjoy that right not because we do not believe that guns are dangerous, but because we believe even more

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That is why we applaud the systematic medical use of methadone and call it “treatment for heroin addic- tion,” but decry the occasional nonmedical use of marijuana and call it “dangerous drug abuse.”

Our present concept of drug abuse thus articulates and symbolizes a fundamental policy of scientific medicine—namely, that a layman should not medi- cate his own body but should place its medical care under the supervision of a duly accredited physician. Before the Reformation, the practice of true Christian- ity rested on a similar policy—namely, that a layman should not himself commune with God but should place his spiritual care under the supervision of a duly accredited priest. The self-interests of the Church and of Medicine in such policies are obvious enough. What might be less obvious is the interest of the laity in them: by delegating responsibility for the spiritual and medical welfare of the people to a class of authori- tatively accredited specialists, those policies—and the practices they ensure—relieve individuals from assuming the burdens of those responsibilities for themselves. As I see it, our present problems with drug use and drug abuse are just one of the consequences of our pervasive ambivalence about personal autonomy and responsibility.

* * *

I propose a medical reformation analogous to the Protestant Reformation—specifically, a “protest” against the systematic mystification of man’s rela- tionship to his body and his professionalized separa- tion from it. The immediate aim of the reform would be to remove the physician as intermediary between man and his body and to give the layman direct access to the language and contents of the pharmacopoeia. It is significant that until recently physicians wrote prescriptions in Latin and that medical diagnoses and treatments are still couched in a jargon whose chief aim is to awe and mystify the laity. If man had unencumbered access to his own body and the means of chemically altering it, it would spell the end of Medicine, at least as we now know it. That is why, with faith in Medicine so strong, there is little interest in this kind of medical reform: physicians fear the loss of their privileges; laymen, the loss of their protections.

exaggerating their dangerousness. It is always neces- sary to distinguish—and especially so when dealing with social policy—between description and prescrip- tion, fact and rhetoric, truth and falsehood.

To command adherence, social policy must be respected; and to be respected, it must be considered legitimate. In our society, there are two principal methods of legitimizing policy—social tradition and scientific judgment. More than anything else, time is the supreme ethical arbiter. Whatever a social practice might be, if people engage in it generation after gen- eration, then that practice becomes acceptable.

Many opponents of illegal drugs admit that nico- tine may be more harmful to health than marijuana; nevertheless, they argue that smoking cigarettes should be legal but smoking marijuana should not be, because the former habit is socially accepted while the latter is not. That is a perfectly reasonable argument. But let us understand it for what it is—a plea for legiti- mizing old and accepted practices and illegitimizing novel and unaccepted ones. It is a justification that rests on precedence, not on evidence.

The other method of legitimizing policy, increas- ingly more important in the modern world, is through the authority of science. In matters of health, a vast and increasingly elastic category, physicians thus play important roles as legitimizers and illegitimizers. One result is that, regardless of the pharmacological effects of a drug on the person who takes it, if he obtains it through a physician and uses it under medical supervi- sion, that use is, ipso facto, legitimate and proper; but if he obtains it through nonmedical channels and uses it without medical supervision (and especially if the drug is illegal and the individual uses it solely for the pur- pose of altering his mental state), then that use is, ipso facto, illegitimate and improper. In short, being medi- cated by a doctor is drug use, while self-medication (especially with certain classes of drugs) is drug abuse.

That too is a perfectly reasonable arrangement. But let us understand it for what it is—a plea for legiti- mizing what doctors do, because they do it with good, therapeutic intent; and for illegitimizing what laymen do, because they do it with bad, self-abusive (mas- turbatory) intent. It is a justification that rests on the principles of professionalism, not of pharmacology.

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The same principle applies to sexual conduct. Sex- ual intercourse, especially between husband and wife, is surely a right. But it is a right that must be exercised at home or at some other appropriate location; it is not a right in a public park or on a downtown street. It makes sense that what is a right in one place may become, by virtue of its disruptive or disturbing effect on others, an offense somewhere else.

The right to self-medication should be hedged in by similar limits. Public intoxication, not only with alcohol but with any drug, should be an offense pun- ishable by the criminal law. Furthermore, acts that may injure others—such as driving a car—should, when carried out in a drug-intoxicated state, be pun- ished especially strictly and severely. The habitual use of certain drugs, such as alcohol and opiates, may also harm others indirectly by rendering the subject unmotivated for working and thus unemployed. In a society that supports the unemployed, such a person would, as a consequence of his own conduct, place a burden on the shoulders of his working neighbors. How society might best guard itself against that sort of hazard I cannot discuss here. However, it is obvious that prohibiting the use of habit-forming drugs offers no protection against that risk, but only adds to the tax burdens laid upon the productive members of society.

The right to self-medication must thus entail unqualified responsibility for the effects of one’s drug- intoxicated behavior on others. For unless we are will- ing to hold ourselves responsible for our own behavior and hold others responsible for theirs, the liberty to ingest or inject drugs degenerates into a license to injure others. But here is the catch: we are exceedingly reluctant to hold people responsible for their misbe- havior. That is why we prefer diminishing rights to increasing responsibilities. The former requires only the passing of laws, which can then be more or less freely violated or circumvented; whereas the latter requires prosecuting and punishing offenders, which can be accomplished only by just laws justly enforced. The upshot is that we increasingly substitute tender- hearted tyranny for tough-spirited liberty.

Such then would be the situation of adults were we to regard the freedom to take drugs as a fundamental right similar to the freedom to read and to worship.

Our present policies with respect to drug use and drug abuse thus constitute a covert plea for legitimiz- ing certain privileges on the part of physicians and illegitimizing certain practices on the part of everyone else. The upshot is that we act as if we believed that only doctors should be allowed to dispense narcotics, just as we used to believe that only priests should be allowed to dispense holy water.

Finally, since luckily we still do not live in the utopian perfection of one world, our techni- cal approach to the drug problem has led, and will un doubtedly continue to lead, to some curious attempts to combat it.

* * *

I believe that just as we regard freedom of speech and religion as fundamental rights, so we should also regard freedom of self-medication as a fundamental right; and that instead of mendaciously opposing or mindlessly promoting illicit drugs, we should, para- phrasing Voltaire, make this maxim our rule: I disap- prove of what you take, but I will defend to the death your right to take it!

To be sure, like most rights, the right of self- medication should apply only to adults; and it should not be an unqualified right. Since these are important qualifications, it is necessary to specify their precise range.

John Stuart Mill said (approximately) that a per- son’s right to swing his arm ends where his neighbor’s nose begins. Similarly, the limiting condition with respect to self-medication should be the inflicting of actual (as against symbolic) harm on others.

Our present practices with respect to alcohol embody and reflect this individualistic ethic. We have the right to buy, possess, and consume alcoholic beverages. Regardless of how offensive drunkenness might be to a person, he cannot interfere with another person’s right to become inebriated so long as that per- son drinks in the privacy of his own home or at some other appropriate location and so long as he conducts himself in an otherwise law-abiding manner. In short, we have a right to be intoxicated—in private. Public intoxication is considered to be an offense against oth- ers and is therefore a violation of the criminal law.

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drinking alcohol, or smoking marijuana, or ingesting amphetamines?

The Constitution and the Bill of Rights are silent on the subject of drugs. Their silence would seem to imply that the adult citizen has, or ought to have, the right to medicate his own body as he sees fit. Were that not the case, why should there have been a need for a constitutional amendment to outlaw drinking? But if ingesting alcohol was, and is now again, a constitu- tional right, is ingesting opium, or heroin, or barbi- turates, or anything else not also such a right? If it is, then the Harrison Narcotic Act is not only a bad law but unconstitutional as well, because it prescribes in a legislative act what ought to be promulgated in a con- stitutional amendment.

The nagging questions remain. As American citizens, do we and should we have the right to take narcotics or other drugs? Further, if we take drugs and conduct ourselves as responsible and law-abiding citizens, do we and should we have a right to remain unmolested by the government? Lastly, if we take drugs and break the law, do we and should we have a right to be treated as persons accused of a crime rather than as patients accused of being mentally ill?

These are fundamental questions that are conspic- uous by their absence from all contemporary discus- sions of problems of drug addiction and drug abuse. In this area as in so many others, we have allowed a moral problem to be disguised as a medical question and have then engaged in shadowboxing with meta- phorical diseases and medical attempts, ranging from the absurd to the appalling, to combat them.

The result is that instead of debating the use of drugs in moral and political terms, we define our task as the ostensibly narrow technical problem of protecting people from poisoning themselves with substances for whose use they cannot possibly assume responsibility. That, I think, best explains the frightening national consensus against personal responsibility for taking drugs and for one’s conduct while under their influ- ence. In 1965, for example, when President Johnson sought a bill imposing tight federal controls over “pep pills” and “goof balls,” the bill cleared the House by a unanimous vote, 402 to 0.

* * *

What would be the situation of children? Since many people who are now said to be drug addicts or drug abusers are minors, it is especially important that we think clearly about this aspect of the problem.

I do not believe, and I do not advocate, that chil- dren should have a right to ingest, inject, or otherwise use any drug or substance they want. Children do not have the right to drive, drink, vote, marry, or make binding contracts. They acquire those rights at vari- ous ages, coming into their full possession at maturity, usually between the ages of eighteen and twenty-one. The right to self-medication should similarly be with- held until maturity.

* * *

In short, I suggest that “dangerous” drugs be treated more or less as alcohol and tobacco are treated now. (That does not mean that I believe the state should make their use a source of tax revenue.) Nei- ther the use of narcotics nor their possession should be prohibited, but only their sale to minors. Of course, that would result in the ready availability of all kinds of drugs among minors—though perhaps their avail- ability would be no greater than it is now but only more visible and hence more easily subject to proper controls. That arrangement would place responsibility for the use of all drugs by children where it belongs: on parents and their children. That is where the major responsibility rests for the use of alcohol and tobacco. It is a tragic symptom of our refusal to take personal liberty and responsibility seriously that there appears to be no public desire to assume a similar stance toward other dangerous drugs.

* * *

Sooner or later, we shall have to confront the basic moral dilemma underlying our drug problem: does a person have the right to take a drug—any drug—not because he needs it to cure an illness, but because he wants to take it?

The Declaration of Independence speaks of our inalienable right to “life, liberty, and the pursuit of happiness.” How are we to interpret that phrase? By asserting that we ought to be free to pursue happi- ness by playing golf or watching television but not by

642 Á  PART 4: ETHICAL ISSUES

The other way out of it lies through confronta- tion: by recognizing the problem for what it is, we can choose to maximize the sphere of action of the state at the expense of the individual or of the individual at the expense of the state. In other words, we can com- mit ourselves to the view that the state, the represen- tative of many, is more important than the individual and that it therefore has the right, indeed the duty, to regulate the life of the individual in the best interests of the group. Or we can commit ourselves to the view that individual dignity and liberty are the supreme values of life and that the foremost duty of the state is to protect and promote those values.

In short, we must choose between the ethic of collectivism and the ethic of individualism and pay the price of either—or of both.

NOTES

1. Quoted in L. C. Kolb, Noyes’ Modern Clinical Psychiatry, 7th ed. (Philadelphia: Saunders, 1968), p. 516.

2. See my The Manufacture of Madness: A Comparative Study of the Inquisition and the Mental Health Movement (New York: Harper & Row, 1970), pp. 180–206.

3. A. Montagu, “The Long Search for Euphoria,” Reflections 1 (May–June 1966): 65.

4. A. B. Light et al., Opium Addiction (Chicago: American Medi- cal Association, 1929), p. 115; quoted in Alfred R. Lindesmith, Addiction and Opiates (Chicago: Aldine, 1968), p. 40.

5. The New York Times, April 1, 1967.

6. Editorial, “About Narcotics,” Syracuse Herald- Journal, March 6, 1969.

7. The New York Times, June 29, 1970.

8. See my Ideology and Insanity: Essays on the Psychiatric Dehu- manization of Man (Garden City, N.Y.: Doubleday, Anchor Press, 1970).

