As with all other issues, whether one likes or dislikes firearms and other weapons and whether one opts to possess or refuses to possess them is irrelevant to the question of what laws are proper. We get the appropriate answer if we fairly, reasonably, and honestly determine whether someone is violating the 3L Legal Principle. Stated simply, if a person, even a person possessing a firearm, is not violating the 3L Legal Principle, that person should be left alone. We are not addressing moral questions with this analysis. As usual, the relevant initial inquiry is always whether someone is violating the 3L Legal Principle.

Using a firearm or other weapon to substantially threaten or pose a risk to, or to initiate, force, fraud, or coercion upon another person violates the 3L Legal Principle and should therefore always be outlawed. Under such circumstances, it is justifiable to immediately and forcibly take the item away from anyone. We generally refer to this circumstance as either self-defense or defense of others.

It is generally easy to identify a situation where a person uses a firearm or other weapon to initiate force, fraud, or coercion. Armed robbery is an obvious example. These uses of a firearm or weapon consistently violate the 3L Legal Principle and should remain illegal. On the other hand, correctly ascertaining the circumstances under which a person poses a substantial threat or risk with a firearm or another weapon is sometimes a more complex inquiry. There are three categories of ways a person could present a substantial threat or risk of initiating force merely by possessing a firearm, weapon, or other dangerous substance:

Category One – History of Violating Rule #1 – The 3L Legal Principle

Some people have a well-documented history of violating Rule #1, so their mere possession of a firearm or other weapon automatically equates to a substantial threat or risk of initiation of force. We generally call these people “violent felons.” There may also be a point at which a substantial history of misdemeanor assaults may lead to the same conclusion. It is important to note that not all convicted felons are violent felons. A person could be appropriately convicted of felony theft or any other non-violent felony crime, such that possessing a firearm or other weapon does not pose a substantial threat or risk of violating the 3L Legal Principle. As such, a non-violent felony conviction is insufficient to ban a person from possessing firearms or other weapons.

For the same reason we can properly deny the right to drive to habitual drunk drivers who have repeatedly subjected others to substantial risks arising from their reckless driving, we can properly deny firearms and other weapons to violent felons. Therefore, at some point, when a person is a well-documented violator of the 3L Legal Principle with violence, we can reasonably conclude such a person poses a substantial risk merely by possessing a firearm or other weapon. Exactly where that point occurs is one of those many areas where reasonable minds, equally committed to the 3LP, can disagree.

Additionally, under what circumstances such a person is rehabilitated and no longer poses a substantial risk of violating the 3L Legal Principle merely by possessing a firearm or other weapon is also an area where reasonable minds can disagree. If a convicted violent felon no longer poses a substantial risk of violating the 3L Legal Principle, it would no longer be justified to prohibit such a person from possessing a firearm. We should leave these determinations to local communities to reasonably decide.

We should acknowledge that some people tell us in advance of their intentions to violate the 3L Legal Principle with a firearm or other weapon. Assuming such threats are provable, credible, imminent, and substantial, we should take such people at their word. Therefore, when people credibly announce their violent intentions, they create a substantial threat or risk which violates the 3L Legal Principle. For example, if a firearms owner reveals an actual intent on social media to commit mass murder with a firearm the next day, few would complain if we immediately rendered that person unable to commit such an act. We do not need to wait for an actual violation of the 3L Legal Principle if sufficient evidence exists to act now. Acting to prevent harm from occurring is the very nature of self-defense.

To be clear, I do not propose too loose of a standard to declare responsible people substantial threats or risks. However, we should concede certain appropriate circumstances exist for immediate action. Due process requires that when such an accusation arises, it must be proven in court by the accuser with substantial evidence. As with all allegations, the accused must have a prompt, complete, and fair opportunity to defend while the burden of proof remains firmly on the accuser. If the accusation is not proven, we should immediately return the accused to their original status without cost to the accused. Admittedly, this is not an area for bright-line rules, and we must tread carefully before people are interfered with, or we risk violating the 3L Legal Principle in the process.

