Firearms, automobiles, and invisible errors.

On the last day of the rapid-fire, no-way-to-keep-up-unless-you're-at-the-capitol, legislative session, SB 1168, a bill prohibiting property owners or tenants from forbidding storage of firearms in locked cars or motorcycles parked on their lots, was passed by the House and Senate.

The bill attracted some rather odd opposition, including that of the Goldwater Institute, which offered to file Private Property Rights Protection Act (2006 Prop. 207) claims on behalf of property owners opposing the bill. Their estimate of the value of the claims: $263 million!

The Goldwater Institute is an oddball hybrid libertarian/conservative think-tank. Like most think-tanks, it does a lot of working backwards from a desired conclusion and choosing methodologies to suit. And like most think-tanks it ends up with some really sharp people (e.g. Matthew Ladner) but many who wouldn't make the cut in the world of true scholarship (e.g. Byron "They're going to regulate our breath!" Schlomach--trust that I'm pulling punches in his case.) But the usual problems aren't what's at work here: what's at work is the silly principlism that dominates most popular libertarian and much right-wing thought.

To think according to heuristic is human, but libertarians and right-wingers both like to elevate some of these heuristics to the status of "principles", which are inviolable rules. Taking stands "as a matter of principle" is considered a mark of virture among the vulgar in both crowds: rather than thinking the strange cases through, apply the "principles" blindly. This happens despite both libertarian and right-wing philosophers' recognition of tradeoffs and conflicts in law. (Law professors and analytic philosophers both love the tricky cases.) I suspect--and I'd love to see a social-scientist tackle the problem--that underlying this is a desire for "moral clarity". Principles, such as "property rights are absolute control", have moral clarity. Casuistry, although the foundation of our legal tradition, inherently recognizes lack of absolute moral certitude. Recognition of tradeoffs destroys moral clarity altogether.

The $263 million figure has been left unexplained to date, and is almost certainly glibertarian hyperbole--the pattern among libertarians and conservatives is to overstate their weak cases. E.g. "Global Warming is Teh Hoax", "Public Schools are Socialist Indoctrination Camps", etc. A hint: invisible acts do not diminish a property owner's use rights. Storage of a firearm out of sight in a locked car is an invisible act; in ordinary circumstances the act of parking is no different whether the trunk is empty, contains a firearm, or a toaster. As I understand it, invisible harms, invisible diminishment of use, has $0 value in our legal tradition. We do not consider sin, that is to say, "Invisible Error", an object of law.

Of course, there are circumstances in which this could be an actual loss to property owners: someone intent on using a firearm to commit a crime decides to not bring his own, and instead starts breaking into auto trunks, gets lucky, and finds a weapon. I'd be willing to support compensation if that happens. And I'd even support compensation for assuming this risk--but it's an incredibly low risk. (Disagree? Then show me where the $263 million figure comes from!) What I do not support is allowing the right of employers and other property owners to prevent Invisible Error to trump the right to self-defense traveling to and from work or otherwise granting hoplophobes a veto over harmless behavior tied to the right to self defense. This isn't even one of those tricky cases. Invisible Error is not, in our legal tradition, a harm.