The Biden Administration’s “Friendly Censorship”

Murthy v. Missouri is a case that was recently argued before the United States Supreme Court. It involves the allegation that the Biden administration in 2021 coerced social media companies such as Facebook into removing content that concerned COVID-19 and the COVID-19 vaccine, election integrity, and other matters considered important to the Biden Administration.

The factual findings of the trial court in the case are disturbing, if true:

“For   the   last   few   years—at   least   since   the   2020   presidential   transition—a group of federal officials has been in regular contact with nearly every    major    American    social-media    company    about    the    spread    of    “misinformation”  on  their  platforms.  In  their  concern,  those  officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged  the  platforms  to  remove  disfavored  content  and  accounts  from  their  sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed  users.  The  platforms  also  changed  their  internal  policies  to  capture  more  flagged  content  and  sent  steady  reports  on  their  moderation  activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day. “ (5th Circuit Opinion, Case: 23-30445, Document: 00516889176 , Date Filed: 09/08/2023, Pg. 2) (https://law.justia.com/cases/federal/appellate-courts/ca5/23-30445/23-30445-2023-09-08.html)

The Biden Administration and its defenders seem to have responded to these allegations by saying that the factual findings of the trial court are simply mistaken. They claim that the trial court took things out of context, or just outright misrepresented facts:

“While the legal questions presented are legitimate, a substantial amount of the underlying evidence now before the Court in this case is problematic or factually incorrect. Snippets of various communications between the government, social media executives, and other parties appear to be stitched together – nay, manufactured – more to support a culture war conspiracy theory than to create a credible factual record” (https://www.justsecurity.org/93487/a-conspiracy-theory-goes-to-the-supreme-court-how-did-murthy-v-missouri-get-this-far/)

The government says it was merely engaging in its own speech to combat what it viewed as “bad speech”, and that it did not coerce social media companies into taking down social media posts it disagreed with:

“Brian Fletcher, the principal deputy solicitor general of the United States, argued that the government was legally using its bully pulpit to protect the American public.” (https://www.washingtonpost.com/technology/2024/03/18/supreme-court-social-media-biden-missouri/)

Whether the Biden administration was merely engaged in its own speech or whether it intentionally used the threat of force to coerce social media companies into censoring the posts of their users will be determined through the court process.

Even if the government was simply using its own speech to counter what it viewed as “bad speech”, without any intentional threat of coercion, given the reach of government when it comes to regulating the economy, I think companies and businessmen must, of necessity, take into account what a President and his administration say.

In 1962, Ayn Rand wrote an article titled “Have Gun, Will Nudge” in which she discussed the efforts of then head of the FCC, Newton N. Minow, to “encourage” broadcasters to air certain types of “educational programs”. She noted that the arbitrary power held by the FCC in the form of its licensing of broadcasters meant that it didn’t have to engage in explicit censorship. Broadcasters would attempt to discern through their contacts and back-channels with Washington what the FCC officials would like to see on the airwaves, and then provide it:

“No, a federal commissioner may never utter a single word for or against any program. But what do you suppose will happen if and when, with or without his knowledge, a third-assistant or a second cousin or just a nameless friend from Washington whispers to a television executive that the commissioner does not like producer X or does not approve of writer Y or takes a great interest in the career of starlet Z or is anxious to advance the cause of the United Nations?” (Ayn Rand, “Have Gun, Will Nudge” https://ari.aynrand.org/issues/government-and-business/regulations/pov-have-gun-will-nudge/ )

For the people running a television station, or, today, a social media company, not listening to what the President wants them to post or not post would be almost suicidal. The President has enormous power to bring any company to its knees through executive orders and arbitrary regulations. It doesn’t even matter if the President and his administration intends to engage in censorship. The massive and arbitrary power that the President, and the government in general, holds over any company through economic regulation means any broadcaster or social media company has to take into account what the government wants, just as a matter of self-preservation. If Facebook or Google believes that keeping up certain social media posts might have even a one percent chance of getting them slapped with an antitrust suit, the cost of keeping up the post just isn’t worth the benefits. That’s why true freedom of speech likely isn’t even possible today. As Ayn Rand noted:

“The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible.”(“Man’s Rights”, Ayn Rand https://ari.aynrand.org/issues/government-and-business/individual-rights/ )

 

“Lookism” On Netflix

In this story, an unattractive and poor young man, who is the victim of frequent assaults by other teenagers due to his looks and lack of status, magically wakes up in a new, very attractive body, while his original body lies sleeping beside him. He starts a new school in his attractive body during the day, and is awake at night in his original body. He experiences a new kind of social attention, and quickly gains social status due to his attractiveness. But, he makes an effort to befriend several fellow students who are less attractive and less popular. His new-found handsomeness causes conflict with both the more popular teenagers, and also with the unattractive teens he tries to befriend.

