Attorney Marc J. Victor's Beliefs About Guns, Other Weapons, and Dangerous Substances

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Attorney Marc J. Victor’s Beliefs About Guns, Other Weapons, and Dangerous Substances

Written by Marc J. Victor, Esq.

Video featuring Attorneys Marc J. Victor and Andy Marcantel

January 28, 2024

Key Points:

• Introduction
• Let’s Not Fight the Facts
• Explaining The Principles I Subscribe To
• The 2nd Amendment
• Three Categories Of Substantial Risks
• Conclusion

Introduction

Congratulations! If you are fortunate enough to have the leisure time to read this article, you won the lottery of birth. We both live at the best time so far to be alive. Like me, I suspect you also live in one of the best places on the planet. Considering our circumstances, most of which we had very little or nothing to do with, we are hugely fortunate. I urge you to pause, take a deep breath, and reflect on this observation briefly before you read on. Let’s both be grateful for our amazing circumstances.

I’ll also request that you afford me an open mind. Are you more committed to holding correct positions on issues or to being firmly entrenched in your current ones? Nobody is correct about everything. We all hold mistaken beliefs. However, being committed to holding correct views above merely maintaining current ones is a sign of a truly sophisticated thinker. I’m writing this article for a sophisticated thinker. I recognize that reasonable minds can disagree, and this article is merely about explaining my personal views.

I’ll start by proudly proclaiming I’m a self-defense absolutist. I claim an absolute right to defend myself against any aggression. I also claim the right to defend my family, friends, and anyone else I choose to protect against any aggression. Indeed, both American law and English common law recognize this concept as my right to defend third parties. Whether another person is intentionally, recklessly, or negligently aggressing against me or my property makes no difference. I claim an absolute right to self-defense with no exceptions.

Under the proper circumstances, I can use a firearm or any other weapon to defend myself. So long as I use a proportional amount of force to repel any threat, I recognize no limit upon what weapon I use to protect myself. To me, this is the correct understanding of the 2nd Amendment to the United States Constitution. That Amendment enumerates my right to keep and bear arms to defend myself or others against any person or any tyrannical government. This includes my right to keep and bear any weapon I choose for defensive purposes.

I’m also not confused about the fact that I have no right whatsoever to aggress against others under any circumstances. I see no exceptions here, either. I’m also an absolutist concerning my position against aggression. Nobody has a right to aggress against another person, whether done intentionally, recklessly, or negligently. This conclusion is why I wouldn’t hesitate to forcibly disarm a clearly drunk person recklessly displaying a loaded firearm with a finger on the trigger. Such a person is recklessly aggressing against and endangering others. I wouldn’t wait to take action until after the clearly drunk person accidentally discharges a round possibly killing someone. Neither the 2nd Amendment nor any other legitimate or civilized rule allows anyone to place another person in substantial danger of harm. As I will explain in this article, subjecting another person to a substantial risk or threat of harm is aggressing. I always oppose all forms of aggression.

I’ll admit that reasonable minds sometimes disagree on exactly what facts constitute subjecting another to a substantial risk or threat of harm. This reality doesn’t change my commitment to the underlying principle. Nor would I seek to impose my personal conclusions about substantial risks and threats on others. However, because a civilized community must have laws, when reasonable minds committed in good faith to this critically important underlying principle disagree on how it applies to a particular factual situation, it seems reasonable to permit local communities (i.e. cities and towns) to decide for themselves about how best to apply it. Indeed, this is what juries do when there is no overarching rule that clearly applies to a specific factual situation.

I know that some people who disagree with this underlying principle could attempt to distort it to compromise the absolute right to self-defense. We must always be on guard for people acting in bad faith who seek to negate the absolute right to self-defense. This potential corruption is why we must strive to genuinely win hearts and minds for the correct principle before we can truly fix what’s wrong with our world. As such, some of the principled ideas I present in this article could not be properly implemented unless and until we have people genuinely committed to the right principle in charge of making, enforcing, and interpreting laws. We cannot have a just society if we are saddled with corruption or people acting in bad faith. With these general thoughts in mind, let’s acknowledge the facts of reality.

