Is the State Discriminatory by Definition?
It is barely an exaggeration to say that governments as we know them are discriminatory by definition. A current government crusade confirms that. The claim by the federal government and some state governments is that the Second Amendment can be legally discriminatory because it was so historically. A Wall Street Journal story summarizes the issue, which might look surreal to our contemporaries who haven’t reflected on it (“Old Racist Gun Laws Enter Modern-Day Legal Battles,” February 27, 2023):
Historical, racist gun laws are taking on new relevance in legal battles over modern-day gun regulations. …
In the 1700s and 1800s, states across the country passed laws to keep guns out of the hands of slaves, free Black people, Native Americans and Catholics. Such discriminatory gun restrictions would be unconstitutional today, but they have entered the gun-rights debate as judges look to apply the Supreme Court’s decision last June that said gun restrictions must be anchored in historical traditions. …
“[S]ome of these classifications—such as those based on race or religion—are abhorrent,” U.S. prosecutors told a federal appeals court last fall in a brief defending the disarmament of convicted domestic abusers. “They nevertheless show that the Framers understood that legislatures could make such judgments to categorically disarm groups of people deemed to be dangerous.”
Lawyers representing the State of California added virtue—their conception of virtue—to the conditions for Second Amendment protection by claiming that their survey of historical statutes
buttresses their assertion that the state’s background-check law is “rooted in the historical tradition—dating back to the founding—of disarming groups of people perceived to be dangerous or unvirtuous.”
The supporters of the new discrimination crusade effectively argue that there is good and bad discrimination: racial discrimination is bad, but many other forms of government discrimination are good, depending probably on what is wanted by “society,” that is, the majority of society, or the majority of those who votes or shout the loudest, or in reality the temporary majority or horse-trading minorities of elected representatives, or the bureaucrats.
The racist or otherwise discriminatory character of gun regulation has been known to American legal scholars for half a century (see, for example, Don B. Kates, Jr., editor, Firearms and Violence: Issues of Public Policy, 1984). In England, by the 19th century if not before, all discrimination had disappeared from “the right of the Englishman to keep arms for his own defence” (see notably the book of Colin Greenwood, Firearms Control: A Study of Armed Crime and Firearms Control in England and Wales [Routledge & Kegan Paul, 1972]; and Joyce Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right [Harvard University Press, 1994]).
When I said that the essentially discriminatory state is “barely an exaggeration,” I wanted to acknowledge one theory of government that does not depend on the desirability of discrimination. (Otherwise, it is not an exaggeration at all.) A central part of the classical-liberal ideal forbids discrimination by political authority through a strict conception of the rule of law. In a 1932 article, “The Pursuit of Economic Freedom,” John Hicks, the economic theorist and Nobel laureate, expressed this idea in a moderate way that must be difficult to understand today:
The Manchester Liberals believed in Free Trade not only on the ground of Fairness among Englishmen, but also on the ground of Fairness between Englishmen and foreigners. The State, so they held, ought not to discriminate among its own citizens; also it ought not to discriminate between its own citizens and others.
It is true that most classical-liberal theorists believed that the principle of non-discrimination had limits. The general theme is that non-discrimination is exceptionally allowed toward individuals who don’t share or have violated the liberal ethics of social relations. Such limits obviously apply to imprisoned criminals, but they are also invoked against potential immigrants who are likely to throw off balance the equilibrium of a free society. In this perspective James Buchanan, laureate of the 1986 Nobel Prize in economics, argued that a “nondiscriminatory immigration policy” is misguided although, of course, free trade in goods and services should remain free. Friedrich Hayek, a 1974 Nobel economics laureate, supports this kind of limit; in the third volume of his Law, Legislation, and Liberty, he writes, in a related context:
We must face the fact that we here encounter a limit to the universal application of those liberal principles of policy which the existing facts of the present world make unavoidable. These limits do not constitute fatal flaws in the argument since they imply merely that, like tolerance in particular, liberal principles can be consistently applied only to those who themselves obey liberal principles, and cannot always be extended to those who do not.
Of course, such exceptional limitations must be motivated and consistent with one’s general theory of the social world. I don’t think the opponents to the Second Amendment, who are mainly so-called progressives, have a theory to reconcile their anti-racism with their otherwise wall-to-wall love for government discrimination. Hayek’s own approval of “restrictions on the sale of dangerous goods (such as arms, explosives, poisons and drugs)” was not, in my opinion, seriously justified and, as far as I know, he only once mentioned any issue with the Second Amendment.
At any rate, potentially justifiable limits to the exercise of Second Amendment rights are very far from what the progressives are currently after, which is cancellation of these rights for individuals guilty of non-violent crimes or even just deemed likely to commit future crimes. Even the life prohibition for convicted felons who have served their punishments is debatable. Imagine if the First, Fourth, or Fifth Amendments were applied that way.
Mission creep has been especially enthusiastic in that area. One out of 13 American adults has a felony record. As far as domestic violence is concerned, its definition has continuously expanded. A misdemeanor conviction for “domestic violence” now means the cancellation or restriction of Second-Amendment rights; sometimes, a restriction is triggered by a mere accusation.