I thought the fantasy premise of this story was very interesting. It was much better that his old body was still there, but asleep, while he was awake in his new, attractive, body. When he’d fall asleep in his new body, he’d wake back up in his old body, which was the basis of some comedic content.
 
I also found the misunderstandings that occurred between himself, in his new body, and a couple of other characters interesting. Several people who first met him questioned his motivations, and assumed that he used his handsomeness for nefarious or manipulative purposes.

Throughout watching the series on Netflix, I wondered if there were other people with a similar secret -that they had an ugly body sleeping while their more attractive bodies were awake. At the end of season 1, such a revelation is made, although it wasn’t who I thought it would be. I suspect that there are more people with two bodies in this world, so I hope to see additional revelations in continuations of the series. That, in and of itself, would make an interesting story: a secret society of people who have an ugly body sleeping while their beautiful bodies are out and about.
 
I had two questions about this series. First, I was stunned by the way Korean high schools were portrayed. There seemed to be what could only be described as criminal gangs involved in extortion, robbery, and assault in the school. There was a level of brutality towards the less popular kids that seemed to go beyond mere high school bullying. It felt like these kids were living in “Lord of the Flies”. I’ve seen similar portrayals of high school life in other Korean TV shows. Since I’m not from that culture, and I’ve never studied it, I don’t know if this is just artistic exaggeration of the trials and tribulations of high school life, or if this is really how it is. But, the treatment of the unattractive, low-status teenagers was fairly horrifying to me.
 
My second question concerned the underlying themes in the story. These included questions about the nature of beauty, the earned versus the unearned, envy, social-esteem versus self-esteem, and the basis of social status. It seemed that the main character in his original body was treated badly not only because he wasn’t attractive, but also because he was poor. At one point, a group of kids were even going to publicly criticize him in his new body because he always wore such shabby clothing, and didn’t keep up with fashion trends. This points to the fact that social status is about more than mere looks. Wealth tends to play a role. A wealthy, but ugly, teenager could probably be fairly popular in school, too, just because he’s rich. He could also afford to improve his appearance, since attractiveness is probably only partly biological. Even aside from plastic surgery, he could wear better-fitting clothes, eat better to loose weight, invite attractive kids to hang out with him on his yacht, etc. (I’m somewhat leaving aside the issue of to what extent attractiveness is just “social convention” here, since I don’t want to go down that rabbit-hole.)
 
The main character was viewed as unattractive in his original body, in part, because he was overweight. (He was also below average in height, which, for males, means a lot of women will not consider you a good sexual choice. That’s completely beyond your control.) I tend to think that your weight is somewhat genetic, and therefore beyond your control, to a certain extent. But, I also think it’s possible to manage your weight, even if you have a genetic propensity towards obesity. I think it’s your responsibility to take action, if you have a weight problem. When the main character is awake in his original body, he makes an effort to exercise, although not much improvement is shown in his appearance. I hope that in future seasons of this series, the writers will address this issue further, and show the main character getting serious about improving his physical appearance in his original body through diet and exercise. I think this would be a positive message to convey in this story: that at the end of the day, you are ultimately responsible for improving your situation in life, regardless of how tall/short or thin/overweight you are.

An Observation While Learning Spanish Via The Comprehensible Input Method

I have been trying the comprehensible input method espoused by this site to learn Spanish.

The comprehensible input method seems correct to me, although I admittedly haven’t studied the science that they claim backs up the efficacy of the method. It just “rings true” to me based on my own introspection and knowledge of epistemology and language. The method discards learning grammar in favor of using pictures, gestures, and acting while speaking to make it more like the experience of a child first learning to speak. It also completely discounts speaking a language to learn it. Your are supposed to just gather “comprehensible input”, as that is the only way you are going to truly learn, according to the theory. The input is “comprehensible” because you understand the meaning of the speech, thanks to the gestures and drawings of the speaker, even through you do not understand the language yet.
Something I’ve noticed when listening to native or near-native Spanish speakers is they will mix in certain English words that usually reflects some new technology or imported concept, rather than adopt a specific word for it. Although this can also vary. Spaniards call computers “ordinators”, while Mexicans tend to call them “computeradoras”.

