damnum absque injuria

March 27, 2013

When Roofies Are Outlawed, Only Outlaws Will Have Roofies

Filed under:   by Xrlq @ 8:30 am

The renewed debate on gun debate has sparked a meta-debate over whether one particular argument – that criminals don’t obey gun laws – is a valid one. On one side, a recent article by James Schlarmann of the aptly-named “Political Garbage Chute” has been making the rounds lately, suggesting that the argument can never be valid for gun control or anything else. On the other, Jennifer Townsend and others maintain that a law followed only by the law-abiding is a waste of everyone’s time, or worse. Elliot Fladen splits the baby, arguing that “criminals don’t follow the law” works for malum prohibitum (bad because prohibited) crimes but not for malum in se (inherently bad) crimes. In my view, “criminals don’t obey laws” is a valid argument, but one whose value is often overstated. Further, as I will explain below, it is more useful for the gun debate than it is for most other issues of contention.

First, let’s dispose of the living, breathing strawman that is Schlarmann. While concerns about compliance (or lack thereof) may not be dispositive, this doesn’t mean lawmakers should dismiss them entirely. Of course not everyone will comply with any new law, and of course that doesn’t mean all new (or old) laws are bad. But it’s one thing to have a law some people won’t comply with, and quite another the pass one that no one will. And by “no one” I don’t mean literally no one, but none of the target population we ought to care about. National Prohibition had a 100% compliance rate among teetotalers, and everyone who didn’t drive in the 1970s and early 1980s was in full compliance with the national 55 mph speed limit, but both laws became national jokes, and were rightly repealed as a result. If a tree falls in the forest and no one hears it, did it really make a sound? If Congress or the Legislature passes a new law and no one complies with it, is it really a law?

On the flip side, while concerns about compliance (or lack thereof) may not be something legislators should dismiss entirely, this doesn’t mean they are dispositive. Take, for example, the death penalty debate. Liberals frequently claim the death penalty is not a deterrent. If they are correct, surely no lesser penalty can deter, either. Yet I have never heard even the most ardent liberal argue that laws against murder should be repealed, if for no other reason, then because locking up a person who has committed a murder in the past may prevent him from committing more murders in the future. So there can be a value to having a criminal law on the books, even if no one is deterred.

At first blush, this would seem to support Elliot’s malum prohibitum / malum in se distinction, as murder is an inherently bad act, while merely owning the instrument in question is not. Locking up or executing pepple predisposed to commit murder will surely result in fewer murders, which is unambiguously a good thing. Locking up or executing people for possessing Tiddlywinks will surely result in fewer people owning Tiddlywinks, but what’s the point? Similarly, locking up people for possessing firearms will result in fewer people owning firearms, but if that effect is only seen among those least likely to misuse them, it again seems to be a useless exercise.

That said, not all malum prohibitum laws are as silly as bans on Tiddlywinks, let alone as silly as gun control. While some “date rape” drugs may be prescribed to certain individuals for other, legitimate purposes (Rohypnol, a.k.a. “roofies,” have been prescribed for insomnia), there is no legitimate reason for the rest of us to have easy access to them. As surely as a person not deterred by the stiff penalties for murder won’t be deterred by the relatively lax penalties for merely possesing the gun, surely no potential rapist would be deterred by the relativity lax penalty for merely possessing the drug. Still, if a violent felon on parole is found in possession of a firearm, or if anyone is found in possession of date rape drugs at a bar, with no medical justification, would it not make more sense to lock them up now rather than waiting around until someone actually gets hurt?

Constitutionally, we have a right to bear arms but not roofies. Ignore that for now. The policy reason for banning roofies but not guns is because guns are useful tools for good and evil, while unprescribed roofies are useful tools for evil alone. Gun control creates a balance of power problem that is essentially nonexistent in most other debates. For any topic, the “criminals won’t obey this new law” is as good as the NRA slogan, “when guns are outlawed, only outlaws will have guns.” Try it on for size:

  1. When murder is outlawed, only outlaws will commit murder. Good, we need as few murders as possible.
  2. When date rape is outlawed, only outlaws will rape their dates. Good, we need as few rapes as possible.
  3. When date rape drugs are outlawed, only outlaws will have date rape drugs. Good, unprescribed date rape drugs are useless to the rest of us, anyway. Try fending off a rapist with a roofie.
  4. When bananas are outlawed, only outlaws will get enough potassium.
  5. When large sodas are outlawed, only outlaws will piss off Michael Bloomberg.