9. J. S. Mill, On Liberty (Chicago: Regnery, 1955), p. 13.

Finally, those repeated unanimous votes on far- reaching measures to combat drug abuse are bitter reminders that when the chips are really down, that is, when democratic lawmakers can preserve their intellectual and moral integrity only by going against certain popular myths, they prove to be either mind- less or spineless. They prefer running with the herd to courting unpopularity and risking reelection.

After all is said and done—after millions of words are written, thousands of laws are enacted, and countless numbers of people are “treated” for “drug abuse”—it all comes down to whether we accept or reject the ethical principle John Stuart Mill so clearly enunciated in 1859:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient war- rant. He cannot rightfully be compelled to do or fore- bear because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. . . . In the part [of his conduct] which merely con- cerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the indi- vidual is sovereign.9

The basic issue underlying the problem of addiction—and many other problems, such as sexual activity between consenting adults, pornography, contraception, gambling, and suicide—is simple but vexing: in a conflict between the individual and the state, where should the former’s autonomy end and the latter’s right to intervene begin?

One way out of the dilemma lies through conceal- ment: by disguising the moral and political question as a medical and therapeutic problem, we can, to pro- tect the physical and mental health of patients, exalt the state, oppress the individual, and claim benefits for both.

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Against the Legalization of Drugs James Q. Wilson

few new recruits. In 1976 the average age of heroin users who appeared in hospital emergency rooms was about twenty-seven; ten years later it was thirty-two. More than two-thirds of all heroin users appearing in emergency rooms are now over the age of thirty. Back in the early 1970’s, when heroin got onto the national political agenda, the typical heroin addict was much younger, often a teenager. Household surveys show the same thing—the rate of opiate use (which includes heroin) has been flat for the better part of two decades. More fine-grained studies of inner-city neighborhoods confirm this. John Boyle and Ann Brunswick found that the percentage of young blacks in Harlem who used heroin fell from 8 percent in 1970–71 to about 3 percent in 1975–76.

Why did heroin lose its appeal for young people? When the young blacks in Harlem were asked why they stopped, more than half mentioned “trouble with the law” or “high cost” (and high cost is, of course, directly the result of law enforcement). Two- thirds said that heroin hurt their health; nearly all said they had had a bad experience with it. We need not rely, however, simply on what they said. In New York City in 1973–75, the street price of heroin rose dramatically and its purity sharply declined, probably as a result of the heroin shortage caused by the suc- cess of the Turkish government in reducing the sup- ply of opium base and of the French government in closing down heroin-processing laboratories located in and around Marseilles. These were short-lived gains for, just as Friedman predicted, alternative sources of supply—mostly in Mexico—quickly emerged. But the three-year heroin shortage interrupted the easy recruitment of new users.

Health and related problems were no doubt part of the reason for the reduced flow of recruits. Over the preceding years, Harlem youth had watched as more and more heroin users died of overdoses, were poi- soned by adulterated doses, or acquired hepatitis from dirty needles. The word got around: heroin can kill you. By 1974 new hepatitis cases and drug-overdose

In 1972, the President appointed me chairman of the National Advisory Council for Drug Abuse Preven- tion. Created by Congress, the Council was charged with providing guidance on how best to coordinate the national war on drugs. (Yes, we called it a war then, too.) In those days, the drug we were chiefly con- cerned with was heroin. When I took office, heroin use had been increasing dramatically. Everybody was wor- ried that this increase would continue. Such phrases as “heroin epidemic” were commonplace.

That same year, the eminent economist Milton Friedman published an essay in Newsweek in which he called for legalizing heroin. His argument was on two grounds: as a matter of ethics, the government has no right to tell people not to use heroin (or to drink or to commit suicide); as a matter of economics, the pro- hibition of drug use imposes costs on society that far exceed the benefits. Others, such as the psychoanalyst Thomas Szasz, made the same argument.

We did not take Friedman’s advice. (Government commissions rarely do.) I do not recall that we even discussed legalizing heroin, though we did discuss (but did not take action on) legalizing a drug, cocaine, that many people then argued was benign. Our marching orders were to figure out how to win the war on her- oin, not to run up the white flag of surrender.

That was 1972. Today, we have the same number of heroin addicts that we had then—half a million, give or take a few thousand. Having that many her- oin addicts is no trivial matter; these people deserve our attention. But not having had an increase in that number for over fifteen years is also something that deserves our attention. What happened to the “heroin epidemic” that many people once thought would overwhelm us?

The facts are clear: a more or less stable pool of heroin addicts has been getting older, with relatively

James Q. Wilson, “Against the Legalization of Drugs.” Reprinted from Commentary, February 1990, by permission; copyright © 2018 by Commentary, Inc.

644 Á  PART 4: ETHICAL ISSUES

have been readily available at the neighborhood drug- store, probably at the same counter where the heroin was sold. No need to travel to big cities or unfamiliar neighborhoods—heroin could have been purchased anywhere, perhaps by mail order.

There would no longer have been any financial or medical reason to avoid heroin use. Anybody could have afforded it. We might have tried to prevent chil- dren from buying it, but as we have learned from our efforts to prevent minors from buying alcohol and tobacco, young people have a way of penetrating mar- kets theoretically reserved for adults. Returning Viet- nam veterans would have discovered that Omaha and Raleigh had been converted into the pharmaceutical equivalent of Saigon.

Under these circumstances, can we doubt for a moment that heroin use would have grown expo- nentially? Or that a vastly larger supply of new users would have been recruited? Professor Friedman is a Nobel Prize-winning economist whose understanding of market forces is profound. What did he think would happen to consumption under his legalized regime? Here are his words: “Legalizing drugs might increase the number of addicts, but it is not clear that it would. Forbidden fruit is attractive, particularly to the young.”

Really? I suppose that we should expect no increase in Porsche sales if we cut the price by 95 percent, no increase in whiskey sales if we cut the price by a com- parable amount—because young people only want fast cars and strong liquor when they are “forbidden.” Perhaps Friedman’s uncharacteristic lapse from the obvious implications of price theory can be explained by a misunderstanding of how drug users are recruited. In his 1972 essay he said that “drug addicts are deliber- ately made by pushers, who give likely prospects their first few doses free.” If drugs were legal it would not pay anybody to produce addicts, because everybody would buy from the cheapest source. But as every drug expert knows, pushers do not produce addicts. Friends or acquaintances do. In fact, pushers are usually reluc- tant to deal with non-users because a non-user could be an undercover cop. Drug use spreads in the same way any fad or fashion spreads: somebody who is already a user urges his friends to try, or simply shows already-eager friends how to do it.

deaths had dropped to a fraction of what they had been in 1970.

Alas, treatment did not seem to explain much of the cessation in drug use. Treatment programs can and do help heroin addicts, but treatment did not explain the drop in the number of new users (who by definition had never been in treatment) nor even much of the reduction in the number of experi- enced users.

No one knows how much of the decline to attribute to personal observation as opposed to high prices or reduced supply. But other evidence suggests strongly that price and supply played a large role. In 1972 the National Advisory Council was especially worried by the prospect that U.S. servicemen returning to this country from Vietnam would bring their heroin habits with them. Fortunately, a brilliant study by Lee Robins of Washington University in St. Louis put that fear to rest. She measured drug use of Vietnam veterans shortly after they had returned home. Though many had used her- oin regularly while in Southeast Asia, most gave up the habit when back in the United States. The reason: here, heroin was less available and sanctions on its use were more pronounced. Of course, if a veteran had been will- ing to pay enough—which might have meant travel- ing to another city and would certainly have meant making an illegal contact with a disreputable dealer in a threatening neighborhood in order to acquire a (possi- bly) dangerous dose—he could have sustained his drug habit. Most veterans were unwilling to pay this price, and so their drug use declined or disappeared.

RELIVING THE PAST

Suppose we had taken Friedman’s advice in 1972. What would have happened? We cannot be entirely certain, but at a minimum we would have placed the young heroin addicts (and, above all, the prospective addicts) in a very different position from the one in which they actually found themselves. Heroin would have been legal. Its price would have been reduced by 95 percent (minus whatever we chose to recover in taxes.) Now that it could be sold by the same people who make aspi- rin, its quality would have been assured—no poisons, no adulterants. Sterile hypodermic needles would

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Compared to the United States, the numbers were small. In 1960 there were 68 heroin addicts known to the British government; by 1968 there were 2,000 in treatment and many more who refused treatment. (They would refuse in part because they did not want to get methadone at a clinic if they could get heroin on the street.) Richard Hartnoll estimates that the actual number of addicts in England is five times the num- ber officially registered. At a minimum, the number of British addicts increased by thirtyfold in ten years; the actual increase may have been much larger.

In the early 1980’s the numbers began to rise again, and this time nobody doubted that a real epidemic was at hand. The increase was estimated to be 40 percent a year. By 1982 there were thought to be 20,000 heroin users in London alone. Geoffrey Pearson reports that many cities—Glasgow, Liverpool, Manchester, and Sheffield among them—were now experiencing a drug problem that once had been largely confined to Lon- don. The problem, again, was supply. The country was being flooded with cheap, high-quality heroin, first from Iran and then from Southeast Asia.

The United States began the 1960’s with a much larger number of heroin addicts and probably a bigger at-risk population than was the case in Great Britain. Even though it would be foolhardy to suppose that the British system, if installed here, would have worked the same way or with the same results, it would be equally foolhardy to suppose that a combination of heroin available from leaky clinics and from street dealers who faced only minimal law-enforcement risks would not have produced a much greater increase in heroin use than we actually experienced. My guess is that if we had allowed either doctors or clinics to prescribe heroin, we would have had far worse results than were produced in Britain, if for no other reason than the vastly larger number of addicts with which we began. We would have had to find some way to police thou- sands (not scores) of physicians and hundreds (not dozens) of clinics. If the British civil service found it difficult to keep heroin in the hands of addicts and out of the hands of recruits when it was dealing with a few hundred people, how well would the American civil service have accomplished the same tasks when deal- ing with tens of thousands of people?

But we need not rely on speculation, however plausible, that lowered prices and more abundant sup- plies would have increased heroin usage. Great Britain once followed such a policy and with almost exactly those results. Until the mid-1960’s, British physicians were allowed to prescribe heroin to certain classes of addicts. (Possessing these drugs without a doctor’s pre- scription remained a criminal offense.) For many years this policy worked well enough because the addict patients were typically middle-class people who had become dependent on opiate painkillers while under- going hospital treatment. There was no drug culture. The British system worked for many years, not because it prevented drug abuse, but because there was no problem of drug abuse that would test the system.

All that changed in the 1960’s. A few unscrupu- lous doctors began passing out heroin in wholesale amounts. One doctor prescribed almost 600,000 her- oin tablets—that is, over thirteen pounds—in just one year. A youthful drug culture emerged with a demand for drugs far different from that of the older addicts. As a result, the British government required doctors to refer users to government-run clinics to receive their heroin.

But the shift to clinics did not curtail the growth in heroin use. Throughout the 1960’s the number of addicts increased—the late John Kaplan of Stanford estimated by fivefold—in part as a result of the diver- sion of heroin from clinic patients to new users on the streets. An addict would bargain with the clinic doc- tor over how big a dose he would receive. The patient wanted as much as he could get, the doctor wanted to give as little as was needed. The patient had an advan- tage in this conflict because the doctor could not be certain how much was really needed. Many patients would use some of their “maintenance” dose and sell the remaining part to friends, thereby recruiting new addicts. As the clinics learned of this, they began to shift their treatment away from heroin and toward methadone, an addictive drug that, when taken orally, does not produce a “high” but will block the withdrawal pains associated with heroin abstinence.

Whether what happened in England in the 1960’s was a mini-epidemic or an epidemic depends on whether one looks at numbers or at rates of change.