Merely because reasonable minds can disagree on precisely when a person can be deemed a “substantial threat or risk” solely by possessing a firearm or other weapon is not a reason to abandon the 3LP. Local communities can and do come to different reasonable conclusions about these issues. That said, the point remains that the scope of the right to keep and bear arms does not necessarily permit possession of firearms or other weapons for the properly convicted violent felon or for those who imminently intend to achieve such a status.

Category Two – Mental Incompetence

Similar to the category including violent felons, another group of people does not have a right to keep and bear arms because their mere possession of a firearm, another weapon, or dangerous substance violates the 3L Legal Principle because they pose a substantial risk of harm to others. Possession of a firearm, another weapon, or any dangerous substance is a right that requires specific serious legal responsibilities. In a free society, competent adults are entitled to do as they wish with their property, but only so long as they do not infringe on the rights of others to be left alone. Posing a substantial risk of harm to another person for any reason infringes on that right.

Responsible and safe possession of firearms, other weapons, and dangerous substances requires mental competency. Because a four-year-old child does not possess the mental competency needed to have these items, we can legally prohibit such a child from keeping and bearing any of these items. Likewise, certain adults who suffer from specific types of mental illness or injury also lack the required mental competency for responsible and safe possession of these items.

In addition to age and certain types of mental illness or injury, temporary conditions such as drunkenness deprive an otherwise competent person of the minimum level of competency to possess firearms, other weapons, or dangerous substances safely. As with the violent felon category, reasonable minds can disagree on what constitutes sufficient mental competency. As such, different local communities should be allowed to come to different reasonable conclusions in this area. There ought to be an appropriate process for determining if and when such deficiencies in mental competency are sufficiently restored. Nonetheless, the law should legally prohibit people who lack sufficient mental competency to safely possess firearms, other weapons, or dangerous substances from having those items.

Category Three – Technical Incompetence

As with the other two categories, the issue is whether the mere possession of a firearm, another weapon, or dangerous substance violates the 3L Legal Principle because the person poses a substantial threat or risk of harm to another person or their property. Considering the universe of firearms, weapons, and dangerous substances, it should be evident that mere possession of some of these items requires a higher degree of technical competence to possess, store, or use such that we do not subject others to a substantial risk of being harmed. Said another way, if a person is entirely ignorant about the nature of the firearm, another weapon, or a dangerous substance, its capabilities, or how to store and use it safely, we can reasonably conclude such a person poses a substantial risk to others by simply possessing the item without appropriate supervision.

For example, the technical competence required to safely operate and store a simple revolver differs from that needed for a fully automatic belt-fed .50 caliber machine gun. While a local community may or may not opt to require a simple class as a prerequisite to owning a basic revolver, we should reasonably expect more extensive training and certification will be required to possess the automatic machine gun. As the weapons get more complex and capable of more significant harm to more people at greater distances, a higher level of technical competency and more detailed storage requirements are required. We can say the same for dangerous chemicals or explosives.

For example, it may be entirely appropriate to require that before any person possesses a fully automatic weapon, that person must present a valid certificate reflecting proper training from a reputable training organization before we can reasonably conclude mere possession of that weapon does not violate the 3L Legal Principle. As with the other two categories, reasonable people can disagree on precisely what level of technical competence is required to possess the item such that there is no substantial risk of harming others or their property. We should expect slightly different but reasonable rules in various local communities in this area.

It is important to note that the requirement of proper competency to possess certain firearms, other weapons, and dangerous substances should never be used as a ruse to simply ban these items by people not committed to a proper application of the 3LP. As such, unreasonable competency requirements that act to deny legal possession to adequately qualified people who do not pose substantial risks consistently violate the 3L Legal Principle. Nevertheless, the fact remains that some technical competence for each item is necessary to avoid posing a substantial risk of harming others. As such, the right to keep and bear arms does not encompass the person who lacks the sufficient technical competency to safely possess, store, or operate a firearm, any other weapon, or dangerous substance.