Let’s Not Fight the Facts

There are many things I wish were different about the world. I’d love to live in a world where all adults were competent and peaceful. While I like, appreciate, and possess many guns, I don’t worship them. Nor do I demonize them. I’d be happy to live in a utopian world where nobody owned guns for self-defense reasons because it was unnecessary. As we know, such a world is pure fantasy.

When I served in the United States Marine Corps, I had the opportunity to fire many different weapons; several were high-powered, fully automatic ones. I respect them as important tools. I also appreciate that some people enjoy spending their time safely and responsibly practicing their marksmanship with all types of weapons. I respect the rights of competent adults to do what they prefer peacefully.

While we may wish the facts of reality were otherwise, reasonable people who are committed to truth ought to generally agree with the following assertions:

1. There are more than 350 million civilian-owned guns currently in the United States.  As such, guns will continue to exist in the United States forever;

2. Guns by themselves don’t hurt or assault anyone. They are merely tools. People often use guns for good and peaceful purposes like self-defense, deterrence, or sporting events.  Guns have saved and protected countless lives. Guns are also often used by people for evil purposes, like aggressing against others;

3. Like all other dangerous tools, horrible accidents with guns will occur due to both recklessness and negligence. Although we should endeavor to reduce such accidents, there is no way to prevent all accidents with firearms;

4. Most people who want a gun either currently have one, can quickly obtain one, or will soon be able to privately and secretly print or otherwise manufacture one. As such, although some policies could make it more difficult for aggressors to get a gun, such people will always be able to obtain guns regardless of whatever policy or law applies;

5. Some people happily aggress against others. Further, we cannot reason them out of their position. As such, we will always need to forcefully repel aggressors armed with guns;

6. No policy or law regarding guns will eliminate all gun violence;

7. Police officers are our agents. They ultimately derive their authority from us. They cannot protect everyone at all times;

8. All peaceful people have an absolute and fundamental legal and moral right to self-defense;

9. A properly used gun is generally adequate protection against aggressors with knives, fists, and other weapons; and

10. Although other theoretical ways are possible, the only reliable way to stop an aggressor with a gun is a “good guy” with a gun.

Explaining The Principles I Subscribe To

Although we live in the best times, we don’t live in perfect times. Our time is one of the most polarized times in recent history. There are generally only two positions on almost all issues today: either “pro” or “con.” The reckless fervor and loud clamoring of the hostile masses on either side of any particular issue drown out the more nuanced and sophisticated positions on most issues. The gun issue is certainly no exception.

Indeed, I can think of no issue more polarized than the question of gun policy. It has become like a religious cult on both sides. Some people worship guns, while others demonize them.  Many people do not reason based on principle. There is a way to analyze and solve this issue, as well as many others, on a principled basis that is entirely compatible with a reasonably safe and truly free society. As always, the key is recognizing the essential basic principle on which we could base all laws to have a civilized, reasonably safe, and free society. That’s my goal.

Competent adults should be entitled to define and pursue their happiness. They should be totally in charge of their own lives and property. They have the right to be left alone or to peacefully and fairly contract with other competent adults regarding anything they own. A free society requires the proper balance between the rights of one person to do whatever they want with their property and the equally important rights of others not to be interfered with by the aggressive activities of others including the government. This balance is the essence of a free society.

Initiating nonconsensual physical force against another person or their property or engaging in fraud or coercion should be illegal in all cases. It should make no difference even if the force, fraud, or coercion is employed to accomplish desirable results. As an illustration of this point, imagine a thief stealing money from a person and then donating the stolen money to a truly worthy charity. The donation to charity doesn’t legally justify the theft.