646 Á  PART 4: ETHICAL ISSUES

mood disorders. Besharov estimates that about 30,000 to 50,000 such babies are born every year, about 7,000 in New York City alone. There may be ways to treat such infants, but from everything we now know the treatment will be long, difficult, and expensive. Worse, the mothers who are most likely to produce crack babies are precisely the ones who, because of poverty or temperament, are least able and willing to obtain such treatment. In fact, anecdotal evidence suggests that crack mothers are likely to abuse their infants.

The notion that abusing drugs such as cocaine is a “victimless crime” is not only absurd but dangerous. Even ignoring the fetal drug syndrome, crack-depen- dent people are, like heroin addicts, individuals who regularly victimize their children by neglect, their spouses by improvidence, their employers by lethargy, and their co-workers by carelessness. Society is not and could never be a collection of autonomous indi- viduals. We all have a stake in ensuring that each of us displays a minimal level of dignity, responsibility, and empathy. We cannot, of course, coerce people into goodness, but we can and should insist that some stan- dards must be met if society itself—on which the very existence of the human personality depends—is to persist. Drawing the line that defines those standards is difficult and contentious, but if crack and heroin use do not fall below it, what does?

The advocates of legalization will respond by sug- gesting that my picture is overdrawn. Ethan Nadel- mann of Princeton argues that the risk of legalization is less than most people suppose. Over 20 million Americans between the ages of eighteen and twenty- five have tried cocaine (according to a government survey), but only a quarter million use it daily. From this Nadelmann concludes that at most 3 percent of all young people who try cocaine develop a problem with it. The implication is clear: make the drug legal and we only have to worry about 3 percent of our youth.

The implication rests on a logical fallacy and a fac- tual error. The fallacy is this: the percentage of occa- sional cocaine users who become binge users when the drug is illegal (and thus expensive and hard to find) tells us nothing about the percentage who will become dependent when the drug is legal (and thus cheap and

BACK TO THE FUTURE

Now cocaine, especially in its potent form, crack, is the focus of attention. Now as in 1972 the government is trying to reduce its use. Now as then some people are advocating legalization. Is there any more reason to yield to those arguments today than there was almost two decades ago?

I think not. If we had yielded in 1972 we almost certainly would have had today a permanent popula- tion of several million, not several hundred thousand, heroin addicts. If we yield now we will have a far more serious problem with cocaine.

Crack is worse than heroin by almost any mea- sure. Heroin produces a pleasant drowsiness and, if hygienically administered, has only the physical side effects of constipation and sexual impotence. Regular heroin use incapacitates many users, especially poor ones, for any productive work or social responsibil- ity. They will sit nodding on a street corner, helpless but at least harmless. By contrast, regular cocaine use leaves the user neither helpless nor harmless. When smoked (as with crack) or injected, cocaine produces instant, intense, and short-lived euphoria. The expe- rience generates a powerful desire to repeat it. If the drug is readily available, repeat use will occur. Those people who progress to “bingeing” on cocaine become devoted to the drug and its effects to the exclusion of almost all other considerations—job, family, children, sleep, food, even sex. Dr. Frank Gawin at Yale and Dr. Everett Ellinwood at Duke report that a substantial percentage of all high-dose, binge users become unin- hibited, impulsive, hypersexual, compulsive, irritable, and hyperactive. Their moods vacillate dramatically, leading at times to violence and homicide.

Women are much more likely to use crack than heroin, and if they are pregnant, the effects on their babies are tragic. Douglas Besharov, who has been fol- lowing the effects of drugs on infants for twenty years, writes that nothing he learned about heroin prepared him for the devastation of cocaine. Cocaine harms the fetus and can lead to physical deformities or neuro- logical damage. Some crack babies have for all practi- cal purposes suffered a disabling stroke while still in the womb. The long-term consequences of this brain damage are lowered cognitive ability and the onset of

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What the nation accomplished then was what most efforts to save people from themselves accomplish: the problem was contained and the number of victims minimized, all at a considerable cost in law enforce- ment and increased crime. Was the cost worth it? I think so, but others may disagree. What are the lives of would-be addicts worth? I recall some people saying to me then, “Let them kill themselves.” I was appalled. Happily, such views did not prevail.

Have we lost today? Not at all. High-rate cocaine use is not commonplace. The National Institute of Drug Abuse (NIDA) reports that less than 5 percent of high-school seniors used cocaine within the last thirty days. Of course this survey misses young people who have dropped out of school and miscounts those who lie on the questionnaire, but even if we inflate the NIDA estimate by some plausible percentage, it is still not much above 5 percent. Medical examiners reported in 1987 that about 1,500 died from cocaine use; hospital emergency rooms reported about 30,000 admissions related to cocaine abuse.

These are not small numbers, but neither are they evidence of a nationwide plague that threatens to engulf us all. Moreover, cities vary greatly in the pro- portion of people who are involved with cocaine. To get city-level data we need to turn to drug tests carried out on arrested persons, who obviously are more likely to be drug users than the average citizen. The National Institute of Justice, through its Drug Use Forecasting (DUF) project, collects urinalysis data on arrestees in 22 cities. As we have already seen, opiate (chiefly heroin) use has been flat or declining in most of these cities over the last decade. Cocaine use has gone up sharply, but with great variation among cities. New York, Philadelphia, and Washington, D.C., all report that two-thirds or more of their arrestees tested posi- tive for cocaine, but in Portland, San Antonio, and Indianapolis the percentage was one-third or less.

In some neighborhoods, of course, matters have reached crisis proportions. Gangs control the streets, shootings terrorize residents, and drug-dealing occurs in plain view. The police seem barely able to contain matters. But in these neighborhoods—unlike at Palo Alto cocktail parties—the people are not calling for legalization, they are calling for help. And often not

abundant). Drs. Gawin and Ellinwood report, in com- mon with several other researchers, that controlled or occasional use of cocaine changes to compulsive and frequent use “when access to the drug increases” or when the user switches from snorting to smoking. More cocaine more potently administered alters, per- haps sharply, the proportion of “controlled” users who become heavy users.

The factual error is this: the federal survey Nadel- mann quotes was done in 1985, before crack had become common. Thus the probability of becoming dependent on cocaine was derived from the responses of users who snorted the drug. The speed and potency of cocaine’s action increases dramatically when it is smoked. We do not yet know how greatly the advent of crack increases the risk of dependency, but all the clinical evidence suggests that the increase is likely to be large.

It is possible that some people will not become heavy users even when the drug is readily available in its most potent form. So far there are no scientific grounds for predicting who will and who will not become dependent. Neither socioeconomic back- ground nor personality traits differentiate between casual and intensive users. Thus, the only way to settle the question of who is correct about the effect of easy availability on drug use, Nadelmann or Gawin and Ellinwood, is to try it and see. But that social experi- ment is so risky as to be no experiment at all, for if cocaine is legalized and if the rate of its abusive use increases dramatically, there is no way to put the genie back in the bottle, and it is not a kindly genie.

HAVE WE LOST?

Many people who agree that there are risks in legaliz- ing cocaine or heroin still favor it because, they think, we have lost the war on drugs. “Nothing we have done has worked” and the current federal policy is just “more of the same.” Whatever the costs of greater drug use, surely they would be less than the costs of our present, failed efforts.

That is exactly what I was told in 1972—and her- oin is not quite as bad a drug as cocaine. We did not surrender and we did not lose. We did not win, either.

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To obtain this fiscal dividend, however, legal- ization’s supporters must first solve an economic dilemma. If they want to raise a lot of money to pay for welfare and treatment, the tax rate on the drugs will have to be quite high. Even if they themselves do not want a high rate, the politicians’ love of “sin taxes” would probably guarantee that it would be high anyway. But the higher the tax, the higher the price of the drug, and the higher the price the greater the likelihood that addicts will turn to crime to find the money for it and that criminal organizations will be formed to sell tax-free drugs at below-market rates. If we managed to keep taxes (and thus prices) low, we would get that much less money to pay for welfare and treatment and more people could afford to become addicts. There may be an optimal tax rate for drugs that maximizes revenue while minimizing crime, bootlegging, and the recruitment of new addicts, but our experience with alcohol does not suggest that we know how to find it.

THE BENEFITS OF ILLEGALITY

The advocates of legalization find nothing to be said in favor of the current system except, possibly, that it keeps the number of addicts smaller than it would otherwise be. In fact, the benefits are more substantial than that.

First, treatment. All the talk about providing “treat- ment on demand” implies that there is a demand for treatment. That is not quite right. There are some drug- dependent people who genuinely want treatment and will remain in it if offered; they should receive it. But there are far more who want only short-term help after a bad crash; once stabilized and bathed, they are back on the street again, hustling. And even many of the addicts who enroll in a program honestly wanting help drop out after a short while when they discover that help takes time and commitment. Drug-dependent people have very short time horizons and a weak capacity for commitment. These two groups—those looking for a quick fix and those unable to stick with a long-term fix—are not easily helped. Even if we increase the num- ber of treatment slots—as we should—we would have to do something to make treatment more effective.

much help has come. Many cities are willing to do almost anything about the drug problem except spend more money on it. The federal government cannot change that; only local voters and politicians can. It is not clear that they will.

It took about ten years to contain heroin. We have had experience with crack for only about three or four years. Each year we spend perhaps $11 billion on law enforcement (and some of that goes to deal with marijuana) and perhaps $2 billion on treatment. Large sums, but not sums that should lead anyone to say, “We just can’t afford this any more.”

The illegality of drugs increases crime, partly because some users turn to crime to pay for their hab- its, partly because some users are stimulated by cer- tain drugs (such as crack or PCP) to act more violently or ruthlessly than they otherwise would, and partly because criminal organizations seeking to control drug supplies use force to manage their markets. These also are serious costs, but no one knows how much they would be reduced if drugs were legalized. Addicts would no longer steal to pay black-market prices for drugs, a real gain. But some, perhaps a great deal, of that gain would be offset by the great increase in the number of addicts. These people, nodding on heroin or living in the delusion-ridden high of cocaine, would hardly be ideal employees. Many would steal simply to support themselves, since snatch-and-grab, opportu- nistic crime can be manged [sic] even by people unable to hold a regular job or plan an elaborate crime. Those British addicts who get their supplies from government clinics are not models of law-abiding decency. Most are in crime, and though their per-capita rate of crimi- nality may be lower thanks to the cheapness of their drugs, the total volume of crime they produce may be quite large. Of course, society could decide to support all unemployable addicts on welfare, but that would mean that gains from lowered rates of crime would have to be offset by large increases in welfare budgets.

Proponents of legalization claim that the costs of having more addicts around would be largely if not entirely offset by having more money available with which to treat and care for them. The money would come from taxes levied on the sale of heroin and cocaine.

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fundamental moral significance attaches to either. But if we believe—as I do—that dependency on certain mind-altering drugs is a moral issue and that their ille- gality rests in part on their immorality, then legalizing them undercuts, if it does not eliminate altogether, the moral message.

That message is at the root of the distinction we now make between nicotine and cocaine. Both are highly addictive; both have harmful physical effects. But we treat the two drugs differently, not simply because nicotine is so widely used as to be beyond the reach of effective prohibition, but because its use does not destroy the user’s essential humanity. Tobacco shortens one’s life, cocaine debases it. Nicotine alters one’s habits, cocaine alters one’s soul. The heavy use of crack, unlike the heavy use of tobacco, corrodes those natural sentiments of sympathy and duty that constitute our human nature and make possible our social life. To say, as does Nadelmann, that distin- guishing morally between tobacco and cocaine is “lit- tle more than a transient prejudice” is close to saying that morality itself is but a prejudice.

THE ALCOHOL PROBLEM

Now we have arrived where many arguments about legalizing drugs begin: is there any reason to treat heroin and cocaine differently from the way we treat alcohol?