Conclusion

As I have pointed out, different local communities will predictably fashion different reasonable policies on these issues for various reasons. We should acknowledge different risk assessments and risk tolerances in dense city areas compared to rural ones. As we reasonably apply the 3LP to difficult or complex issues, we should welcome a free market of competing legal rules that will ultimately result in the most just and effective ones prevailing and spreading throughout our country and the world. Indeed, this is the best way to find the most influential freedom and peace-promoting policies, rules, and laws in those areas where reasonable minds equally committed to the 3LP disagree about how best to apply it.

No policy, rule, or law will create a utopia, but the impossibility of a utopia should not undermine our dedication to creating a 3LP-based society. While it is true that laws against murder do not, and will never, eliminate murders, this reality does not mean we ought to abandon laws against murder. Likewise, laws restricting the possession of firearms, other weapons, and dangerous substances in appropriate circumstances, such as the three categories described above, will not prevent all misuse of those items. Nonetheless, we ought to employ our best efforts to keep these items out of the hands of the people in the three groups described above. As a criminal defense attorney for almost thirty years, I have personally witnessed prohibited possessor laws keep firearms out of the hands of some such people. That fact alone makes an effort worthwhile.

If we are serious about attempting to keep firearms, other weapons, and dangerous chemicals away from people whose mere possession of them violates the 3L Legal Principle, failure to attempt to ascertain whether a potential buyer is such a prohibited person completely undermines that effort. As such, instant and effective background checks make sense at the time of purchase. There are different ways to accomplish background checks. We could utilize privately run background checks that do not involve the government. Alternatively, reviewing a coordinated and current list of people specifically prohibited from possessing these items could be sufficient to resolve any background check for those in either Category One or Category Two. If the potential purchaser’s name is not on the list of prohibited possessors, the seller could reasonably assume there is no prohibition. As such, there would be no need for a full or traditional background check of any individual in any event. Regarding Category Three, because different levels of technical competence are required depending on the item to be purchased, local communities will need to create reasonable standards to demonstrate such competence.

Finally, certain nuclear, biological, or chemical weapons may, because of their mere existence, pose a substantial threat of harming others under any circumstances. As such, legally banning them may be consistent with the 3L Legal Principle. When assessing whether a given set of circumstances constitutes a “substantial threat” such that the 3L Legal Principle is violated, we should always consider both the likelihood of the harm occurring and the magnitude of harm that would happen if the threat materialized. For example, even in a circumstance with a low possibility of accidental use, the mere existence of a weapon capable of destroying much of the entire world would likely constitute a substantial threat such that it violates the 3L Legal Principle is violated.

Additionally, given that many, if not all, nuclear, biological, and chemical weapons cannot be utilized solely in a defensive or targeted way only to affect aggressors, it could be argued they necessarily always violate the 3L Legal Principle with every use. We could uniformly ban such weapons entirely for this reason alone.xxii This is an area worthy of much more analysis. I do not intend to resolve these complex issues here.

As with the issue of free speech, it is essential to point out that, in a free society, property owners remain free to ban whatever guns, weapons, or dangerous items they see fit to ban without consulting anyone else or even attempting to justify their reasons for doing so. As homeowners and business owners are free to restrict what they want, others remain free to refuse to do business with them, to non-violently picket, or even loudly voice their disagreement with such policies. These are the consequences of a free society.

Moreover, people remain free to contract with each other to voluntarily and mutually prohibit any or all guns, weapons, or dangerous substances they see fit. Indeed, homeowners’ associations can and do currently have such policies on guns, weapons, other hazardous substances, and many other things, much to the frustration of many people, including me. They are entitled to do so. There is more than one way to reasonably interpret and implement the 3LP, and reasonable minds can and do disagree. However, carefully reasoning from the correct principle is the crucial starting point for the analysis.