The State’s Monopoly of Force and the Right to Bear Arms

28 Pages Posted: 16 Oct 2020

See all articles by Robert Leider

Robert Leider

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 14, 2020

Abstract

In debates over the Second Amendment, the conventional view is that the government ought to possess a monopoly of legitimate force, subject to the right of individuals to act in emergency self-defense. Many treat the non-defensive circumstances in which our system decentralizes force as holdovers from days of nonprofessional police and soldiers. When it comes to the Second Amendment, many believe that the only legitimate reason individuals may bear arms today is for individual self-defense against isolated criminal violence (e.g., an occupied home invasion).

This symposium article attacks the monopoly of force account, justifying the continued relevance of American law’s decentralization of legitimate force. This article argues that decentralization of force remains important for three reasons. First, despite the rise of professional police, American law enforcement still enforces law below desirable levels. Underenforcement of core crimes is particularly a problem in disadvantaged and rural communities and during times of civil unrest. Decentralization of force helps mitigate the underenforcement problem. And decentralization may be a better solution than simply providing more police because many areas where law is underenforced also (paradoxically) suffer from the effects of overcriminalization. Increased police presence could make the overcriminalization problem worse without solving the underenforcement problem. Second, American law has a mismatch between public duties and private rights. While providing effective law enforcement is a public duty, it is not a private right. Individuals, thus, have no effective claim that the government adequately enforce the law or protect them against unlawful violence. And any attempt to create such a private right would create profound separation of powers concerns. Consequently, self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. Third, even if the “government” has a monopoly of force, it does not follow that government officers are the only ones in whom the government’s monopoly may be vested. The “government” is an incorporeal entity whose power must be exercised by human agents. Agents do not perfectly carry out the tasks of their principals; some government officers commit malfeasance and nonfeasance. The decentralization of force provides a remedy for such abuses of office.

Ultimately, the article concludes that the individual right to bear arms still has relevance for public defense and security. This fact should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms whose primary value is public security rather than individual self-defense.

Keywords: Second Amendment, legitimate force, law enforcement, private law enforcement, monopoly, overenforcement, criminal law

JEL Classification: K1, K14, K4, K42

Suggested Citation

Leider, Robert, The State’s Monopoly of Force and the Right to Bear Arms (October 14, 2020). Northwestern University Law Review, Forthcoming, George Mason Law & Economics Research Paper No. 20-29, Liberty & Law Center Research Paper No. 20-05, Available at SSRN: https://ssrn.com/abstract=3711661 or http://dx.doi.org/10.2139/ssrn.3711661

Robert Leider (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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