There is no easy answer to that question because, as with so many human problems, one cannot decide simply on the basis either of moral principles or of individual consequences; one has to temper any pol- icy by a common-sense judgment of what is possible. Alcohol, like heroin, cocaine, PCP, and marijuana, is a drug—that is, a mood-altering substance—and consumed to excess it certainly has harmful conse- quences: auto accidents, barroom fights, bedroom shootings. It is also, for some people, addictive. We cannot confidently compare the addictive powers of these drugs, but the best evidence suggests that crack and heroin are much more addictive than alcohol.

Many people, Nadelmann included, argue that since the health and financial costs of alcohol abuse are so much higher than those of cocaine or heroin

One thing that can often make it more effective is compulsion. Douglas Anglin of UCLA, in common with many other researchers, has found that the lon- ger one stays in a treatment program, the better the chances of a reduction in drug dependency. But he, again like most other researchers, has found that drop- out rates are high. He has also found, however, that patients who enter treatment under legal compulsion stay in the program longer than those not subject to such pressure. His research on the California civil- commitment program, for example, found that heroin users involved with its required drug-testing program had over the long term a lower rate of heroin use than similar addicts who were free of such constraints. If for many addicts compulsion is a useful component of treatment, it is not clear how compulsion could be achieved in a society in which purchasing, possessing, and using the drug were legal. It could be managed, I suppose, but I would not want to have to answer the challenge from the American Civil Liberties Union that it is wrong to compel a person to undergo treat- ment for consuming a legal commodity.

Next, education. We are now investing substan- tially in drug-education programs in the schools. Though we do not yet know for certain what will work, there are some promising leads. But I wonder how credible such programs would be if they were aimed at dissuading children from doing something perfectly legal. We could, of course, treat drug educa- tion like smoking education: inhaling crack and inhal- ing tobacco are both legal, but you should not do it because it is bad for you. That tobacco is bad for you is easily shown; the Surgeon General has seen to that. But what do we say about crack? It is pleasurable, but devoting yourself to so much pleasure is not a good idea (though perfectly legal)? Unlike tobacco, cocaine will not give you cancer or emphysema, but it will lead you to neglect your duties to family, job, and neigh- borhood? Everybody is doing cocaine, but you should not?

Again, it might be possible under a legalized regime to have effective drug-prevention programs, but their effectiveness would depend heavily, I think, on first having decided that cocaine use, like tobacco use, is purely a matter of practical consequences; no

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for changing it—living in drug-free therapeutic com- munities, becoming faithful members of Alcoholics Anonymous or Narcotics Anonymous—require great personal commitment, a quality that is, alas, in short supply among the very persons—young people, dis- advantaged people—who are often most at risk for addiction.

Suppose that today we had, not 15 million alcohol abusers, but half a million. Suppose that we already knew what we have learned from our long experience with the widespread use of alcohol. Would we make whiskey legal? I do not know, but I suspect there would be a lively debate. The Surgeon General would remind us of the risks alcohol poses to pregnant women. The National Highway Traffic Safety Administra- tion would point to the likelihood of more highway fatalities caused by drunk drivers. The Food and Drug Administration might find that there is a nontrivial increase in cancer associated with alcohol consump- tion. At the same time the police would report great difficulty in keeping illegal whiskey out of our cities, officers being corrupted by bootleggers, and alcohol addicts often resorting to crime to feed their habit. Lib- ertarians, for their part, would argue that every citizen has a right to drink anything he wishes and that drink- ing is, in any event, a “victimless crime.”

However the debate might turn out, the central fact would be that the problem was still, at that point, a small one. The government cannot legislate away the addictive tendencies in all of us, nor can it remove completely even the most dangerous addictive sub- stances. But it can cope with harms when the harms are still manageable.

SCIENCE AND ADDICTION

One advantage of containing a problem while it is still containable is that it buys time for science to learn more about it and perhaps to discover a cure. Almost unnoticed in the current debate over legalizing drugs is that basic science has made rapid strides in identify- ing the underlying neurological processes involved in some forms of addiction. Stimulants such as cocaine and amphetamines alter the way certain brain cells communicate with one another. That alteration is

abuse, it is hypocritical folly to devote our efforts to preventing cocaine or drug use. But as Mark Kleiman of Harvard has pointed out, this comparison is quite misleading. What Nadelmann is doing is showing that a legalized drug (alcohol) produces greater social harm than illegal ones (cocaine and heroin). But of course. Suppose that in the 1920’s we had made heroin and cocaine legal and alcohol illegal. Can anyone doubt that Nadelmann would now be writing that it is folly to continue our ban on alcohol because cocaine and heroin are so much more harmful?

And let there be no doubt about it—widespread heroin and cocaine use are associated with all manner of ills. Thomas Bewley found that the mortality rate of British heroin addicts in 1968 was 28 times as high as the death rate of the same age group of non-addicts, even though in England at the time an addict could obtain free or low-cost heroin and clean needles from British clinics. Perform the following mental experi- ment: suppose we legalized heroin and cocaine in this country. In what proportion of auto fatalities would the state police report that the driver was nodding off on heroin or recklessly driving on a coke high? In what proportion of spouse-assault and child-abuse cases would the local police report that crack was involved? In what proportion of industrial accidents would safety investigators report that the forklift or drill- press operator was in a drug-induced stupor or frenzy? We do not know exactly what the proportion would be, but anyone who asserts that it would not be much higher than it is now would have to believe that these drugs have little appeal except when they are illegal. And that is nonsense.

An advocate of legalization might concede that social harm—perhaps harm equivalent to that already produced by alcohol—would follow from making cocaine and heroin generally available. But at least, he might add, we would have the problem “out in the open” where it could be treated as a matter of “pub- lic health.” That is well and good, if we knew how to treat—that is, cure—heroin and cocaine abuse. But we do not know how to do it for all the people who would need such help. We are having only limited success in coping with chronic alcoholics. Addictive behavior is immensely difficult to change, and the best methods

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at a reasonable cost will be much greater than if the problem is a few million chronic users of legal sub- stances. Once a drug is legal, not only will its use increase but many of those who then use it will prefer the drug to the treatment: they will want the pleasure, whatever the cost to themselves or their families, and they will resist—probably successfully—any effort to wean them away from experiencing the high that comes from inhaling a legal substance.

IF I AM WRONG . . .

No one can know what our society would be like if we changed the law to make access to cocaine, heroin, and PCP easier. I believe, for reasons given, that the result would be a sharp increase in use, a more wide- spread degradation of the human personality, and a greater rate of accidents and violence.

I may be wrong. If I am, then we will needlessly have incurred heavy costs in law enforcement and some forms of criminality. But if I am right, and the legalizers prevail anyway, then we will have consigned millions of people, hundreds of thousands of infants, and hundreds of neighborhoods to a life of oblivion and disease. To the lives and families destroyed by alcohol we will have added countless more destroyed by cocaine, heroin, PCP, and whatever else a basement scientist can invent.

Human character is formed by society; indeed, human character is inconceivable without society, and good character is less likely in a bad society. Will we, in the name of an abstract doctrine of radical individualism, and with the false comfort of suspect predictions, decide to take the chance that somehow individual decency can survive amid a more general level of degradation?

I think not. The American people are too wise for that, whatever the academic essayists and cocktail- party pundits may say. But if Americans today are less wise than I suppose, then Americans at some future time will look back on us now and wonder, what kind of people were they that they could have done such a thing?

complex and not entirely understood, but in simpli- fied form it involves modifying the way in which a neurotransmitter called dopamine sends signals from one cell to another.

When dopamine crosses the synapse between two cells, it is in effect carrying a message from the first cell to activate the second one. In certain parts of the brain that message is experienced as pleasure. After the mes- sage is delivered, the dopamine returns to the first cell. Cocaine apparently blocks this return, or “reuptake,” so that the excited cell and others nearby continue to send pleasure messages. When the exaggerated high produced by cocaine-influenced dopamine finally ends, the brain cells may (in ways that are still a matter of dispute) suffer from an extreme lack of dopamine, thereby making the individual unable to experience any pleasure at all. This would explain why cocaine users often feel so depressed after enjoying the drug. Stimulants may also affect the way in which other neurotransmitters, such as serotonin and noradrena- line, operate.

Whatever the exact mechanism may be, once it is identified it becomes possible to use drugs to block either the effect of cocaine or its tendency to produce dependency. There have already been experiments using desipramine, imipramine, bromocriptine, car- bamazepine, and other chemicals. There are some promising results.

Tragically, we spend very little on such research, and the agencies funding it have not in the past occupied very influential or visible posts in the fed- eral bureaucracy. If there is one aspect of the “war on drugs” metaphor that I dislike, it is its tendency to focus attention almost exclusively on the troops in the trenches, whether engaged in enforcement or treat- ment, and away from the research-and-development efforts back on the home front where the war may ulti- mately be decided.

I believe that the prospects of scientists in control- ling addiction will be strongly influenced by the size and character of the problem they face. If the problem is a few hundred thousand chronic, high-dose users of an illegal product, the chances of making a difference

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Gun Control Hugh LaFollette

and offer the broad outline of an appropriate solution. To simplify discussion, I adopt the following locutions: those opposed to most abolition and most restrictions advocate a “serious right to bear arms,” while those supporting more widespread abolition and more sub- stantial restrictions are “gun control advocates.” This simplification, of course, masks significant disagree- ments among advocates of each position.

I. JUSTIFYING PRIVATE OWNERSHIP OF GUNS

A. A Moral Question

Do citizens have a “serious right to bear arms”? This is a moral question, not a constitutional one. For even if the Constitution did grant this right, we should deter- mine if there are sufficiently compelling arguments against private gun ownership to warrant changing the Constitution. By contrast, if this were not a consti- tutional right, we should determine if there are strong reasons why the state should not ban or control guns and if these reasons are sufficiently compelling to make this a constitutional right. Most defenders of private gun ownership claim we do have a moral right—as well as a constitutional one—and that this right is not an ordinary right but a fundamental one.

1. A fundamental right.—If they are correct, they would have the justificatory upper hand. Were this a fundamental right, it would not be enough to show that society would benefit from controlling access to guns.1 The arguments for gun control would have to be overwhelming. Yet there is also a hefty cost in claiming that this is a fundamental right: the evidence for the right must meet especially rigorous standards.

What makes a right fundamental? A fundamental right is a non-derivative right protecting a fundamental interest. Not every interest we individually cherish is fundamental. Since most interests are prized by some- one, such a notion of “fundamental interest” would be anemic, serving no special justificatory role. Fundamen- tal interests are special; they are integrally related to a

Many of us assume that we must either oppose or support gun control. Not so. We have a range of alter- natives. Even this way of speaking oversimplifies our choices since there are two distinct scales on which to place alternatives. One scale concerns the degree (if at all) to which guns should be abolished. This scale moves from those who want no abolition (NA) of any guns, through those who want moderate abolition (MA)— that is, to forbid access to some subclasses of guns—to those who want absolute abolition (AA). The second scale concerns the restrictions (if any) on those guns that are available to private citizens. This scale moves from those who want absolute restrictions (AR) through those who want moderate restrictions (MR) to those who want no restrictions (NR) at all. Restrictions vary not only in strength but also in content. We could restrict who owns guns, how they obtain them, where and how they store them, and where and how they carry them.

Our options are further complicated by the union of these scales. On one extreme no private citizen can own any guns (AA, which is functionally equivalent to AR), while at the other extreme, every private citi- zen can own any gun with no restrictions (NA+NR). But once we leave those extremes, which few people hold, the options are defined by a pair of coordinates along these distinct scales. While most people embrace positions on the “same” end of both scales, others embrace more exotic mixtures: some will want few weapons available to private citizens but virtually no restrictions on those guns that are available (MA+NR), while others may prefer making most guns available but want to seriously restrict them (NA+MR).