Moreover, it isn’t only the actual initiation of nonconsensual physical force that violates the rights of others, but rather the substantial risk or threat of such an initiation also violates another’s rights. It is because of this point that we recognize a justified act of self-defense even before an actual use of unjustified force. That reasonable minds don’t always agree on exactly which circumstances allow a justified act of self-defense doesn’t mean we fail to recognize the principle that one need not wait until another’s fist hits their face before such person can legally and properly act to prevent the aggression. Once a substantial threat is imminent, physical force can properly be used in self-defense. Reasonable people sometimes disagree on what circumstances constitute a substantial risk or threat of initiating nonconsensual physical force such that preventative action is legally allowed. Juries sometimes need to resolve these issues.

A virtuous society can’t effectively be mandated or legislated. We must persuade our fellow brothers and sisters to be virtuous. Indeed, parents, and not the government, must be on the front lines of this effort. We urgently need to help each other become better and more effective parents. I cannot think of a more critical task to move us closer to a virtuous society.

The fundamental principle I have been describing must reasonably be interpreted and applied to the various and countless unique factual situations that life presents. Like any principle, reasonable minds can and do disagree about the proper way to implement it. However, aggression, as defined as initiating nonconsensual physical force, engaging in fraud, coercion, or creating substantial risks or threats of initiating nonconsensual force, should always be illegal.

Maintaining this position is essential in cases where we strongly disagree with how people define or peacefully pursue their happiness. To the extent societies have outlawed aggression, freedom and prosperity have thrived. We should realize we don’t all agree on moral issues. However, taking a position against aggression is the least common denominator of morality upon which civilized people generally agree. If you think about it, most people don’t argue for the morality of initiating nonconsensual physical force against others. The law shouldn’t intervene unless and until someone is properly alleged to have aggressed. Most political questions can be resolved by simply and faithfully analyzing whether someone is aggressing. Issues involving firearms, other weapons, and dangerous substances are no exception.

The 2nd Amendment

As with all fundamental rights in the Constitution, they exist independent of either the government or the Constitution. As such, these rights are enumerated by the Constitution. The government does not grant rights. To be sure, I suspect we both agree that if the 2nd Amendment were constitutionally repealed as it could be, we would nonetheless argue a right to keep and bear arms continues to exist. The same analysis remains true for each of the Amendments and individual rights enumerated in the Constitution.

The 2nd Amendment to the United States Constitution clearly states, “… the right of the people to keep and bear Arms, shall not be infringed.” While recognizing that the right shall not be infringed, the Clause offers no guidance about interpreting the nature and scope of that right. Some people argue the right of the people to keep and bear arms recognizes an absolute right of any person of any age to have any weapon at any place and time under any conceivable circumstance. However, as with almost all constitutional rights, the United States Supreme Court disagrees.

The 1st Amendment to the United States Constitution also uses what appears to be similarly absolute language. It states, “Congress shall make no law …abridging the freedom of speech….” However, the United States Supreme Court has long recognized many varieties of speech that can legally be abridged and indeed totally prohibited, such as fraud, obscenity, defamation, fighting words, child pornography, perjury, blackmail, and solicitations to commit criminal offenses. In this regard, the Court got it mostly right.

All principles require interpretation. No written rule or law fits perfectly in all possible factual situations. Moreover, if you think carefully about it, you probably don’t believe all people ought to have an absolute right to have any weapon under any circumstance.  While everyone has an absolute right to self-defense, the right of the people to keep and bear arms doesn’t allow any person to aggress against another with or without a firearm.

Think about a person properly convicted of 1st-degree murder and sentenced to natural life in prison. Imagine the convict wanting to take his guns to prison as he makes clear his intent to shoot the guards and other inmates. Notwithstanding his claim to an absolute 2nd Amendment right, we wouldn’t allow him to bring his guns to prison even if he loudly shouts “shall not be infringed!” We can properly tell such a person he has no right to keep and bear arms while he is in prison.

The 2nd Amendment protects an absolute right to self-defense with a weapon, if necessary, not a right to intentionally, recklessly, or negligently aggress against others. It is the absolute right to self-defense that must never be infringed.

