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 of 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.