So our choice is not merely to support or oppose gun control but to decide who can own which guns under what conditions. Although I cannot pretend to provide a definitive account here, I can isolate the central issues

Hugh LaFollette, “Gun Control,” Ethics 110 (January 2000): 263– 81, © 2000 by The University of Chicago. Reprinted by permission of The University of Chicago Press.

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a significant social payoff—although most fundamen- tal rights do. Still, we minimally assume fundamental rights (right types) do not harm society.

This provides a framework for evaluating people’s claims that a right is fundamental. Advocates must show that and how granting the right protects individu- als’ fundamental interests, and they must be prepared to respond to objections that granting that right type will harm society. These are serious obstacles for gun advo- cates. It is difficult to see that a serious right to bear arms satisfies either of these requirements, let alone both.

First, I see no compelling reason to think that own- ing a gun is a fundamental interest. Other fundamental interests are necessary to one’s flourishing no matter what her particular desires, interests, and beliefs. It is difficult to see how this is true of guns. Moreover, the interests protected by paradigmatic fundamental rights—our interests in unfettered speech, freedom of religion, and freedom of association—are not merely means to my flourishing, they are elements constitut- ing it. By contrast, having a gun in my bed stand, in my closet, or on my person might be a means for me to achieve my ends, but they are not constitutive ele- ments of my flourishing. Hence, owning guns is not a fundamental interest.

Wheeler disagrees. He argues that the right to bear arms is fundamental since guns are the best way to protect our fundamental interest in self-defense.4 However, on his view, guns are not inherently valu- able; they are valuable only as a means of self-defense.5 I fail to see how this could make the right to bear arms fundamental. Not every means to a fundamental inter- est is a fundamental right. That would arguably make most actions protected by fundamental rights. None- theless, the connection between owning guns and self- defense is an important issue that I address later.

Others might claim that gun ownership is an essen- tial element for the flourishing of a proper citizen. A proper citizen, on this view, is one capable of provid- ing for and defending his family. Although each citizen can (generally) fend for himself, citizens come together to form a limited government to provide those few needs they cannot easily satisfy on their own. However, this vision of the citizen is very controversial, more con- troversial than the interest in gun ownership it seeks to

person’s chance of living a good life, whatever her particu- lar interests, desires, and beliefs happen to be. For example, living in a society that protects speech creates an envi- ronment within which each of us can pursue our partic- ular interests, goals, needs, and development, whatever our interests happen to be. Is the purported right to bear arms like this paradigmatic fundamental right?

Even if it were, that would not establish straight- forwardly that it is impermissible to abolish or restrict private ownership of guns. After all, fundamental rights standardly have conditions, boundaries, or restrictions on them. Some rights, like the right to vote, are conditional upon reaching a specified age, and they can be forfeited by emigrants and imprisoned felons. In addition, most right tokens can be restricted or overridden when the exercise of that right harms others. For example, my right to free religious expres- sion gives me wide discretion in how I exercise my religion. I can remove my kids from high school and exclude them from selected school activities (Wiscon- sin v. Yoder, 406 U.S. 205 [1972]; Moody v. Cronin, 484 F. Supp. 270 [1979]). I can sacrifice animals (Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 [1993]). Nonetheless, it does not permit me to sacri- fice humans. Nor does my right to free speech permit me to slander someone or to preach outside her win- dow at 2:00 a.m. Tokens of fundamental rights may be restricted to protect others from serious harms arising from the exercise of those rights.

Of course rights would not be worth much if they were subject straightforwardly to the wishes of the majority. We fiercely defend fundamental right types although their tokens sometimes undercut society’s interests. We cannot restrict or put conditions on fun- damental rights except for compelling reasons, and individuals cannot forfeit their fundamental rights (if they can forfeit them at all) except for overwhelming reasons. Still, although tokens of a right sometimes run counter to the majority’s wishes, we should not infer that rights standardly undermine the public interest.2 Fundamental rights (freedom of speech, freedom of association, etc.) benefit society as well as individu- als. Permitting free speech, religion, and association is the best—and arguably the only—way for society to uncover the truth.3 Of course, not every right has such

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risky to others, the state can legitimately restrict drink- ing while driving. Whether privately owning guns is similarly risky is something we must discover.

B. Bad Public Policy

If private gun ownership were not a derivative right, it might still be bad policy to substantially restrict or abolish guns. There are always costs of enforcing a law. Sometimes these costs are prohibitive, especially when the public does not support that law. If the pub- lic will not voluntarily comply with the law, then the state must try to force compliance. In their efforts to do so, they invariably employ excessively intrusive methods. Such methods never entirely succeed, and, to the extent that they do, they undermine public con- fidence in and support for all law. Consider America’s experience with Prohibition. Although one of Prohi- bition’s aims—to protect innocents from harm caused by those under the influence—was laudable, the law was unenforceable and excessively costly. Conse- quently, less than two decades after Prohibition was passed via constitutional amendment, it was repealed.

The cost of enforcing any law—and especially an unpopular law—weighs against making any behavior illegal unless we have solid evidence that the behavior is seriously harmful. If we adopt a weaker standard—if we criminalize every action type whose tokens occa- sionally lead to some harm—then we would criminal- ize most behavior. As a result, even if there were no right to bear arms, we should still not seek to substan- tially limit private ownership of guns unless we had good reason to think that would prevent serious harm.

C. Summing Up: Justifying the Private Ownership of Guns

The preceding analysis isolates three questions we must answer in deciding whether people should be permit- ted to own guns: (1) How important is owning a gun to some people? (2) What are the consequences of pri- vate gun ownership? and (3) Is abolishing or restricting private ownership of guns bad policy? Although gun ownership is not a fundamental interest, many people want to own guns and think they have good reason to do so. That is sufficient to show that serious gun control

justify. It assumes each of us has far more control over our lives than we arguably do have. Furthermore, even if this conception were defensible, it would not estab- lish a fundamental right to bear arms since guns are mere means to independent citizenship. They are not constitutive of that citizenship. Hence, it is doubtful that the purported right to bear arms satisfies the first requirement of a fundamental right.

Second, we have evidence that granting this right type does harm society. If this evidence is at all cred- ible, then granting this purported right would not satisfy the second requirement either. But this does not resolve the issue. Although people do not have a fundamental right to own guns, gun control might be wrong because it violates some derivative right or sim- ply because it is bad public policy.

2. A derivative right.—Suppose we determined that the right to bear arms is not a fundamental right but a derivative right. This would still be a significant find- ing since derivative rights, like fundamental ones, can- not be restricted without good evidence. Prima facie, I think we have such a derivative right. Each of us has a fundamental right of noninterference: we should be allowed to live our lives as we wish so long as we do not thereby harm others. This is a right each of us needs no matter what our particular interests. That general right derivatively protects personally important activities.

For instance, I would be furious if the state forbade me from sharing a pint with a friend. Nonetheless, although consuming alcohol is a particular inter- est and enjoyment I have, it is not a constitutive ele- ment of the good life in the way that the freedoms of speech, religion, and association are. That is why I do not have a fundamental right to consume alco- hol. Consequently, the conditions under which my consumption of alcohol can be legitimately restricted are more lax than they would be if the activity were a fundamental interest.

Nonetheless, since I have a prima facie derivative right to consume alcohol, the state can legitimately abolish or restrict alcohol consumption only if it can show that doing so is an effective means of protecting the public from harm. They can do that in some cases: people who consume substantial amounts of alcohol are dangerous drivers. Since this behavior is unacceptably

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is such that we can confidently predict they will cause harm. The two questions are intricately related since inherently dangerous objects are more likely to cause serious harm. Yet they are separable because some dan- gerous objects are not inherently so. Automobiles, alco- hol, and cigarettes were not designed to cause harm, but all are causally implicated in many people’s deaths. Other things being equal, we are more prone to control inherently dangerous objects than objects that merely have harm as an unwanted side effect.

Guns, unlike autos, are inherently dangerous. Guns were invented for the military; they were designed to cause (and threaten) harm.6 The same aims determine the ways in which guns are rede- signed: they are changed to make them more effi- cient at causing harm. In contrast, a significant aim of redesigning automobiles is to make them less dan- gerous. To some extent these efforts have succeeded. Although the absolute number of annual traffic fatali- ties has not noticeably declined, the number of fatali- ties per mile traveled has declined 75 percent since the 1950s.7 We have enhanced the auto’s original aim of efficient transportation while lessening harmful side effects. That is why we can sensibly say that the auto- mobile is not inherently dangerous despite the fact that it causes harm. We cannot say the same for guns.

The literature of gun advocates supports my con- tention that guns are inherently dangerous. They advo- cate the private ownership of guns to prevent crime and to arm the militia. Guns can serve these purposes only because they are an effective means of inflicting and threatening harm. Even guns normally not used to harm humans have purposes that ride piggyback on this fundamental purpose. Shotguns are used to kill animals, and target guns are designed to be espe- cially accurate. Taken together, this evidence supports the common view that guns are inherently dangerous. That is why we have special reasons to regulate them.

Although inherently dangerous, guns are far less dangerous than weapons of mass destruction, and they do have seemingly legitimate uses. That is why we must show just how risky they are before we can legitimately abolish or seriously restrict them. We must also determine if they have sufficient benefits such that we should permit them, even if risky.

would undermine gun owners’ interests. Moreover, there is some reason to think that serious gun control in countries with a strong tradition of gun ownership would be bad policy. Therefore, we should certainly not abolish, and arguably should not restrict, private ownership of guns without good reason. Are there good reasons? To answer this question, we must determine the effects of private gun ownership: (a) How likely is it that private gun ownership seriously harms others? and (b) Are there substantial benefits of gun ownership that might counterbalance any harm?

II. HARM, DANGER, AND RISK

We must be careful when we say that guns cause harm. Guns kill people because agents use them to kill people (or misuse them in ways that cause people to be killed). As the National Rifle Association (NRA) puts it: “Guns don’t kill people, people do.” In one sense their claim is uncontroversial: murder is the act of an agent, and guns are not agents. In another way, their claim is irrelevant. No gun control advocate claims, hints, or suggests that guns are moral agents. Guns are objects, and objects do no evil. But not all objects are created equal. Imagine the NNWA (National Nuclear Weapons Association) claim- ing that “tactical nuclear weapons don’t kill people, people do.” While in one sense their claim would be true, in a more profound way, it would be ludicrous.

Of course guns are not nuclear weapons. Guns are not as dangerous as nuclear weapons, and some guns have seemingly legitimate uses. The question is whether the character of guns makes them especially harmful. We know that some objects—tactical nuclear weapons, biochemical weapons, live grenades, and so forth, are much more dangerous than feathers, ice cream, and butter knives. Where do guns fall along this continuum?

There are two distinct but related questions: (1) Are guns inherently dangerous? and (2) What is the empiri- cal probability that guns cause serious harm? “Inher- ently dangerous” objects are those whose nature or design is sufficient to justify our prediction that they will cause harm independent of any empirical evi- dence. We do not need double-blind empirical studies to know that nuclear weapons are inherently danger- ous: they were designed to cause harm, and their nature

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we think Roger (an adult) stupidly engages in a danger- ous activity (sky diving or boxing or racing), we might think Roger’s autonomy requires that we permit it. Our commitment to individual liberty weighs against the government’s abolishing or restricting the private ownership of guns as a way of limiting harm.8 Sec- ond, some actions (smoking in public places) that are acceptably risky to Roger might be unacceptably risky to others. Are guns also unacceptably risky to others?

Put differently, gun control does not concern what private individuals should do but what govern- ments should allow private individuals to do. We must determine the risk of permitting the private ownership of guns, constrained by these complicating consider- ations. To illustrate how this might work, consider the following example. We have evidence that a number of wrecks are caused by drivers using cellular phones. Roger wants to use his cellular phone while commut- ing to work. He decides the inconvenience of not using the cellular phone is worse than the small probability of personal harm. He might overestimate the incon- venience of not being able to use his cellular phone or insufficiently appreciate the seriousness of the risk. However, since he is an adult, we might think we should not interfere with his decision to use a cellular phone while driving. That is what autonomy requires. Yet Roger is not the only person at risk. Passengers in his or other cars may also be harmed. The seriousness of harm to them must also be considered in deciding to permit or restrict drivers’ use of cellular phones.