Three Categories of Substantial Risks

As with all issues, people have preferences and opinions about how the world should be. We are all free to attempt to persuade and convince our fellow humans into and out of any particular belief. This attempt to persuade is part of the nature of a free society.  However, forcefully imposing our opinions and beliefs on another competent adult is entirely different.

We all have opinions about firearms ownership. Some people believe everyone should have any weapon they choose under all circumstances. Others think only law enforcement officers ought to have guns. Some people hold opinions that depend on the gun’s characteristics. We have no shortage of views about gun ownership and possession.

However, as with all other issues, when it comes to guns, the only opinion one can properly insist upon is the mandate not to aggress. After all, everyone has an absolute right not to be aggressed against. This observation is why I claim an absolute right to self-defense. Although one is free to hold any opinion regarding gun ownership and possession, the prohibition against aggressing is the only opinion society should properly legally impose on others. Unless someone is aggressing against another person or their property, there is no proper basis to deny any person possession of any weapon or anything else.

Whether a person is personally pro-gun or anti-gun is irrelevant to the question of what laws regarding guns, other weapons, and dangerous substances are proper. As with different issues, we arrive at the correct legal answer regarding these items if we fairly, reasonably, and honestly determine whether someone is aggressing. Suppose a competent adult, including a competent adult possessing a firearm, any other weapon, or any dangerous substance, is not aggressing. In that case, that person should be left alone as a legal matter. We can say the same for a minor possessing any of these items who is subject to the responsible supervision of a competent adult.

That the question of guns and gun regulation is a recurring hot-button issue changes nothing about my dispassionate and clear-headed inquiry into whether a person is aggressing. That said, it is understandable that many people are currently reluctant to support even reasonable laws affecting firearms due to a well-founded concern that any such laws will be twisted and contorted in bad faith to impose the irrational personal desires of some to ban all guns. Especially in firearms law, slippery slope arguments are real concerns. Indeed, it may be impossible to have a genuine public conversation about this issue or to implement any reasonable laws until we elect people and install qualified judges who are genuinely committed to the right principle.

I recognize that many people will oppose any restrictions on firearms possession out of fear that misguided politicians will contort any reasonable rule into a mechanism to ban guns for even competent, responsible adults who do not aggress. That notwithstanding, I will proceed with my analysis knowing that some who would otherwise agree may withhold their public agreement until they have confidence in the genuine goal of a free society instead of the personal agendas of those who disapprove of competent adults bearing arms.

Intentionally, recklessly, or negligently possessing or using a firearm, other weapon, or dangerous substance to aggress should always be illegal. It is generally easy to identify a situation where a person uses a firearm or other weapon to initiate nonconsensual physical force against another person. Murder and certain varieties of aggravated assault are prominent examples. There is no controversy on this point.

As you know, a person can also aggress by using any of these items to create a substantial risk or threat of an initiation of nonconsensual physical force against another person. If such a circumstance occurs, it is justifiable to immediately, forcibly, and reasonably stop or take the item away from the person creating the substantial risk. There should be no exception to the absolute right of self-defense. Recall the clearly drunk person with the finger on the trigger I mentioned earlier.

Unlike the situation where a person actually initiates nonconsensual physical force against another person, correctly ascertaining the circumstances under which a person poses a substantial risk or threat with a firearm, other weapon, or dangerous substance is sometimes a more complex inquiry. There are three broad categories of ways a person could present a substantial risk or threat of initiating nonconsensual physical force merely by possessing a firearm, another weapon, or other dangerous substance:

Category One - A History of Violently Aggressing

Some people have a well-documented history of aggressing in such a severe way that their mere possession of certain weapons equates to a substantial risk or threat of an initiation of nonconsensual physical force against others. We can accurately refer to these people as “violent felons.” 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 nonviolent felony crime, such that possessing a firearm or other weapon does not pose a substantial risk or threat of aggressing. Therefore, a nonviolent felony conviction should be insufficient to legally prohibit an otherwise competent adult from possessing firearms, other weapons, or dangerous substances. This conclusion is valid because the person’s past conduct does not allow us to reasonably conclude that their current mere possession of such items poses a substantial risk or threat to others.