In this video, I noted that the speaker, a Spaniard, called the act of snowboarding, “hacer snow” a few times. In Spanish the substance that falls from the sky would be called “nieve”, so, to his ear, the word “snow” is connected with the concept of snowboarding.

Shazam! Movie Review

Both the 2019 movie and the 2023 sequel for “Shazam!” were recently added to the lineup on Netflix.

These can be described as “adventure comedies”, and were filled with a lot of light-hearted humor. There were three things that I think make these movies work.

First, the protagonist is an adolescent, between the ages of 15 and 18. This created a lot of opportunity for humor, as he went from having a young person’s body to having the body of a grown man. For those who don’t know, the protagonist was given his super-powers by a wizard. Whenever he says “Shazam!”, he goes from his normal form to the form of a superhero with a lightning bolt. (Similar to “He-Man”) Saying “Shazam!” again turns him back into a teenager.

His superpowers are somewhat equivalent to those of Superman. However, he does not know what powers he has in the first movie, and he and his foster-brother go through a rather amusing series of misadventures to discover what his powers are. He also doesn’t learn how to fly until pretty late in the first movie, which creates more comedic situations.

Since they are teenagers, he and his foster brother create a YouTube channel to document the discovery of his powers. Also, since they are just kids, the protagonist starts doing sidewalk demonstrations of his powers for tips, like a street musician or performer might do.  With some of that money, he and his foster-brother go buy beer. They both take a swig, and spit it out, declaring that the beer tastes like vomit. (This made me laugh a good bit.)

Another good feature of the movie was its fantasy element. Unlike most superheroes, the protagonist obtains his power through magic, rather than science fiction. I found the spells, gods, and mythology more interesting, and I thought that it opened up a lot of possibilities, in terms of what stories can be told.

Finally, I enjoyed the references to other, better-known, superheroes in the movies. During both movies, there are references to other heroes in the DC Comics label, such as Batman and Superman. The characters in Shazam! look up to these other superheroes, and try to model themselves on them, but often fall short of the mark because they are children. This creates a lot of good humor. There are also some fairly “inside” jokes. For instance, the protagonist can never settle on a name for his super-alter-ego, which is a reference to the fact that this character has been called different things in the comics, partly due to trademark disputes. At one point, the comic book character was called “Captain Marvel”, but this was changed due to an IP dispute between DC and Marvel Comics.

The protagonist from the Shazam! movies makes a good addition to the other DC movies because he is more like a member of the audience, who is suddenly getting to live the life of his heroes, and has the sort of energy and enthusiasm you’d expect from a child who suddenly found himself having super-powers. I think the character would make an excellent comedic foil or sidekick to one of the more “serious” superheroes, or perhaps he could be worked into one of the Justice League movies. I recommend that you check out Shazam!.

The Basis of Punishment of Criminals When Reading Murray Rothbard and Ayn Rand

The Basis of Punishment of Criminals, Based On My Reading of Ayn Rand’s Theory of Rights and Government

As far as I can tell, Ayn Rand did not discuss the details of government much beyond saying that it would have police, military and courts:

“The only proper purpose of a government is to protect man’s rights, which means: to protect him from physical violence. A proper government is only a policeman, acting as an agent of man’s self-defense, and, as such, may resort to force only against those who start the use of force. The only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law.” (Atlas Shrugged, Ayn Rand, emphasis added, http://aynrandlexicon.com/lexicon/government.html)

Since Ayn Rand said that there would be police, and did not give any other definition of what “police” are, we can assume that she generally accepted the role police play in contemporary society today, so long as that role was delimited to protecting rights.

The way police function today is by catching criminals, taking them to court for an adjudication of guilt or innocence, and then incarcerating those found guilty for a period of time. (Leaving aside certain petty crimes that only involve a fine, and assuming the death penalty does not exist.) Presumably Rand thought arrest and incarceration was appropriate, but how exactly does incarceration protect rights, and whose rights does it protect?