These judgments of risk must be further tem- pered by the costs of enforcement mentioned earlier. Although we know that using cellular phones while driving may lead to accidents, we also know other activ- ities may do the same—drinking coffee while driving, eating a donut, looking at a map, talking to a passenger, driving more than two hours without stopping, driv- ing on less than six hours of sleep, driving home after a bad day at the office, and so forth. We can reasonably presume that we should not make all these activities illegal. The probabilities of serious harm are small, and enforcing such laws would require far-reaching intru- sions into everyone’s life. When the risks of an activity’s causing grave harm to many others are small and the costs of interference are significant, then we should not criminalize the action. But as the probability of grave

A. An Intermediate Conclusion

We have shown that owning guns is not a fundamen- tal interest and that guns are inherently dangerous. That is why we cannot categorically dismiss all forms of gun control. However, this is a weak conclusion. For although guns are inherently dangerous, they may not be so dangerous as to justify more than a system of minimal registration. What seems clear is that their inherent dangerousness precludes the idea that guns cannot be subject to governmental control. Some form of gun control cannot be categorically dismissed. Before determining the actual danger that guns pres- ent, we should first determine how risky an action must be before we can justifiably restrict it.

B. Risk

Humans are notoriously bad at judging risk. Often we are unaware of, or are inattentive to, the seriousness of risks. For instance, we may drive while inebriated. At other times we overestimate the risks. For instance, we may refuse to fly because we think it is too dangerous. A proper determination of risk would be based on a careful accounting of the action’s costs and benefits. We should determine (1) the probability of harm, (2) the seriousness of harm (the product of the gravity and extent of the harm), (3) the probability of achieving the benefits, (4) the significance of the benefits (the product of the importance and extent of the benefit), and then act accordingly. Of course even if we reach the same determination to the above questions, we might still disagree about whether to act: we might disagree about what risks are worth which benefits. Nonetheless, we can all agree that (a) as the likelihood and seriousness of harm increase, we have increased reason to refrain from acting, while (b) as the likelihood and importance of the benefits increase, we have increased reasons to act. We can import these lessons into the law.

C. Legal Rules

But not straightforwardly. The issue is not whether we should own guns if they are legal, although that is a fascinating question. The question is whether the state should curtail private gun ownership. The foregoing considerations are relevant but not decisive. The deci- sion to permit private ownership of guns is shaped by two factors pulling in opposite directions. First, even if

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are inherently dangerous but because—if gun-control advocates are right—permitting private ownership of guns is very risky.

III. WHAT WE NEED TO KNOW

We can now specify what we must know in order to intelligently decide whether to prohibit or restrict gun ownership (or any other risky action): (1) Is there a statistically significant correlation between the action (private ownership of guns) and harm (homicides, accidental deaths, suicides, armed robbery, etc.)? (2) Do we have good reason to think this correlation indicates that the purportedly risky action causes the harm? (3) How serious are these resultant harms? and (4) How important is the activity that the state wishes to control (a) to the individual agent and (b) to the society?

In deciding whether to restrict the behavior, we must balance these considerations using the follow- ing general guidelines: (1) If we have evidence that the behavior causes harm, then we have some reason to limit the behavior. As the evidence increases, the reasons for prohibiting the behavior increase. As the probability that the behavior will lead to serious harm (the product of the gravity and extent of the harm) approaches certainty, then the reasons for forbidding the behavior become very strong. (2) The more grave and widespread the potential harm, the more reason we have to constrain the behavior. If the gravity and extent of the harm are substantial, we might constrain the behavior even if our evidence that the behavior causes the harm is moderate. (3) The higher the prob- ability that allowing the action will have important benefits, the stronger the reason to permit it. The greater the benefits, the greater the reason to permit it.

Libertarians might claim that individuals’ rights are so strong that the state cannot justifiably intervene even to constrain those who put others at extreme risk. The state should not proscribe risky actions, although they can intervene after harm has occurred. This use of “risk” is misleading. If on one occasion I drive while inebri- ated, I engage in a risky action: there is some probability that I and others will be harmed. However, permitting people to drive while inebriated will definitely cause harm, although we cannot specify in advance who will be harmed. A personal decision to own a gun is risky in

and widespread harm increases, then, other things being equal, we should criminalize the action.

For instance, when people are released from prison (and not just on parole) they have “paid their debt to soci- ety.” Yet we do not permit them to own a gun. We judge that they are more likely to harm others. Of course not all of them—and likely not a majority of them—would harm others if they were permitted to own a gun. They are pre- vented from owning guns because they are members of a group statistically more likely to cause harm: we judge that allowing former felons to own guns is unacceptably risky. The NRA and most other gun advocates agree.

Someone might counter, though, that we deny fel- ons the right to own guns not because we judge that permitting them to own guns is risky but that they, by their actions, have forfeited the right to own guns. But that is not the best justification for our action. Why should felons forfeit their right after they have served their time and are free of all obligations to the state? For instance, while imprisoned in the United States, felons do forfeit their right against unlawful searches and seizures. But once they are released from prison (and are no longer on parole or probation), a former felon has an unconditional right against unlawful searches and seizures—the same as every other United States resident.

At first glance, there is some reason to think that fel- ons who use guns in the commission of a crime could forfeit their right to own a gun in the same way that drunk drivers lose their licenses. However, drunk drivers do not lose their license forever, while in most jurisdic- tions felons are never permitted to own guns. Moreover, the prohibition against former felons’ owning guns is not limited to those who use guns in the commission of a crime. Hence, it is more plausible to think that we can prevent released felons from owning guns because we judge that they are more likely to commit crimes with guns.

This is our rationale for all laws proscribing risky actions. Every drunk driver does not cause an accident. Most do not. Yet we do not flinch at laws forbidding drunk driving. For it is not merely that drunk drivers are statistically more likely to cause harm; they are more likely to cause harm because they are inebriated. We can arguably use the same rationale to justify restricting access to guns. We restrict access not only because guns

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would be more likely to use that gun. Although they could resort to a knife or a baseball bat, they would be less likely to do so, and, even if they did, those weapons are less likely to cause a serious or fatal injury. (3) When people are depressed, they can act in ways they would not act normally. If they had a gun close to hand, they would be more likely to kill themselves. Although they might slit their wrists or take pills, they would be less likely to do so, and, even if they did, they would be less likely to kill themselves. (4) When people handle guns, even for a legitimate purpose, the probability of serious or fatal injury to themselves or others increases. When children have access to guns, the likelihood of an acci- dent increases still more.

The conclusion of the armchair argument is clear: the more widely available guns are, the more people will be murdered, will commit suicide, and will die of accidents. This is a plausible armchair prediction. Perhaps it is wrong. Maybe it is reasonable but overin- flated. Or it might be that the prediction is well founded but that the widespread availability of guns is nonethe- less justified. What is apparent is that the claim that widespread availability of guns increases the number of homicides, suicides, and accidental deaths is highly plausible. It is difficult to imagine that it is false.

2. Availability of guns prevents or stops crimes.—Gun advocates offer empirical evidence supporting the claim that guns prevent crime; their armchair argu- ments undergird and explain those studies. The moti- vating idea is simple: most criminals want to minimize their risks when committing a crime. If they know that someone in a house is armed, they will be less likely to enter that house, at least when the person is home and awake. Potential criminals are also less likely to assault or rob someone whom they believe is carrying a weapon. Finally, when criminals try to rob or assault an armed per- son, the person is more likely to foil the crime. This, too, is a plausible armchair prediction. Perhaps it is wrong. Maybe the claim is overinflated. Perhaps guns have these benefits, but there are other effects of owning guns—for example, those mentioned above—which outweigh them. What is apparent is that the claim that the wide- spread availability of guns would prevent or thwart some crimes is highly plausible. It is difficult to imagine that it is false. Of course we cannot stop with these armchair arguments. We must assess the empirical evidence.

the former sense. A decision to permit citizens to pri- vately own guns is—depending on the evidence—risky in the latter sense. If gun control advocates are right about the evidence, then we have good grounds to con- strain private gun use. The question is, are they right?

IV. ASSESSING THE EVIDENCE

A. Armchair Arguments

Debates over gun control typically begin, and some- times end, with armchair arguments. Both sides offer armchair explanations of why (and how) the presence (or absence) of guns will increase (or decrease) violent crime. It is tempting to categorically dismiss armchair arguments since they seem to be poor substitutes for empirical evidence. However, it would be a mistake to assume we could devise sound empirical studies or understand their results without armchair arguments. In a study to discover if widespread availability of guns increases the number of homicides or decreases crime, we need armchair arguments to tell us which vari- ables we should control.9 Without them we would not know that we should control for the extent of poverty, the incidence of drug use, increases in the number of police officers, or the introduction of tougher (or more lax) penalties. Without them we would not know that we do not need to control for the price of mayonnaise, the criminal’s eye color, or who won the World Series.

Armchair arguments also take center stage in eval- uating empirical studies, in criticizing experimental design, and in reinterpreting the reported findings.10 So before I discuss the empirical evidence, I summa- rize some significant armchair arguments employed by gun advocates and gun-control advocates.

1. More weapons, more violence.—Gun control sup- porters offer empirical evidence of a positive correlation between murder rates and the availability of guns (espe- cially handguns). Availability of guns is also positively correlated with suicide and accident rates. This empiri- cal evidence is best understood against the background of the following armchair arguments. (1) Guns (and especially handguns) are the easiest way to kill others or oneself. People can stand at a relatively safe distance and pull the trigger. (2) When people are angry, they can act in ways they would not act normally. They may strike out at others. If they had a gun close to hand, they

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regulate guns as tightly as most European countries, our murder rates arguably would fall, but they would not plummet immediately to European levels.

We might settle the issue if we could conduct controlled experiments, randomly dividing our popu- lation in half, giving half of them guns, removing all the guns from the other half, and then monitoring the murder rate. Of course, that would be morally unac- ceptable, politically unrealistic, and probably even sci- entifically unachievable. Before we had enough time to exclude all possible intervening causes, sufficient time might have elapsed so that new intervening causes could have emerged. But we are not left in the dark. We have empirical evidence that helps adjudicate between competing explanations of the correlation.

First, we have empirical evidence, bolstered by arm- chair arguments, that guns are more lethal than other weapons. Some claim the ratio is 5:1; no estimates are lower than 2:1.12 This partly explains the strong cor- relation between guns and homicides. If people get angry the same number of times, those using the most lethal weapons are more likely to kill their victims.

Second, the nature of secondary gun markets helps explain how the widespread availability of guns increases crime in general and homicides in particu- lar. Various opponents of gun control claim that “If we outlaw guns, only outlaws will have guns.” Armchair arguments suggest why this is a silly claim. Where, one might ask, do criminals get their guns? They often steal them or buy them from those who purchased them legally. Even guns obtained from other criminals are usually traceable to people who purchased them legally. Empirical evidence supports this armchair supposition. Most criminals report having stolen their guns, received them from a friend or family member, or purchased them from someone who had stolen it. At least half a million guns are stolen each year, and these swell the numbers of guns available illegally.13

Not only does the primary (legal) market affect the availability of guns on secondary markets, it also affects the price of guns on those markets, much “like the analogous markets for motor vehicles or prescription drugs.”14 As we restrict the availability of guns in the pri- mary market, the supply of guns in the secondary mar- kets decreases and their cost increases.15 This increase in cost will diminish teenagers’ ability to obtain guns since

B. The Data

The empirical evidence is difficult to assess, and, to the extent that we can, it does not univocally support either side. You might not know this from listening to the public policy debate. Some gun-control advo- cates imply that strict gun laws would all but eliminate murder, while some gun advocates imply that having a gun in every home would virtually end crime. Both claims are unfounded. Gun control will not virtually eliminate murder. Arming all citizens will not virtu- ally eliminate crime. About that we can be confident. The problem is determining the precise effects of per- mitting or restricting guns. The available evidence is less than compelling But we must make a judgment based on the best evidence we have.