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 drunk driving, we can properly deny firearms, other weapons, and dangerous substances to properly convicted violent felons. Therefore, at some point, when a person is a well-documented violent aggressor, we can reasonably conclude such a person poses a substantial risk merely by possessing such items. Exactly where that point occurs is one of those many areas where reasonable minds can disagree. We should expect local communities to come to different reasonable conclusions.

Additionally, while reasonable minds can disagree when such a person is sufficiently rehabilitated to no longer pose a substantial risk of harming others, if the person no longer poses a substantial risk, it would no longer be justified to prohibit them from possessing a firearm or other weapon. We should leave these determinations to local communities to reasonably decide.

While some local communities may decide not to release a violent felon from prison until the person no longer poses a substantial risk of aggressing with a firearm, other local communities may choose to release such a person with the legal prohibition against possessing firearms. There is no correct answer here. While you may prefer one solution, we should allow local communities to make such determinations. In these areas, we should not insist upon one-size-fits-all solutions. We should avoid fighting over these points where reasonable minds committed to the same underlying principle can genuinely disagree.

We should acknowledge that some people tell us in advance of their intentions to aggress with a firearm or other weapon. Assuming such threats are proven by a high degree of credible and substantial evidence, we should take such people at their word. Therefore, when people credibly announce their violent intentions, they create a substantial risk or threat of aggressing. For example, if a firearms owner reveals an 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 the precise moment when the bad guy discharges a round from the weapon if sufficient evidence exists to act now. Reasonably acting to prevent an imminent and substantial initiation of nonconsensual physical force from occurring is the very nature of self-defense. To deny this point is to deny the right of self-defense. One need not wait until another’s fist hits their face to act. Indeed, it is for this exact reason we can and should deny entry into a country to any person who has displayed a credible threat of aggressing. To the best of our ability, we should not permit aggressors to enter our country. We each have an absolute right to be free from all aggression.

To be clear, I do not propose too loose of a standard to declare people substantial risks or threats to deny them possession of a firearm legally. That a heated verbal argument occurred between people without more facts falls far short of the mark. However, we should concede certain appropriate circumstances exist when we can take legitimate action because present circumstances amount to a substantial risk or threat of harm. If a substantial threat is not imminent, due process requires that when such an accusation arises, it must be proven in court by the accuser with substantial, credible evidence.

As with all allegations, the accused must have a prompt, complete, and fair opportunity to defend themselves 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. Further, we should treat bad faith accusations as criminal offenses. Admittedly, this is not an area for bright-line rules, and we must tread carefully before people are interfered with, or we risk aggressing against them in the process.

Merely because reasonable minds can disagree on precisely when a person can be deemed a “substantial risk or threat” solely by possessing a firearm or other weapon is not a reason to abandon the principle. Local communities can and do come to different reasonable conclusions about these issues.

Category Two - Legally Determined Mental Incompetence

People who lack the sufficient mental competence to safely possess a firearm, other weapon, or dangerous substance without aggressing against others should be prohibited from possessing such items. Possession of these items is a right with specific legal responsibilities requiring the possessor to exercise in a way that does not aggress. In a free society, competent adults can 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 initiating nonconsensual physical force against another person for any reason infringes on that right.

Responsible and safe possession of firearms, other weapons, and dangerous substances requires an appropriate level of mental competence such that others are not aggressed against. Because a four-year-old child does not possess the mental competence needed to take charge of these items safely, we can legally prohibit such a child from possessing any of these items. Likewise, adults who suffer from specific types of severe mental illness or injury also lack the required mental competence for responsible and safe possession of these items. I am not referring to people who are merely suffering from depression or other forms of non-incapacitating mental illness. Instead, I am specifically referring to people who have lost touch with reality and are no longer legally competent. Such people exist. We should always be careful to draw important legal distinctions in this area.