Economist Anthony de Jasay, who defined himself as a classical liberal (I played with the idea that he may have been a conservative anarchist instead), argued that the state cannot avoid governing, which means discriminating among its citizens, “taking sides” for some against others (see my Econlib article, “An Unavoidable Theory of the State”). The state, de Jasay argued, cannot please everybody, and
[w]hen the state cannot please everybody, it will choose whom it had better please.
He meant that the state had better please its most powerful supporting clientèles.
The optimistic way to look at this circus of professed anti-racists invoking racist laws to protect other diktats of their authoritarianism is that they have finally been caught up in their irreparable contradictions.
Mar 4 2023 at 11:59am
“. One out of 13 American adults has a felony record.”
I did want to make a brief comment on this because while I believe in justice I also believe in redemption and the scarlet letter of conviction can weigh heavily on ex-cons as they try to navigate life after their incarceration/probation trying to get employment.
Not all crimes can be expunged and the laws obviously vary by state. I have done expungements in NJ and I have specifically told the pro bono assignment clerk that to the extent practical to assign my pro bono time to people seeking expungements.
There’s many wrinkles to this, there’s also many levels of government, local, county, state, federal which might maintain records of arrests and convictions. Some states only allow records to be sealed, others still require convictions to be revealed if the person is seeking specific kinds of employment anyway.
But nevertheless, one of the reasons I am posting this here is because I know many of the people who write and post here might be part of academia and they might come across a young person who has made a mistake and might be laboring under the disability of a conviction record and that person might not even be aware that sealing records or expunging a conviction is a potential option. Indeed, it might not be an option, but at minimum it might be something worth considering and in the position that you are in simply mentioning it might have a really dramatic impact on somebody’s future potential.
Mar 4 2023 at 2:42pm
Thanks for these important points, Craig.
Mar 5 2023 at 1:35am
Yeah. And…? In the absence of a state, does discrimination evaporate?
To discriminate means to differentiate; to recognize a distinction. Pretty much every living creature discriminates—at least its digestive system does.
Admittedly, some people use the term discriminate as a shorthand for unduly discriminate (or engage in undue discrimination). I don’t know anyone who disputes that governments (or, as some will insist, individuals serving in government) discriminate—and MUST discriminate. Likewise, I don’t know anyone who argues that government should engage in undue discrimination. Rather than focus on those questions, we focus on the question of what qualifies as undue discrimination.
Perhaps those wacky progressives embrace the theory that US states exercise plenary powers except as constrained by federal law. Of course, the idea that progressives love all forms of government discrimination—for example, the current fad for oppressing drag performers—strikes me as ludicrous; discrimination is beloved by all political parties.
So, which kinds of discrimination does federal law prohibit? SCOTUS argues for construing each law based on the original understanding of its terms. Ergo litigators must play junior historian. And in District of Columbia v. Heller, SCOTUS concluded that the 2d Amendment protects an individual’s right to have a “conventional” weapon in the home for self-defense. But in reaching this decision, SCOTUS recognized/engaged in lots of discrimination. For example, without any textual support, SCOTUS concluded that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” And SCOTUS conclude that government could maintain its traditional prohibition on citizens bringing guns into environments such as … courtrooms. Gosh, who would have guessed?
So yes, the junior historians have discovered instances wherein the framers of the 2d Amendment seemed to accept that government has the right to restrict guns from certain classes of citizens. The Wall Street Journal quotes advocates arguing that these historical restrictions “show that the Framers understood that legislatures could make such judgments to categorically disarm groups of people deemed to be dangerous.” After expending more than 1000 words, Lemieux finds no way to deny this factual claim.
Again, this style of argument is hardly unique to progressives. Noting that the Founders adopted the 1st Amendment while states maintained state-sponsored religions, Justice Thomas argues that the Establishment Clause should not constrain states today. In other words, he supports the rights of state governments to discriminate in establishing an official religion. See Elk Grove Unified School Dist. v. Newdow (Thomas dissenting).
All that said: The theory that states DO exercise plenary powers subject only to federal limits does not necessarily mean that states SHOULD exercise such broad powers. Libertarians regularly argue that states shouldn’t. I merely note that the crazy argument advanced by progressives strike me as a conventional originalist legal argument. You may find that originalism leads to odd conclusions–but that’s the result of SCOTUS embracing this legal theory; you can’t pin that on progressives.
Mar 5 2023 at 11:46am
Nobody: Let me just review a few central points in your elaborate comment.
Like Liberals (I trust you understand that I mean “classical liberals”), I define discrimination as treating individuals differently. The brunt of the liberal intellectual tradition is that the state and its agents have no right to discriminate (while, in private relations, individuals and private bodies should generally be at liberty to do so). That governments should not discriminate is also called the “rule of law.” I cited three economists/legal theorists/political philosophers (all Nobel laureates) who essentially argue that. Doesn’t this make the point that this is the mainstream of the liberal intellectual tradition?