1. The connection between availability of guns and murder.—Perhaps the most well-established statistic is this: the more widely available guns (especially hand- guns) are, the more people are murdered. The figures are duplicated time and again in country after coun- try. Here is the bottom line: “The correlation between any gun-prevalence and the overall murder rate is .67, while it is .84 between handgun prevalence and overall murder rate.”11 These figures are significant to the .01 level; that is, the chance that these correlations could occur merely by chance is less than one out of 100. This correlation meets the statisticians’ gold standard.

But this does not resolve the issue, for it does not establish what gun control advocates claim it shows, namely, that gun control is an effective way of sub- stantially lessening the murder rate. First, a statisti- cal correlation shows that two things are linked, but it does not tell us if the first caused the second, the second caused the first, or if there is some third factor which caused both. Second, even if the items are caus- ally related, we do not know that changing the cause will straightforwardly change the effect since another factor might intervene to sustain the effect.

Gun advocates proffer their own armchair explana- tion for the correlations: these correlations reflect the character of the respective social and political systems. The European countries where murder rates are lower have more social solidarity and are more heterogeneous than the United States. Whether these social factors explain all of the correlation is debatable, but I am con- fident they explain some of it. Were the United States to

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those who have saved their lives by having a gun, can- not be cavalierly dismissed by gun control advocates.

However, these figures are inflated, likely dramati- cally so. First, Kleck’s methodology is flawed. Surveys have an inherent tendency to overestimate rare events. Kleck made his estimates based on phone interviews with people in 5,000 dwelling units. One percent of those units claimed to have used a gun defensively in the past year. Kleck inferred from these responses that there are 2.5 million defensive handgun uses per year. However, since this inference is based on an affirmative answer by one person out of a hundred, that means that for every chance for a false negative (someone who falsely denies using a gun defensively) there are ninety-nine chances for a false positive (someone who falsely claims to have used a gun defensively).20 The probability that this or some other bias skews the findings is substantial.

Second, Kleck’s findings are inconsistent with find- ings by the National Crime Victimization Survey (NCVS), which interviewed far more people and interviewed them more regularly.21 Kleck’s estimates even clash with the findings of the NCVS on the incidence and circum- stances of robberies (which seems less subject to report- ing bias). If Kleck’s figures were correct, then “Kleck asks us to believe that burglary victims in gun owning house- holds use their guns in self-defense more than 100% of the time, even though most were initially asleep.”22

Finally, if there were 2.5 million defensive gun uses each year, how many of those were necessary? Given the negative results of private gun ownership, gun advocates should show not only that guns deter crime but that they are the best way of doing so. Some people plausibly claim that owning a dog is an effec- tive deterrent. If true, then a not insignificant percent- age of those who used a gun defensively could have achieved the same results without the accompanying danger. In summary, there is no doubt that guns deter some crime and stop the completion of other crimes, just not in the numbers that Kleck claims.

John Lott supplements Kleck’s argument by claim- ing that the widespread use of concealed weapons would decrease the annual number of homicides by 1,400; rapes by 4,200; aggravated assaults by 60,000; and robberies by 12,000.23 If true, and if there were no coun- tervailing costs, this would be a powerful reason not only to permit guns but to encourage people to have and

they are least able to afford hefty prices. Since teenagers commit most deadly crimes, decreasing the availability of legal guns will thereby decrease the number of homi- cides. The converse is true as well: having huge numbers of legally available guns increases the number of guns on secondary markets and typically lowers their price. This makes it easier for prospective criminals, including teenagers, to obtain guns.

Third, having a gun around the house (or on the person)—even for self-protection—apparently increases the chance that someone in the family will kill themselves with the gun or will be the vic- tim of a homicide or an accident. One study found that “for every time a gun in the home was involved in a self-protection homicide, they noted 1.3 unin- tentional deaths, 4.5 criminal homicides, and 37 firearm suicides.”16 This implies that for every case where someone in a gun-owning household uses a gun to successfully stop a life-threatening attack, nearly forty-three people in similar households will die from a gunshot. Taken together the evidence does not prove that widespread availability of guns increases the number of homicides. However, that empirical evidence, bolstered by earlier armchair arguments, makes the claim highly plausible.

2. The use of guns to prevent crime.—The biggest “gun” in the anti-gun-control lobby is the claim that having (and perhaps carrying) a gun prevents crime. As I noted earlier, this is a sensible armchair claim. Some- one contemplating a robbery is more likely to proceed if they think they can succeed with little risk to them- selves. So if a prospective robber believes the tenants are at home and have a gun they know how to use, then he likely will seek another target. Two surveys support this belief. According to one survey, 4 percent of all Ameri- cans have used a handgun in the past five years to avert a crime. Given those figures, researchers estimate that there are at least 600,000 defensive uses of guns per year. Kleck uses these results, in conjunction with another survey, to claim that the number might be as high as 2.5 million.17 Given the number of violent crimes using guns, “the best evidence indicates that guns are used about as often for defensive purposes as for criminal purposes.”18 If true, that is a powerful reason to resist attempts to limit availability of guns.19 Such statistics, particularly when bolstered by moving anecdotes of

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it is not only that fewer guns would directly cause some decline in violent crimes—which it should. It is also likely to reshape the cultural values which, along with the ready availability of deadly weapons, led to such an extraordinarily high murder rate in America.

However, the statistical evidence that guns prevent or thwart crimes is suggestive and cannot be ignored despite its identified weaknesses. In summary, the over- all statistical evidence tilts in favor of gun control advo- cates, although the evidence is disputable. But we should not expect nor do we need indisputable evidence. We can act on the best evidence we have while being open to new evidence. If widespread availability of guns were responsible for even one-fourth of the increase in the number of murders, that would be a significant harm that the state should prevent if it could do so in a relatively unintrusive and morally acceptable way.

There is little doubt that we could do that, at least to some degree. If nothing else, we could control some types of guns and ammunition. To take one obvious example, teflon-coated bullets are designed to pierce protective vests. People do not use these bullets to pierce the vests on a deer or a squirrel, on a target or a clay pigeon. They use them to pierce the vests on people, usually law-enforcement officers. This ammu- nition has no purpose except to cause harm. Hence, we are justified in abolishing teflon bullets and in estab- lishing severe criminal penalties for those possessing them. This would not save large numbers of lives. But, assuming the enforcement of this ban is not impracti- cal, then, if it saved even a few lives, that would be a compelling reason to outlaw such bullets.

Some guns, however, have a much wider use, even if they occasionally are used for ill. People have seem- ingly legitimate uses for shotguns and single-shot rifles. Consequently, barring strong evidence to the contrary, we should not abolish them. We should, however, study their contributory role in causing harm and explore ways we might reduce this harm in a relatively unintrusive way.

The central debate concerns handguns. The evidence we have shows that handguns are disproportionately used in homicides and in robberies. Although “there are approximately three times as many long guns as hand- guns in the US, more than 80 percent of gun homicides and 90 percent of gun robberies involve handguns.”26 The experience in Canada suggests that criminals will

carry them. However, Lott’s conclusions have also come under severe criticism: “The central problem is that crime moves in waves, yet Lott’s analysis does not include vari- ables that can explain these cycles. For example, he used no variables on gangs, on drug consumption, or commu- nity policing. As a result, many of Lott’s findings make no sense. He finds for instance, that both increasing the rate of unemployment and reducing income reduces the rate of violent crimes.”24 Perhaps the most compelling critique comes from Jens Ludwig, who compares the rate of violent crime toward youths and adults in states that passed shall-issue carrying permits. Most of these states issue gun permits only to people over twenty-one. Arm- chair considerations predict that younger people, who cannot legally carry, will not receive the full benefits from the purported deterrent effect of shall-issue laws. Thus, those under twenty-one years of age are a natural control group to track general swings in crime. Once we include this factor, we find that shall-issue laws lead to higher—not lower— homicide and robbery rates.25

I also have an overarching worry about Lott’s conclusions. The one correlation in the gun control debate that seemingly is beyond dispute is the high correlation between the presence of guns—especially handguns—and homicide rates. Gun advocates offer explanations for the correlation, but no one I have seen seriously challenges it. I find it difficult to square this correlation with Kleck’s and Lott’s claims that hav- ing more guns—and toting them—will lower crime.

C. An Overall Assessment of the Empirical Evidence

The strong correlation between the presence of guns and a higher murder rate is compelling. Since the cor- relation is statistically significant to a .01 level, it is dif- ficult to believe that limiting private gun ownership will not have a noticeable effect on the numbers of murders. Gun advocates disagree: they claim that cul- tural factors explain the correlation. Although I think they are partly correct, they draw the wrong inference. For one crucial difference between European and American cultures is the widespread presence of guns. Each culture is the way it is, at least in part, because of the role guns (or their absence) played in its creation and maintenance. Therefore, curtailing the private possession of guns might well change the American culture so that it would be less violent. Consequently,

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kills someone while robbing them, then Jones will owe the victim compensatory damages. And if Jones were negligent in the storing of the gun, he could be subject to punitive damages as well. Perhaps if he were grossly negligent in storing the gun (he left it lying in his front yard, next to a school playground), we might even bring criminal charges against him.

This procedure is justified since guns are inher- ently dangerous, and it is only reasonable to expect people to take responsibility for their risky actions. The benefits are notable: many people would be disin- clined to own guns, while those owning guns would likely take greater care in storing, handling, and using them. This arguably could achieve the central aims of gun control without direct government intervention. Doubtless that means that some people will be forced to pay for the misdeeds or mistakes of others in ways we might dislike. However, that is a more attractive policy than continuing the current scheme in which guns are easily obtained in the United States or com- pletely denying individuals’ interest in owning guns.

To make this option more palatable, we could let gun owners purchase liability insurance to cover poten- tial losses. We might even require them to purchase insurance. After all, most states require drivers to have automobile insurance. This insurance-based system of strict liability would make people take more care with any guns they own while providing financial remuner- ation to those harmed by the use of those guns.

Perhaps this will not work. Other proposals might work better. What seems clear to me is that we need to do something: we cannot continue with the status quo.

NOTES

1. Todd C. Hughes and Lester H. Hunt, “The Liberal Basis of the Right to Bear Arms,” Public Affairs Quarterly (in press).

2. R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).

3. John Stuart Mill, On Liberty (Indianapolis: Hackett, 1978).

4. Samual C. Wheeler, Jr., “Self-Defense: Rights and Coerced Risk Acceptance,” Public Affairs Quarterly 11 (1997): 431–43.

5. Ibid., pp. 433–38.

6. Charles Singer, E. J. Holmyard, A. R. Hall, and Treavor Wil- liams, A History of Technology, 7 vols. (Oxford: Oxford University Press, 1956), vol. 2, p. 367.

not switch to long guns if handguns are unavailable. Given the special role handguns play in causing harm, we have compelling reasons to extensively control, or perhaps even abolish, handguns. But policy consider- ations, mentioned earlier, should give us pause.

V. A THIRD WAY

In the past we not only assumed that we must either support or oppose gun control, we assumed that the only way to control guns is to legally proscribe access to them. We should consider other options. Although I find the idea of a world without handguns immensely appealing, there are reasons to seek alternatives, espe- cially in countries like the United States with a deeply entrenched gun culture. In the present political cli- mate, the abolition or serious control of guns in the United States is unlikely to work and unlikely to hap- pen. There are far too many people who desperately want guns. There are far too many people who own guns. Any attempt to disarm the society would be beset with problems like those that plagued Prohibition. We have other possibilities.