It does not appear that Ayn Rand ever explicitly discusses how it is that the police and the incarceration process protects individual rights. She says that the purpose of government is based in the right to self-defense:

“The necessary consequence of man’s right to life is his right to self-defense. In a civilized society, force may be used only in retaliation and only against those who initiate its use. All the reasons which make the initiation of physical force an evil, make the retaliatory use of physical force a moral imperative.” (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)

I can see how an individual can prevent himself from being murdered by using self-defense. If the victim is armed, he can try to outshoot the person trying to murder him, thereby saving his life. If the victim is a quicker draw than the person attacking him, or just a better shot, then he can stop the attacker with a bullet.  But, in the case of a person already murdered, he cannot act in self-defense, and the state cannot defend him, because he is already dead. How is the state prosecuting the murderer, after the fact, self-defense? It must be in the sense that every other living person needs to stop the murderer from killing again, and for their own self-defense, rather than the defense of the murder victim, who is beyond help.

Even for lesser crimes, what is the probability that the criminal will re-victimize that particular victim? If a bank robber robs a bank, wouldn’t he be more likely to rob a completely different bank in the future? The bank that was just robbed is more likely to take additional security precautions, so it would be smarter for the criminal to find a new target. Although the government is defending the bank already robbed, it is also protecting other banks that have yet to be robbed.

Also, this still doesn’t explicitly answer the question of exactly how does locking up a person convicted of murder help defend the still living, in the case of a crime like murder? (And, I am just assuming that Ayn Rand would be in favor of incarceration, because I don’t know that she ever explicitly says that this is how criminals should be punished.) I don’t think Ayn Rand explicitly answers the question of “how”, but I think I am able to see logical implications based on her writing. For instance, Ayn Rand said the following:

“If a society provided no organized protection against force, it would compel every citizen to go about armed, to turn his home into a fortress, to shoot any strangers approaching his door-or to join a protective gang of citizens who would fight other gangs, formed for the same purpose, and thus bring about the degeneration of that society into the chaos of gang rule, i.e., rule by brute force, into the perpetual tribal warfare of prehistorical savages.“ (“The Nature of Government”, The Virtue of Selfishness, Ayn Rand, emphasis added.)

So, it is “organized protection against force” that is the goal of government. Government is not primarily “organized revenge” or even “organized retaliation”. Government exists for purposes of protection. Only actions by government that protect against force are justified. But, what about the person already murdered? How can he be protected by government? Clearly, the dead cannot be protected, only the currently living. Whatever government does to the murderer is done to protect the currently living, not for the sake of the deceased.

I see only two ways that a government can provide “organized protection against force” in the case of murder, which is generally considered to be the worst crime:

(1) Government establishes a penalty for murder, and that penalty is always imposed, so that everyone is discouraged from committing murder. Government imposes a penalty to protect the currently living from being murdered in the future. The only way that penalty will work is if it is, in fact, imposed whenever a murder is committed. The government is threatening the use of force to protect the currently living. The threat of force by the government is not against any particular individual, but against everyone in society. Another way to look at it is that government promises or declares that anyone who violates individual rights by initiating physical force will be met with force.

(2) Government actually uses force to prohibit future crimes being committed by a specifically identified murderer. Government is actually imposing the force, rather than merely threatening the use of force, to protect the currently living from that particular, identified, murderer.

The first is the “deterrent” or “general deterrence” argument for punishment. The second I’d call the “restraintist” argument for punishment, although I think some legal philosophers might say this is “specific deterrence”.

I should note that I can somewhat see a third basis for how government can provide “organized protection against force”. It would be very understandable that the family and friends of the murdered person would want to enact revenge on the murderer by killing him. I doubt that this feeling is rational, but it is very understandable. It’s also very likely to take place if there is no organized government. By having an organized system of punishment, government can provide friends and family members of the victim with sufficient emotional satisfaction that they might be less inclined to seek revenge. I think this “retributivist” basis might just be a form of “deterrence”, in the sense that it discourages the victim’s friends and family members from seeking revenge against the killer.

Another point to note is that I don’t think the first two, and maybe not even the third, possible bases on which government imposes “organized protection against force”, are necessarily mutually exclusive.

Unfortunately, Rand does not give much in the way of detail about how government, and in particular, the police, will protect individual rights, other than to say that the police represent a delegated and organized use of force in self-defense against criminals. The logical implication seems to be that the police are not just defending the victim, who, in the case of murder, is beyond help, but everyone else in society that could be the criminal’s next victim. A further logical implication is that this organized use of force by police is in the form of incarceration, which serves the purpose of restraining the particular criminal from future crimes, and/or deterring future crime by others.

