OMG! I Get To Catch Eugene Volokh Out On A Citation!!

Law Prof. Eugene Volokh engages a friend:

I was corresponding with a friend of mine — a very smart fellow, and a lawyer and a journalist — about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I’ve heard it in gun control debates before:

Forgive me, but I’m old-fashioned. I like the idea of the state having a monopoly on the use of force.

I want to claim that this echo of Weber (who said “Today … we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”) is utterly inapt in gun control debates, at least such debates in a Western country.

Volokh proceeds to make a strong set of arguments as to why individuals should be allowed to use force even in light of the Weberian claim, and you ought to go read them.

But all he needed to do was to quote Weber accurately.

Here’s the part everyone cites, from ‘Politics As A Vocation‘:

‘Every state is founded on force,’ said Trotsky at Brest-Litovsk. That is indeed right. If no social institutions existed which knew the use of violence, then the concept of ‘state’ would be eliminated, and a condition would emerge that could be designated as ‘anarchy,’ in the specific sense of this word. Of course, force is certainly not the normal or the only means of the state–nobody says that–but force is a means specific to the state. Today the relation between the state and violence is an especially intimate one. In the past, the most varied institutions–beginning with the sib–have known the use of physical force as quite normal. Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.

Here’s the part everyone leaves off:

Note that ‘territory’ is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the “right” to use violence. Hence, “politics” for us means striving to share power, either among states or among groups within a state.

There’s no need to explain the freedom of an individual to use force appropriately (i.e. in a state-sanctioned way), as opposed to the ability of an agent of the state to use force in a state-sanctioned way. We’re all agents of the state, in a sense.

…and that undergraduate Political Theory education is worth something!

9 thoughts on “OMG! I Get To Catch Eugene Volokh Out On A Citation!!”

  1. It doesnt even stand up to first blush- why then do mall security guards carry mace and handcuffs (if not firearms)?

    The state has a monopoly on _coercive force_ as one of the commenters at VC correctly identified.

  2. _We’re all agents of the state, in a sense._

    Indeed, that’s the right answer. All citizens have a duty to the common peace and lawful order which can include the use of force.

    This duty is a principle of civilization separate from the right to self defense, which is simply an inalienable right not surrendered in the formation of the social contract.

  3. If the people are all agents of the state, does that not open a different can of worms when it comes to self-defense?

    Under the Fifth Amendment, “No person shall be […] deprived of life, liberty, or property, without due process of law”. It is exceedingly obvious that killing someone in any context other than capital punishment, in self-defense or otherwise, does just that.

    Now, this is not a Constitutional problem if the people are entities separate and distinct from the state, because the Fifth Amendment, like the rest of the Bill of Rights, is meant to be binding only on the state. But if the people and the state (and by extension the government, which is comprised of the people and is an arm of the state) are one and the same, would that not mean that the people are, in fact, bound by the Fifth Amendment? Or to be more precise, that the state (and by extension, the people who make up that state) is responsible for the deprivation of an assailant’s Fifth Amendment rights when one of its citizens kills that assailant in self-defense?

  4. BTW, I should clarify that I don’t expect lethal self-defense to ever become illegal on the constitutional grounds I mentioned above. If there’s a conflict with the Fifth Amendment, it may be remedied merely by compensating the dead man’s next of kin (similar to the way the survivors of wrongfully executed people are compensated).

    On the other hand, such a conflict would complicate matters greatly when the issue of self-defense as a U.S. constitutional right eventually comes before SCOTUS (as it undoubtedly will, sooner or later).

  5. At least in Georgia, the laws governing the use of lethal force are exactly the same for the police as for everyone else. One can also make citizens’ arrests. In other words, there is no conflict.

    Self-defense isn’t an action as an agent of the state, but rather your exercise of a reserved, inalienable right. No problem there.

    If you are acting to stop a crime, rather than to defend yourself, you are also subject to “false arrest” charges and whatever. You can’t shoot someone the police can’t shoot, for example.

    The law notes that the purpose of such shooting is not to kill the criminal, but to stop the crime. Thus, you aren’t acting (from the law’s particular perspective) to deprive them of life, etc., without due process; you’re just doing your duty to halt a serious breach of the peace. If they happen to die, it’s their fault for attempting murder or rape or whatever else they’re doing that is covered by the lethal force law.

  6. Keeping on my devil’s advocate hat for a few more minutes:

    The law notes that the purpose of such shooting is not to kill the criminal, but to stop the crime. Thus, you aren’t acting (from the law’s particular perspective) to deprive them of life, etc., without due process; you’re just doing your duty to halt a serious breach of the peace.

    From the dead man’s perspective, that’s a distinction without a difference.

    If they happen to die, it’s their fault for attempting murder or rape or whatever else they’re doing that is covered by the lethal force law.

    Even when, as in this case, it turns out later that they were doing no such thing? Exoneration after the fact won’t make a dead man any less dead.