We could employ elements of a policy that we use to control another inherently dangerous object: dyna- mite. Dynamite has many beneficial uses. That is why we permit people to own it under specifiable condi- tions, for example, to build a road. But it is also inher- ently dangerous. That is why we heavily restrict its purchase, storage, and use. I cannot own dynamite for recreation (I like the flash), for hunting (I am a lousy shot), or for protection (I would not hear an intruder). Owning dynamite is rarely a significant interest and never a fundamental one. More important to the pres- ent point, even when we do permit people to own dynamite, we subject them to strict legal liability. The owner is financially liable for any harm caused by his dynamite, even if he was not negligent.

I propose we make handgun owners (and perhaps ultimately all gun owners) strictly liable for harm caused by the use of their guns. If Jones’s child takes his gun and kills someone while committing a crime, then Jones will be financially responsible to those harmed. If Jones’s child accidentally kills a neigh- bor’s child, Jones will be financially responsible to the child’s family. If someone steals Jones’s gun and

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13. Cook, Mollinoni, and Cole, p. 81.

14. Ibid., p. 71.

15. Ibid., p. 73.

16. Reiss and Roth, eds., p. 267.

17. Gary Kleck, Point Blank: Guns and Violence in America (New York: Aldine De Gruyter, 1991), pp. 105–6.

18. Ibid., p. 107.

19. Gary Kleck, Targeting Guns: Firearms and Their Control (New York: Aldine de Gruyter, 1997).

20. David Hemenway, “Survey Research and Self-Defense Gun Use: An Explanation of Extreme Overestimates,” Journal of Criminal Law and Criminology 87 (1997): 1430–45.

21. U.S. Department of Justice, Criminal Victimization in the United States, 1993: A National Crime Victimization Survey (Washington, D.C.: Government Printing Office, 1996).

22. Hemenway, “Survey Research and Self-Defense Gun Use: An Explanation of Extreme Overestimates,” p. 1442.

23. Lott, p. 54.

24. Hemenway, “Review of More Guns, Less Crime,” p. 2029.

25. Jens Ludwig, “Concealed Gun-Carrying Laws and Violent Crime: Evidence from State Panel Data,” International Review of Law and Economics 18 (1998): 239–54.

26. Hemenway, “Guns, Public Health, and Public Safety,” p. 60.

7. David Hemenway, “Guns, Public Health, and Public Safety,” in Guns and the Constitution, ed. Dennis A. Henigan, E. Bruce Nicholson, and David Hemenway (Northampton, Mass.: Ale- theia Press, 1995), pp. 49–82, p. 52.

8. Hughes and Hunt.

9. John R. Lott, More Guns, Less Crime: Understanding Crime and Gun-Control Laws (Chicago: University of Chicago Press, 1998), pp. 21–24.

10. Dan Black and Daniel Nagin, “Do Right-to-Carry Laws Deter Violent Crime?” Journal of Legal Studies 27 (1998): 209–20; Philip J. Cook, Stephanie Mollinoni, and Thomas B. Cole, “Regulating Gun Markets,” Journal of Criminal Law and Criminology 86 (1995): 59–92; Phillip J. Cook, Jens Ludwig, and David Hemenway, “The Gun Debate’s New Mythical Number: How Many Defensive Uses Per Year?” Journal of Policy Analysis and Management 16 (1997): 463–69; David Hemenway, “The Myth of Millions of Annual Self-Defense Gun Uses: A Case Study of Survey Overestimates of Rare Events,” Chance 10 (1997): 6–10, “Review of More Guns, Less Crime,” New England Journal of Medicine 339 (1998): 2029–30; Lott; Wheeler.

11. Gregg Lee Carter, The Gun Control Movement (New York: Twayne Publishers, 1997), p. 3.

12. Albert J. Reiss, Jr., and Jeffrey A. Roth, eds., Understanding and Preventing Violence (Washington, D.C.: National Academy Press, 1993), p. 260.

Political Philosophy and the Gun Control Debate: What Would Bentham, Mills, and Nozick Have to Say?

Stacey Nguyen

checks and keeping dangerous firearms out of the wrong hands.” After this press release, several parties proceeded to criticize Pelosi’s comments.

For example, CNS News pointed out that Pelosi’s oath does not include the phrase “to protect and defend the Constitution,” which is found in the President’s oath. Part of her oath reads: “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic.”

Moreover, Erich Pratt, director of communica- tions for Gun Owners of America, claimed that the American constitution makes no allowances for gun

Last Monday, in a press release that marked the one- year anniversary of the shooting at Aurora, House Minority Leader Nancy Pelosi (D) said: “We must uphold our oath to ‘protect and defend’ the Consti- tution and all Americans by expanding background

Stacey Nguyen, “Political Philosophy and the Gun Con- trol Debate: What Would Bentham, Mills, and Nozick Have to Say?” Berkeley Political Review, August 5, 2013, https://bpr .berkeley.edu/2013/08/05/political-philosophy-and-the-gun -control-debatewhat-would-bentham-mills-and-nozick-have -to-say/. Reprinted with permission.

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control. “If Pelosi really wants to apply the lessons from Aurora, Colorado in order to save lives,” Pratt said, “she will work to repeal gun laws that discourage good people from carrying firearms.”

These trivial arguments lead one to wonder how use- ful rhetorical and philosophical approaches are for public policy—or in this case, toothless nitpicking. While gun rights advocates claim that we just need to better enforce current laws, it is the loopholes and weak policies, cou- pled with gun lobbying, that make it more difficult to do so and much easier to illegally acquire guns. In April, new gun measures considered by the Senate failed miserably, with only two out of nine amendments passing. Some of the measures that failed included comprehensive back- ground checks, bans and limits on assault weapons, and crackdown strategies on gun trafficking. With recent mass shootings and the tens of thousands of gun-related deaths that occur each year in the United States, the lack of gun regulation is absolutely unacceptable.

But while I can’t argue against policy being more tangible than philosophizing, I believe that there is value in understanding the micro-foundations of legal policies. Through understanding and applying differ- ent philosophical approaches to justice, we can expand our appreciation for the significance and complexity of political issues. And more importantly, we can learn to rigorously question our fundamental beliefs and stray a bit further from the traditional left-right dichotomy.

First, let’s talk about the contentious document itself—the one and only, Second Amendment. Many politicians and scholars have argued over the philoso- phy of the Second Amendment, imposing a historical analysis of the Constitution and regarding it as either an original, inviolable piece or a living document. In 2008, the Supreme Court decided in District of Columbia vs. Heller that the Second Amendment provides an indi- vidual right to bear arms independent of any collective right. So while people cannot have tanks or missiles, they have an individual right to handguns, because as Justice Scalia puts it, “handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

The originalist argument is self-explanatory—the Constitution was set in stone when it was ratified in 1787 and it is not an evolving document. On the other hand,

the “living document” approach finds that the Second Amendment was written in a different context. Firstly, people still used guns to hunt for food and ward off fre- quent foreign invasions two hundred years ago. Back then, guns were also used to suppress slave rebellions and fight Native Americans. This is not to say that gun rights advocates are racists, but rather that the Founders’ intents were geared towards state protection, not indi- vidual rights. Moreover, major advances in gun technol- ogy mean that semi-automatic weapons with enhanced magazine capacities are more lethal. Today’ semi-auto- matic weapons, like the Colt AR-15, resemble military- style firearms and are a far cry from colonial-era muskets and rifles. Advanced technology calls for advanced safety precautions. In short, gun policies should not reflect a blind adherence to the Constitution, but instead grow with human and technological advancements.

Now, I would like to argue for the necessity for gun legislation on the grounds of social welfare and individ- ual liberty, using the two political philosophies of utili- tarianism and possessive libertarianism. Ultimately, there’s no correct way to approach this complex and contentious issue, but exploring different philosophi- cal approaches invites greater insight. I don’t claim to have a complete analysis or even the solutions to the problem—at most, just some food for thought.

BENTHAMITE AND MILLIAN UTILITARIANISM

Many arguments for gun control are grounded in utilitarian thought. Jeremy Bentham, the founder of modern utilitarian thought, held that the moral- ity of an action was determined by its contribution to overall happiness—an act should be done if it pro- duces the greatest amount of happiness over unhap- piness. Articulated by J. S. Mill, the Harm Principle, one of the tenets of modern utilitarianism, states that individuals are free to do as they please unless their actions harm other individuals. Applying the Harm Principle, the general stance is that guns produce more harm than happiness or social utility. First, and foremost, guns cost lives. Two out of three homi- cides, half of all suicides, and a third of all robberies are committed with guns. In the United States, the total number of handgun deaths from 1980 to 2006

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But for the same reasons, libertarian philoso- phy can be used to support the necessity for gun control. Firstly, the idea that individuals should be held accountable for their actions complements libertarian philosophy. As Dr. Jack Russell, profes- sor of philosophy at the University of North Dakota School of Law, puts it: “Nothing is more consistent with the libertarian point of view than registering guns and including serial numbers on every bullet. It is only when a person’s property is traceable, when we can figure out who shot whom, that we can live in a libertarian world.” Members of the NRA them- selves care about the responsibility that comes with gun ownership—roughly 75% of the NRA believes in background checks, that concealed carry permits shouldn’t be granted to individuals with violent misdemeanors or assaults under their belts, that per- mits should only be granted to those who have gone through gun safety training, and that being arrested for domestic violence disqualifies individuals from gun ownership. Moreover, government interference with gun acquisition reflects not a hoarding of power, but rather a responsibility for protecting its citizens’ negative rights. All in all, it appears that stronger gun regulation is consistent with libertarian philosophy.

Utilitarianism and possessive libertarianism are two fundamental philosophies of justice, but neither is right nor wrong. This particular interpretation of both theo- ries reflects a strong need for more rigorous gun policies and constructive conversations on the basis of individ- ual responsibility and greater social concerns. Undoubt- edly, there remain many more philosophical questions to ponder. Should there be borders for gun control? Is bearing arms even a fundamental human right like the freedom of speech or the right to assembly?

Ultimately, the problem is not whether the individ- ual is an end or a means to an end; the problem is simply gun violence, which hurts both society and the individ- ual. The solution is not simple, and will also have to take into consideration structural issues of poverty, educa- tion, and health care. But the solution, in any case, will have to start with stronger federal gun policies and more effective leadership from our elected representatives.

exceeds 32,000 per year, according to UPenn’s Health System. Additionally, the fiscal costs of gun inju- ries are disadvantageous in the utilitarian calculus. According to the CDC, firearm related deaths cost the United States health care system $37 billion, and nonfatal gunshot wounds cost another $3.7 billion in 2005 alone. This means that the taxpayer money that has gone toward healthcare for firearm injuries could have been invested in more socially beneficial causes, such as education and mental health care.

One might say that having less gun regulation is more utilitarian, because having access to guns may save lives. The research reflects otherwise. Firstly, the Harvard Injury Control Research Center (HICRC) showed that across states and high-income nations, more guns mean more homicides. Secondly, research shows that guns are used more often for intimida- tion than as weapons of self-defense. For example, a survey found that nearly 1% of Americans reported using guns to defend themselves or their property while 50% used guns in an aggressive manner, such as in escalating an argument. Additionally, another survey found that if an assault victim is carrying a gun, they are 4.5 times more likely to be shot and 4.2 times more likely to be killed. The self-defense argument may ostensibly appear utilitarian, but it is not backed up by the evidence at hand.

POSSESSIVE LIBERTARIANISM

In contrast to utilitarianism, possessive libertarian- ism is the main philosophical approach for reducing gun regulation. In Anarchy, State, and Utopia, politi- cal philosopher Robert Nozick fleshed out the base- line for modern American libertarian thought. A proponent of the inviolability of individuals, Nozick supported a minimal state that would only protect negative rights like individuals’ right to privacy and right to not be killed, but not promote positive rights such as social welfare programs or education. A Nozickian thinker would supposedly be opposed to gun control because of choice-based liberty and indi- vidual autonomy.