The Basis of Punishment of Criminals For Murray Rothbard

If my interpretation of the Randian basis for punishment, as lying primarily in “deterrence” and “restraint” is correct, then Murray Rothbard would disagree with Rand. (At the very least, I disagree with Rothbard about the basis of punishment.)

Rothbard explicitly states that retributivism is the basis of punishment of criminals:

“It should be evident that our theory of proportional punishment: that people may be punished by losing their rights to the extent that they have invaded the rights of others, is frankly a retributive theory of punishment, a ‘tooth (or two teeth) for a tooth’ theory.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Rothbard does say that the purpose of using force in retaliation is self-defense:

“Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to ‘take the law into his own hands’? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim’s right of self-defense.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

But, in many cases, the principle of “an eye for an eye” does not seem to have anything to do with anyone’s defense, whether that be the victim, or other people that the criminal might victimize in the future. The retributivist focuses on the punishment aspect, rather than the defense of others, and this seems true for Rothbard. For instance, he says that a person who has been assaulted should have the right to beat up his attacker in return:

“In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Although the threat of getting beat up might, to a certain extent, serve a deterrence effect, this is not why Rothbard advocates it. Instead, it is because he thinks the perpetrator of a crime should have the same done to him. (“A tooth for a tooth.”) To me, this seems completely senseless. How does the victim beating the shit out of his attacker, after the fact, help the situation? Also, how would this prevent the victim from being beat up in the future? With incarceration, the attacker is put in jail for a period of time, which better ensures the victim’s safety.

Rothbard does address the “deterrence” viewpoint, and another major modern school of thought, regarding the purpose of incarceration, which is the “rehabilitation” viewpoint. His critique of the “deterrence” viewpoint is that it would involve the use of levels of punishment that most people would regard as inappropriate or unfair. So, for instance, most people would regard shoplifting as a minor crime, and that the punishment should be very light. But, Rothbard says that if shoplifting were legal, then many more people would commit the crime of shoplifting than if the crime of murder were legal. He says this is because more people have “…a far greater built-in inner objection to themselves committing murder than they have to petty shoplifting, and would be far less apt to commit the grosser crime.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

As far as I can tell, Rothbard provides no evidence that people would be more likely to commit shoplifting than murder if the two were legal. This does seem likely to me too, but I have no basis for saying that, other than I like to think that most people are not prone to commit murder. If there were no laws, isn’t it likely that people would kill or steal when they thought it would suit them? Does it even matter what they’d do if there were no laws? If we have a theory of rights based on the fundamental right to life, like Ayn Rand’s philosophy, then doesn’t that philosophical system say that murder must be worse than shoplifting, precisely because the former is an assault on the fundamental basis of rights? So, wouldn’t that be the basis of a system of proportionality, in which murder is punished more harshly than shoplifting? This would only seem to be a problem for someone with a utilitarian philosophical basis, which is what Rothbard is criticizing when he criticizes the deterrence school:

“Deterrence was the principle put forth by utilitarianism, as part of its aggressive dismissal of principles of justice and natural law, and the replacement of these allegedly metaphysical principles by hard practicality. The practical goal of punishments was then supposed to be to deter further crime, either by the criminal himself or by other members of society. But this criterion of deterrence implies schemas of punishment which almost everyone would consider grossly unjust.” (The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”, emphasis added.)

Clearly, Ayn Rand is not a utilitarian, but, as already discussed, her views on rights and the nature of government would suggest that “deterrence” is part of the purpose of incarceration of criminals. Incarceration would be for the purpose of protecting the rights of people living in society, as well as the original victim, if he is still alive.