  7. Re: distinctions w/out differences:

    The law is full of distinctions that seem unbearably fine to a practical eye, but on which the cases turn. If you’ve ever filed a Schedule C with your income tax form, for example, you’ve learned painfully the difference between “income” and “revenue.” It’s precisely the same money from your point of view; nothing more or less than what you’ve earned at your business, after your costs.

    From the IRS’ point of view, however, you have to pay 15% of your “revenue” to them off the top, before it becomes “income” from which you can take any deductions or exemptions. Why can’t you take the deductions and exemptions before they take off the Social Security taxes? Well, because those taxes are calculated on “revenue,” not “income.” And it can’t become “income” until you’ve paid FICA taxes. QED.

    Essentially the same deal is at work here. The law says that the shooting is lawful if it is necessary to stop a crime; and that the purpose of the shooting is to stop the crime, not to kill. The question of whether the man survives the shooting or not is really of limited interest to the court; if the shooting was lawful, it is not a crime regardless of whether he does or not.

    Re: but what if no crime was actually happening?

    That Texas case is one we talked about at Grim’s Hall a bit when it happened. The man came upon a situation which, at the moment his wife yelled “Rape!” and the man drove off, was one in which a serious crime actually had to be happening. There was no circumstance in which a serious crime wasn’t occurring.

    It turns out that the serious crime happening was his wife’s lying about the event, making it appear to be a rape and kidnapping instead of a (harmless?) affair. She’ll be going on trial for that as a felony offense, so it’s not as if we can say that there was no serious crime happening here. The guy’s only mistake, it appears, was trusting his wife.

  8. Your elaboration of Weber is quite helpful in putting Weber’s thoughts in context, AL. It seems to me, though, that Weber is not very consistent in the meanings he intends with the words recurring in that excerpted, as I feel he encourages me to concur with one fact, if you will, vis-a-vis a state based on one meaning of state, then using my grant to encourage me to acquiesce to a different fact of a state under a different meaning of the word.

    I grant that states are founded on force, in the sense that they are created by such and done so by people making up that state (USA) or as arbitraily drawn on a map by a small group outside that group in the territory. (Syria, Iraq, Jordan, Israel). I’ll even grant that it is maintained by force. That’s pretty general, so I won’t quibble about that.

    Volokh’s point in quoting Weber, and yours in suggesting Weber, when quoted further also made the point, is that his friend is wrong in suggesting the state (again in the sense of it’s defined sovereign boundaries), via it’s institutions — military, police, and courts, etc. — is the sole legitimate entity which is allowed to apply it within a given territory. It seems to me clear that Weber was asserting that the state, say the US government, is the sole definer of the use of force “within a given territory” in the sense that it is, to the exclusion of other states, e.g., Mexico, Canada or, for that matter, the EU or the ICC.

    That is altogether a different understanding of meaning of a “state” from the idea of “state” in the construct of what is the form of governance and the state’s relationship to the people comprising that state. Force, and violence, if you will, are terms used in both concepts, and so are similar in character, but the bases for them not the same thing and to equate them is misleading, at best.

    As such, discussion of force within a state begins an entirely different conversation and where I disagree with Weber, or more accurately, I disagree with how Weber, as excerpted, describes it, and I do so, because, it seems to me, he writing to a general audience and that last portion with the USA in mind — his use of ‘”politics” for us’.

    In the USA, the state is not considered the ‘sole source of the “right” to use violence’ if he uses “violence” as one aspect of force and wanted to focus of that aspect in the state use thereof to, for lack of a better phrases at hand, insure domestic tranquility and promote the general welfare. If, in fact, Weber uses “state” to mean the federal government, the source is not the government but the people and the right of the government to use it is very limited and, though extensive in coverage, it is not all encompassing. The second amendment is in the Constitution not as a “right granted” by the Constitution, as I heard one Queen’s country BBC teleprompter reader say. It’s an amendment describing the limit to the scope of the federal government’s authority and responsibility and is clearly there, as are, at least, the ten, to acknowledge to all who commit to the “human community” defined by the USA that they are not ceding those inalienable rights, in-toto, to the government’s whim and fancy.

    And therein lies the basis for the one quibble I have at the end of the your post. We are individuals committed to a compact which recognizes some specifically stated (and many unenumerated) fundamental individual rights (and as Grim noted, duties), not agents of the state as though the state has primacy (not that you mean it that way, of course.) And I think it should be clear that the state is the agent of the people, vested with the responsibility of taking such action, on behalf of individuals and as prescribed, to deter and prevent violence by the use of coercion, or, if necessary, force, particularly when it can but not obviating individual action when it isn’t in a position to do so.

    It’s not a big quibble per se, but it seems to me this distinction tends to be obscured when discussion continues over the period of time as long as our Republic’s existence and when folks discuss details from the position of state as opposed to the position of citizen.

  9. Dusty, I think Weber’s point actually goes more to what separates states from non-state populations or territories. In a state, politics controls violence. In a non-state, it’s the other way around.

    Does that help?

    A.L.

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