Malum In Se & Malum ProhibitumSteven Lieberman
Malum In Se & Malum Prohibitum
Back in the early part of this century, there was a brief attempt to establish national reciprocity for CCW holders. Something akin to the current HR-38 that languishes in the House of Representatives. Senator Diane Feinstein was dead set against this. She articulated her views by stating that an individual residing in a “Shall Issue” state (like Nevada) could choose to travel with his firearm across state lines into California for the purposes of harming his estranged wife.
So an individual that has rationalized the act of murder will be stopped because of a prohibition on a method of carry?
On its face, the argument seems idiotic… but when we look deeper, we see a paradigm that governs all of the rhetoric of the Anti-Gun side. On even a deeper level, this same thought process animates many of the policy makers that have a vested interest in the perpetuation of collectivism.
A fundamental belief that rage can be tamed by words. Stoicism, can be legislatively mandated on the most impassioned. That murder… can be forestalled with a restraining order.
There are two types of laws in criminal justice theory. Malum in se, and malum prohibitum… each, must be clearly understood by not only the citizen, but by the legislator.
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Malum in se refers to a law that theoretically the citizen should have a priori knowledge of. We will not delve into the philosophical pedantry associated with epistemology. Suffice to say, there are certain “things” that are so taboo, that anyone with an assertive conscience will simply know it is “bad” without the necessity of a legislator telling them so.
This is not to be confused with moral relativism. In any society, regardless of their development, there are certain constants. Even to include the prohibition on murder. Ritualistic sacrifice and battle might exist, but these acts are not considered “murder”. One does not need the enlightenment of the decalogue to know that “thou shall not murder.”
As such, laws that focus on the codifying of criminal conduct of Malum in se typically have little opposition. They are relatively few and far between, and essentially outlaw those acts that have already been outlawed by our own conscience. Jimminey Cricket may have a legislator in his pocket… but he really does not need him. The fact that the citizen has a conscience at all, serves as the protector of society for these ultra heinous crimes.
Malum prohibitum is a different animal altogether. Essentially, the power of prohibition derived from the law uses the argument: “It is bad, because we say it is bad.” Without knowledge of the prohibition, the citizen could not rationally deduct its existence. In essence, the law exists to help regulate the affairs of people and is subject revision as time and society warrant.
Some laws that have been argued are malum in se, in reality have been malum prohibitum. When society becomes more enlightened (or lazy depending on your perspective), the laws are edited or abolished to fit new circumstances. Laws prohibiting drug possession have been argued to be malum in se since their development following prohibition. Today, arguably many states have changed their views to suggest they are in fact malum prohibitum.
What does remain constant throughout history is the utter folly that comes with the use of malum prohibitumlaws as buttress to those that are malum in se.
This is the standard fare for the anti-gun lobby. The tool of destruction becomes more symbolic then the destroyer. It is not the actor, it is the act. The desire to cause death is less relevant then the means at which the criminal choose to deliver death to his victim.
The scoffing at a restraining order comes from this intellectual disconnect. The estranged wife lies in a pool of blood, still clutching the restraining order she received that morning from the court. Clearly, we must rule out the husband in this murder because… well… she had a restraining order against him! It must have therefore been someone else!
A child can see the idiocy of this line of thinking.
The breaking of a restraining order is a malum prohibitum offense. It is meant to protect the individual that possesses the restraining order from a potential malum in se attack that might come about in the future.
Yet, someone that is prepared to commit a malum in se crime, will have complete indifference to a malum prohibitum offense.
No one ever paused before committing a murder to ensure that the weapon he was using complied with state laws.
There is an old adage amongst those of us in the Second Amendment community, that the only people that torture themselves into compliance with gun laws are those that do not need to be regulated in the first place.
This is profoundly true.
Those that commit malum in se offenses have little need nor regard for the malum prohibitum regulations that cause consternation and contortions among the law abiding. Those that do strive to follow the law, are the least likely to ever commit a malum in se offense.
Thus, we have the bizarre result that weapons that were designed to allow us to protect ourselves from the tyrants that would commit a malum in se violation are so difficult to procure or are otherwise neutered to an extent that the tyrant has both the advantage of choosing the field of battle, and in many instances being better armed then his victim.
The Framers codified the Second Amendment to ensure that the right of the People to keep and bear arms shall not be infringed. Tyranny is the ultimate malum in se offense, and when the defense against tyranny is befuddled by such as convoluted labyrinth, as is the state of our current gun laws, the only beneficiaries are in fact: the tyrants themselves.