Rothbard also dismisses the “rehabilitation” viewpoint because it would seem to lead to absurd results, like incarcerating someone for shoplifting for longer than a murderer, if it is determined that the murderer has been successfully rehabilitated and will not commit more crimes:

“…in our case of Smith and Jones, suppose that the mass murderer Smith is, according to our board of ‘experts’, rapidly rehabilitated. He is released in three weeks, to the plaudits of the supposedly successful reformers. In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible and clearly un-rehabilitated, at least in the eyes of the expert board. According to the logic of the principle, he must stay incarcerated indefinitely, perhaps for the rest of his life…”(The Ethics of Liberty, Murray N. Rothbard, Chapter 13, “Punishment and Proportionality”)

Although I cannot find support in Ayn Rand’s writing for this, I believe “rehabilitation” does play a role in the length of incarceration of someone convicted of a crime, but not quite in the way that I think this term is used by philosophers of law. I think that the possibility that the convict can “rehabilitate” himself, due to the possession of a volitional consciousness means that the length of a prison sentence may be less than the convict’s life. Since people possess volition, even a murderer can change his thought patterns and his actions for the better in the future. I disagree that the government or society can “rehabilitate” a convict, but I think that the convict can “rehabilitate” himself. Lesser crimes, besides murder, are therefore likely to carry less than a life sentence, given the fact of human volition. I think the possibility of self-rehabilitation by the convict is a major factor to consider when weighing the proportionality of the punishment in relation to the crime. The fact of volition must be weighed, as much as possible, against the possibility that a person found guilty of a minor crime might go on to commit more serious crimes in the future, while at the same time, recognizing that the commission of a minor crime might be a “fluke” or a one-time event that would not be repeated by the convict. Additionally, someone found guilty of a murder, who is facing a life sentence, is likely to lie to get out of prison early, so making the determination that he is truly rehabilitated is not going to be easy.

Admittedly, unlike the retributivist system of crime and punishment proposed by Rothbard, determining the extent of the punishment in particular circumstances, along the lines I have proposed, would be more difficult. “An eye for an eye” has the advantage of being easy to implement. If someone is beat up, then they get to beat up their attacker, which makes assessing the punishment easy, albeit ridiculous and irrational.

 

A Comparison and Contrast of Ayn Rand and Murray Rothbard On Warfare

Ayn Rand on Warfare

As far as I can tell, Ayn Rand did not write much about when a nation has a right to use organized physical force, on a mass-level, against other nations or other armed groups.

Her essay, “The Roots of War” discusses how Statism is the fundamental source of war in modern times. In that essay, she does not explicitly deal with when, and to what extent, a free or semi-free nation may use its military force. She does make it clear that a free nation should have a military, and that sometimes it should be used:

“Needless to say, unilateral pacifism is merely an invitation to aggression. Just as an individual has the right of self-defense, so has a free country if attacked. But this does not give its government the right to draft men into military service-which is the most blatantly statist violation of a man’s right to his own life. There is no contradiction between the moral and the practical: a volunteer army is the most efficient army, as many military authorities have testified. A free country has never lacked volunteers when attacked by a foreign aggressor. But not many men would volunteer for such ventures as Korea or Vietnam. Without drafted armies, the foreign policies of statist or mixed economies would not be possible.” (“The Roots of War”, Capitalism: The Unknown Ideal, Ayn Rand, emphasis added.)

Determining when an individual can use force in self-defense can be quite difficult by itself. It becomes even more complicated when the issue is “scaled up” to a nation-wide or world-wide level.

Since I cannot find anything from Rand’s explicit writings on the conditions under which a country can use military force, I want to start by looking at her writing on when an individual can use physical force.

One passage that I have found helpful in making the distinction between the use of physical force in an improper way verses the use of physical force in a moral manner comes from her essay “The Objectivist Ethics”. In that essay, she discusses what is the difference between the use of physical force “in retaliation” and the use of physical force as an “initiation”:

“The ethical principle involved is simple and clear-cut: it is the difference between murder and self-defense. A holdup man seeks to gain a value, wealth, by killing his victim; the victim does not grow richer by killing a holdup man. The principle is: no man may obtain any values from others by resorting to physical force.” (The Objectivist Ethics, Ayn Rand)

For Rand, whether force is “retaliatory”, which is moral, or an “initiation”, and therefore immoral, turns on her view of values, and who is entitled to those values. For Rand, a value is that which one acts to gain and or keep, with the ultimate value being “man’s life”:

“The Objectivist ethics holds man’s life as the standard of value- and his own life as the ethical purpose of every individual man.” (The Objectivist Ethics, Ayn Rand)

So, one must hold “man’s life” as the standard, and the purpose of holding that standard for each individual man is his own life. Values are those things which one must have in order to live. Thanks to their rational faculty, human beings can create these values in much greater quantities than they would exist in nature. (For instance, agricultural technology creates much more food per acre of land than would typically be found growing in a similarly sized area of natural land.)

