Concerning packs, herds, and vigilantes

Jane Galt suggested that if the anti-war march in New York turned Seattle-like, the good folks in New York ought to meet violence (against property) with violence (against persons). That seems to me like a really bad suggestion. (Though of course Atrios errs in linking Jane’s suggestion to the report of some cowardly pseudo-patriot throwing a brickbat from a passing car into a crowd of children at an anti-war rally, hitting a boy.)

Though I take Jane’s point that the defense of person and property is legitimately the role of the citizen as well as the constable, restraint isn’t the same thing as punishment. There’s a legal term for hitting someone with a two-by-four (or even some smaller piece of wood) because you saw him throwing a rock at a store window: it’s called “aggravated assault,” or in some places “assault with a deadly weapon,” and it’s a felony. (Even a “shod foot” counts as a deadly weapon in most states.) At some point it becomes mayhem or attempted murder. If done by a group, it falls under the statutes covering mob violence.

The details vary from state to state, but not the principle. You can do what is necessary to restrain someone, but that’s the limit. And if he’s just destroying property (other than by fire) you can’t even hurt him very much — you most certainly can’t do anything that has a serious chance of killing him — in restraining him.

So taking the law into your own hands is a dangerous activity even if we leave the politics out of it: if, as Jane says, the people breaking windows were just drunken frat boys rather than anti-war protesters. But when political passions run high, the situation is even worse. When the people wielding the sticks think that the people throwing the rocks are traitors rather than merely vandals, the potential for someone getting maimed is much higher.

And of course the right to defend the person of another against violence extends to the marchers as well as the onlookers. If I were in an anti-war march and saw a fellow demonstrator being assailed with sticks by a mob, it would be my legal right (and arguably my moral duty) to defend that person from felonious assault. His previous participation in misdemeanor destruction of property would be neither here nor there.

Unlike the case of someone merely defending property, I would be justified in using deadly force, if need be, to repel the assault. So if I happened to be exercising my Second Amendment rights by carrying a concealed weapon, I could, lawfully: (1) pull out said weapon, (2) order the mob to cease and desist, (3) fire a warning shot into the ground (Not the air, dammit! What goes up comes down, and at the same velocity, minus air resistance), and (4) if the above didn’t work, shoot as many of the assailants as necessary to stop the assault. “A pack, not a herd.”

Naturally, someone on the other side might observe me shooting into a crowd, and — being a Second Amendment-loving pack-not-a-herd member herself — decide that it was necessary to shoot me, without pausing for a warning. Entirely within her rights, of course, if she reasonably believed that I was shooting people for no good cause. If her aim was accurate, I probably wouldn’t be around later to explain that I had been shooting in vicarious self-defense. Then, of course, after my untimely demise, my fellow peace-loving Second Amendment fans would be justified in blowing her away, after which….

Wait a minute. I’ve seen this movie. It’s called “Weimar Republic.” It has a sad ending, and I purely despise sad endings. I’m walking out.

UPDATE: Jane responds, and in doing so confounds, I think, three sets of issues: defense of property vs. defense of person (of course an armed robber can be handled with deadly force); defense of home vs. defense of other property; and defense by an owner vs. intervention by a bystander. The first two are legally relevant, the third isn’t. But I repeat that using a weapon to prevent damage to someone else’s store is likely to get you in big trouble unless you’re wearing a uniform, and that the rules that make that the case are good rules.

Here’s a question for Jane, and those who agree with her. Consider the goon who threw a brick at a group of anti-war protesters and hit a little boy. Are you really sorry that no one in the crowd opened fire on the fleeing truck? And if not, why not?

SECOND UPDATE

Debate’s over. Time to go home.

Your opponents can make you angry, but it takes people who are (at least in a given argument) on your side to make you ashamed.

More here.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com