Note that there are some aspects of the gun debate where “only criminals will comply” becomes as silly for guns as it is for roofies. Take, for example, the ban on undetectable “plastic” guns. Unless you are planning on breaching security of some courthouse or airport, what use is a “plastic” gun to you? Similarly, the ban on certain individuals from owning firearms is a reasonable concept, even if the criteria themselves could use some work (lifetime for nonviolent felons seems over the top). So generally, the “criminals won’t obey X” argument is only a strong argument against X if it’s also a problem that non-criminals will.

3 Responses to “When Roofies Are Outlawed, Only Outlaws Will Have Roofies”

  1. tgirsch Says:

    I have a few (mostly minor) quibbles with this. First, let’s not conflate enhanced gun control with gun prohibition. While there are certainly plenty of people who would like to get rid of guns altogether, that crowd doesn’t enjoy anything like majority support, or anywhere close to it.

    So that leaves us with gun control changes, rather than prohibition. Your example of plastic guns shows that you recognize that certain types of gun control (up to and including bans on certain TYPES of weapons) can make sense and be good policy. At that point, it becomes a question of where one draws the line. The likelihood that you need (or even have legitimate use for) a 20-round magazine is very close to as small as the likelihood that you need a plastic gun, for example. Now, I should note here that I don’t really support a magazine capacity limit, simply because crimes involving such tools are uncommon enough that banning them wouldn’t make much difference, even if everyone DID comply. I’m merely pointing out that it’s the sort of thing that people can argue about in good faith without being “gun grabbers” or prohibitionists or whatever.

    From the “quibble” file, your argument against the national 55 MPH speed limit could just as easily be an argument against speed limits of any kind. I doubt that was really your intended point, but really, what’s the difference?

    Another quibble: You write that, “Locking up or executing pepple predisposed to commit murder will surely result in fewer murders,” but I don’t think there’s evidence to support that this is “surely” the case. It will surely result in fewer (future) murders committed by those specific people, but across society as a whole? The evidence is far from clear. There’s even evidence that suggests that more executions and more imprisonments result in MORE violent crime, not less; that evidence is not conclusive, of course, but neither is the evidence for the converse. My point being that while what you say seems to make sense, we cannot say that it’s “surely” the case.

    But the main thing I see here is that the roofie angle undermines your point, because the same arguments can easily be made for guns: yes, they have legitimate uses, but they also can easily be used for evil (and, indeed, are very frequently used for evil purposes), so we ought to have strict control of who can and can’t have them, coupled with punishments when we find the “wrong” people with them. Now you can argue about the frequency of good uses vs. evil uses, but nobody can dispute that evil uses are remarkably common; and you also can argue about who should and shouldn’t have them, but again, it’s a matter of line-drawing.

    Finally, it makes sense to take a step back and ask what the purpose of gun control ultimately is. The whole point is (or ought to be) to reduce gun crime and gun violence. The means to that end is making it harder for the “wrong” people to get their hands on guns. Now we can argue about what constitutes “the wrong people” — you’d likely say criminals and the mentally ill, while I’d go with a broader definition — but I think you’ll agree that any attempt to do that is necessarily also going to make it somewhat harder for the “right” people to get them. So again, it’s a debate about where one draws the line.

  2. tgirsch Says:

    Also, apropos of nothing in particular, posting here has reminded me of two things:

    1) I miss being able to use HTML tags in my comments, and
    2) You have the slowest blog in the history of blogs.

  3. Sigivald Says:

    Take, for example, the ban on undetectable “plastic” guns. Unless you are planning on breaching security of some courthouse or airport, what use is a “plastic” gun to you?

    Well, if they actually existed (they don’t), the utility would be significantly lighter weight, which is exactly why plastic framed guns with a bunch of metal in them (for purely practical “we can’t make the whole thing out of plastic yet using today’s materials science” reasons) are so damned popular.

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