Reading Hayek’s Rules and Order provides a good introduction. My Econlib review is only an imperfect substitute. I must warn you, though, that the book is more 100,000 words, compared to my 1000-word post, so you’ll have even more cause for complaint. Moreover, the book makes for difficult reading. There is an alternative mentioned in my review, from the time when Hayek had not yet realized that the American attempt to limit the state was failing.
It is important to understand that (classical) liberals argue for liberalism, not for the degenerate democracy we observe in Europe or the US, which both the Republican and the Democratic parties support.
Mar 5 2023 at 1:05pm
I surmise we’re having a disagreement about wording; I suspect you mean “That governments should not discriminate UNDULY is also called the ‘rule of law.'”
When someone files a claim for trespass, governments appropriately discriminate between the owners of the property and the people who do NOT own it. When governments elect chief executives, governments then appropriately discriminate between the person who holds that office and all other persons.
When governments hire, should we really want them not to discriminate? That is, to hire 100% of the population? Or 100% of the people who apply? Or just pick an applicant at random? Or would we expect government to refrain from UNDUE discrimination and instead discriminate among applicants solely on the basis of bona fide occupational qualifications?
Again, there is no challenge in deciding whether governments should discriminate (they should) or whether they should discriminate unduly (they shouldn’t). The challenge is in identifying appropriate grounds for discrimination–and distinguishing (a/k/a “discriminating”) between those appropriate grounds and undue grounds.
Mar 5 2023 at 1:26pm
I don;t think your example makes your case. There’s no discrimination in it. Discrimination would be treating people differently. If the government prevents the tresspass of A on B and equally B on A, then there is no discrimination.
If, in your example, A trespasses on B’s land and the government (G) stops them and if B trespasses on A’s land and G stops them, then G is not discriminating. They are treating each individual (A & B) exactly the same in the same circumstances.
Mar 5 2023 at 3:47pm
Imagine the police have a policy saying that they’ll honor requests of landowners to remove people, but not honor the requests of people who don’t own the land. They apply the policy uniformly to A (who owns the land) and B (who does not), treating them as individuals, and end up treating them differently.
Now imagine that the policy have a policy saying that they’ll remove trespassers from properties owned by white people, but not properties owned by black people. The police apply this law uniformly to landowner A (who is white) and landowner B (who is black), treating them as individuals, and end up treating them differently.
We can play semantic games with what constitutes “treating them as individuals.” Or we could adopt the clearer, conventional language: In enforcing trespass laws, government has concluded that discriminating between the property owner and people who do not own the property is DUE (justified) discrimination, while discriminating on the basis of race is UNDUE (unjustified) discrimination.
To some extent, these choices reflect evolving social judgments. When it comes to awarding voting rights, governments discriminate between 17-yr-olds and 18-yr-olds–but they used to discriminate between 20-yr-olds and 21-yr-olds; times change. Some will regard the current discrimination as justified; some will not. I favor acknowledging all forms of potential discrimination equally, emphasizing the subjective nature of some of these distinctions. I haven’t read all the texts recommended by Lemieux, but I fear that they may gloss over some of the arbitrariness (or, phrased less cynically, obscure the opportunity to change government’s judgments about where to draw the boundaries between DUE and UNDUE discrimination).
Mar 5 2023 at 4:24pm
In your first example, there is no discrimination. In your second, there clearly is. In the first, everyone is treated equally (a non-landowner does not have the right to prevent someone from trespassing on what he does not own. That’s the crucial detail missing. If the law did obey his commands, then there would be discrimination against the landowner). In the second, people are not treated equally.
Mar 14 2023 at 12:28pm
The New York Times has a story on this:
“In a 6-3 decision last June, the Supreme Court dramatically shifted the standard for firearm restrictions. Writing for the majority in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas found that gun laws should be judged not by the longstanding practice of balancing gun rights against the public interest, but according to the Second Amendment’s text and the “historical tradition” of gun regulation.
The constitutionality of gun constraints, he suggested, would hinge on whether the government could show a “historical analogue” in the law, either in 1791 when Americans ratified the right to bear arms, or around 1868, when the Fourteenth Amendment extended protections against federal infringements on gun rights to the states.
That originalist view has been celebrated by gun rights advocates….
In Texas, another federal judge recently ruled that it was unconstitutional to take guns from domestic abusers in part because men who beat their wives rarely were prosecuted, let alone forced to relinquish their firearms, until the 1970s.”
Mar 5 2023 at 2:50am
Lemieux seems to regard discrimination against felons as some kind of liberal conspiracy. Yet where voting rights are concerned, a quick review of the map reveals that discrimination against felons is hardly an exclusively liberal preoccupation. Indeed, 2/3 of the citizens of Florida famously voted to restore voting rights to felons—and the Republican legislature has done everything in its power to impede implementation of that policy.
Mar 6 2023 at 7:39am
Speaking of being nitpicky about words, I think you are using liberal wrong.
Mar 6 2023 at 3:01pm
robc: I think you are right. Many people are confused about this and about the difference between a classical liberal and a conservative. This difference has become stark in American politics.