In addition to age and certain types of specific mental illness or injury, temporary conditions such as drunkenness may deprive an otherwise competent person of the minimum level of legal competence to possess firearms, other weapons, or dangerous substances safely. As with the violent felon category, reasonable minds can disagree on precisely what constitutes sufficient mental competence. Different local communities should be allowed to reach different reasonable conclusions in this area. Further, an appropriate process must exist to determine if and when the person has remedied their deficiencies in mental competence. Nonetheless, the law should legally prohibit people who lack sufficient mental competence to safely possess firearms, other weapons, or dangerous substances from having those items.

Category Three - Technical Incompetence

As with the other two categories, the relevant issue is whether possessing a firearm, other weapon, or dangerous substance constitutes aggression because the person poses a substantial risk or threat to another person or their property. The right to self-defense is absolute, and nobody has any right to aggress against another for any reason, including negligently. Considering the expansive universe of firearms, other 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 an initiation of nonconsensual physical force. No person should be put in substantial danger of harm due to anything another person does. In some cases, if a person is entirely uneducated about the nature of the firearm, another weapon, or a dangerous substance, its capabilities, or how to store and use it safely, we may be able to reasonably conclude such a person poses a substantial risk or threat to others merely by possessing the item without appropriate supervision.

For example, the technical competence required to safely operate and store a basic 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 reasonably require a short, inexpensive introductory class as a prerequisite to possessing a basic revolver, we should expect more extensive training and certification to be reasonably required to possess a fully automatic machine gun. Laws that prohibit owners of such fully automatic machine guns from leaving them loaded and unattended on the kitchen table where their 8-year-olds play are entirely appropriate as this situation places others at substantial risk of harm. We need not wait until an 8-year-old starts recklessly launching rounds downrange before the absolute right to self-defense allows others to take action.

These judgments are another area where reasonable minds disagree, and local communities can fashion different rules. As different weapons are capable of more significant harm to greater numbers of people at further distances, a higher level of technical competence and more stringent storage requirements are required to avoid creating the types of substantial risks that constitute aggression. While no weapon should be illegal, people who possess military-grade weapons should be legally required to store them in ways that do not present substantial risks to others. We can say the same for dangerous chemicals and explosives.

For example, some local communities may find it appropriate to require that before any person possesses a fully automatic weapon, they must present a valid certificate reflecting proper training from a reputable training organization before we can reasonably conclude that possession of that weapon does not substantially endanger others. Simply banning fully automatic weapons outright should never be legally permitted because many people can indeed possess and store them safely.

As we know, a spectrum of different weapons exists that include weapons much more lethal to many more people than a fully automatic weapon. If people can possess such weapons without presenting a substantial risk or threat to others, there is no valid reason to deny them possession of even these more powerful weapons. As with the other two categories, reasonable people can disagree on precisely what technical competence is required to possess the item such that there is no substantial risk to others or their property. We should also expect and tolerate different but reasonable rules in various local communities in this area.

We must never allow people to manipulate the requirement of proper mental or technical competence to possess certain firearms, other weapons, and dangerous substances to become a ruse to ban these items by people not committed to the underlying principle that we are each the iron-fisted dictators of our own bodies, property, money, and time so long as we do not aggress against others. We each have an absolute right to self-defense against the aggressions of others.

People who hold moral objections to competent adults responsibly and safely possessing firearms or any other weapons should never be permitted to impose their views on others through the law. We should never permit unreasonable competence requirements that effectively deny legal possession to adequately qualified people who do not pose substantial risks of harm to others. Such unreasonable rules would always violate their rights. Nevertheless, the fact remains that some technical competence for certain items is necessary to avoid posing a substantial risk to others. The right to keep and bear arms protects the absolute right to self-defense but not a right to aggress against others.

Conclusion

As I have pointed out, different local communities will predictably fashion different reasonable policies to resolve the complex issues presented. We should acknowledge the appropriateness of different risk assessments and risk tolerances in dense city areas compared to rural ones. That said, the right to reasonable and appropriate self-defense is absolute. Said another way, the right not to be aggressed against is absolute. Said yet a third way, no person, group, corporation, or government has a right to aggress. Yes, I said the government. As our agent, because we as individuals have no right to aggress, we cannot delegate any right to the government to aggress. We should strictly hold the government to the same standard of non-aggression as everyone else. Self-defense is acceptable; aggression is not. Claiming an absolute right to self-defense merely recognizes the principle discussed in this article. The analysis is not any different because firearms, other weapons, or dangerous substances are involved. We should apply the same logic to all 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 each country and the world. Indeed, this is the best way to find the most influential freedom- and peace-promoting laws, rules, and regulations in those areas where reasonable minds disagree. No law, rule, or regulation will create a utopia, but the impossibility of utopia should not undermine our dedication to pursuing a truly free, peaceful, and prosperous society and world.

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 try to keep these items out of the hands of the people in the three groups described above. As a criminal defense attorney for over thirty years, I have personally witnessed prohibited possessor laws successfully 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 creates substantial risks to others, a failure to attempt to ascertain whether a potential buyer is such a prohibited person undermines that effort. This concern is why some local communities may conclude instant and effective background checks make sense at the time of purchase. This same logic permits a background check for people seeking to enter a country at an international border.

There are different ways to complete background checks for firearms-related purchases. We could utilize privately run background checks that do not involve the government. Alternatively, reviewing a coordinated and current list of people properly prohibited from possessing these items could be sufficient to resolve or avoid 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. No individual would need a full or traditional background check in this case. Regarding Category Three, because different levels of technical competence are required depending on the item to be purchased, local communities could create reasonable standards to demonstrate such competence for the more complex or destructive military-style weapons, explosives, or dangerous chemicals. Some communities may also decide not to employ any version of background checks for any purpose.

Finally, certain nuclear, biological, or chemical weapons may, because of their mere existence, pose a substantial risk to others under any circumstances. Legally banning them entirely may be entirely appropriate. When assessing whether a given set of circumstances constitutes a “substantial risk or threat,” we should always consider both the likelihood and magnitude of harm that would occur if the risk or threat materialized. For example, even in a circumstance with a low possibility of accidental use, the mere existence of a weapon capable of destroying an entire densely populated megacity would likely constitute a substantial risk such that it constitutes aggression.

Additionally, given that we cannot utilize nuclear, biological, or chemical weapons solely in a defensive or targeted way only against aggressors, it could be argued they necessarily always constitute aggression with every use. As such, we could uniformly ban such weapons from being possessed by any government or other entity entirely for this reason alone, with some important exceptions. Banning all such weapons 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 agree to ban whatever guns, weapons, or dangerous items they see fit to ban without consulting anyone or attempting to justify their reasons. As homeowners and business owners are free to restrict or require whatever 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. Property owners are the iron-fisted dictators of their property.

Moreover, people should be allowed to contract with each other to voluntarily and mutually prohibit any or all guns, weapons, or dangerous substances they see fit. Indeed, voluntary homeowners’ associations and other contractual agreements are sometimes used to draft policies on guns, weapons, other hazardous substances, and many other things, much to the frustration of many people, including me.

Conversely, voluntary homeowners’ associations should remain free to require their homeowning members to possess firearms safely. I like the idea of living in a community where all homeowners have agreed that everyone should be well and safely armed. Imagine the effectiveness of signs posted in the community informing would-be burglars that every homeowner in the community is armed. I suspect the burglars would prefer to victimize the community that has voluntarily agreed to prohibit such firearms. Nonetheless, I respect the rights of other competent adults to make whatever rules they choose on their private property.

Free, competent adults are entitled to enter any agreements they choose regarding their property. There is more than one way to interpret and implement the ideas presented in this article and reasonable minds can and do disagree. However, carefully reasoning from the correct principle should always be the crucial starting point for analyzing all issues.

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