If each man holds his own life as his ethical purpose, then the values he creates, are for himself and for maintaining his own life. In the case of using physical force, whether that force takes the form of a punch, a bullet, or a bomb, it is an “initiation of physical force”, if one is attempting to obtain the values which others have created for their own sustenance. It is “retaliatory force” if one is merely attempting to keep what one has created for oneself.

Something that is not quite captured by the quote from Rand above is the case of someone not trying to gain the values of others, like a bank robber. Some people are simply trying to destroy the values of others, such as a terrorist who kills for some obscure political reason, or a “serial murderer”, who may kill not because they gain any particular value, in any rational sense, from it, but to satisfy some psychological craving. In that case, I think she would still consider this to be an initiation of physical force because they seek to deprive others of their values. So, I think you could expand the concept of an initiation of physical force to include both the use of physical force to gain the values of others, and also to destroy the values of others.

At any rate, Rand’s point is clear. It is not the physical act, the use of physical force, that makes something an “initiation of physical force” versus “retaliatory force”. The action itself may look the same, and the context in which it occurs will determine whether it is “initiation” or “retaliation”. For instance, you cannot merely see a man shoot another man and conclude with certainty that the man who fired the bullet has initiated physical force. You would need to know something about the conditions under which that occurred. For instance, if it was revealed that the person who was shot was wearing a vest of explosives under his jacket, and had just expressed an intention to go detonate it in a crowded movie theater, the shooter is quite probably acting in retaliation against an initiation of physical force. In that case, the man wearing the hidden explosive vest has taken affirmative steps to kill a large number of people by putting together the explosive vest, putting it on, walking towards the movie theater, and expressing an intent to use the bomb. He has initiated the use of physical force. (Although the act is not completed yet.) He has started the use of physical force, and that physical force is directed at the destruction of other people’s values, in this case, their very lives.

For Rand, a nation or a society is nothing but a number of individuals:

“A nation, like any other group, is only a number of individuals and can have no rights other than the rights of its individual citizens.” (“Collectivized ‘Rights’” Ayn Rand, http://aynrandlexicon.com/ayn-rand-ideas/collectivized-rights.html )

Therefore, a nation and its military has no greater rights than the rights of its individual citizens. What would be an initiation of physical force for an individual would be an initiation for a nation. Similarly, retaliatory force for a nation is physical force that is not aimed at gaining the values of others or depriving others of their values, but at protecting the values of the nation’s citizens.

Murray Rothbard on Warfare

Murray Rothbard seems to hold similar views to those of Rand when it comes to the state as nothing but a collection of individuals.

Additionally, he would hold that all states, insofar as they hold the exclusive right to the use of retaliatory physical force in a given geographic area, are illegitimate, but I am not looking to address his advocacy of “anarcho-capitalism” here. I am instead considering his views on warfare, within the existing framework of nations, as he does in Chapter 25 of his book, The Ethics of Liberty.

For instance, early in Chapter 25 of his book, Rothbard says:

“To be more concrete, if Jones finds that his property is being stolen by Smith, Jones has the right to repel him and try to catch him; but Jones has no right to repel him by bombing a building and murdering innocent people or to catch him by spraying machine gun fire into an innocent crowd. If he does this, he is as much (or more of) a criminal aggressor as Smith is.” (The Ethics of Liberty, Rothbard, Chapter 25, Pg 190)

But, what if Smith deliberately hides in a crowd of people, and fires his gun at Jones? Can Jones fire back? Whose fault is it if Jones accidentally hits a bystander during the course of returning fire on Smith, when Smith deliberately used other people as cover? Rothbard does not address the issue.

Rothbard then “scales up” his individual scenario to a group of individuals:

“The same criteria hold if Smith and Jones each have men on his side, i.e. if ‘war’ breaks out between Smith and his henchmen and Jones and his bodyguards. If Smith and a group of henchmen aggress against Jones, and Jones and his bodyguards pursue the Smith gang to their lair, we may cheer Jones on in his endeavor; and we, and others in society interested in repelling aggression, may contribute financially or personally to Jones’s cause. But Jones and his men have no right, any more than does Smith, to aggress against anyone else in the course of their “just war”: to steal others’ property in order to finance their pursuit, to conscript others into their posse by use of violence, or to kill others in the course of their struggle to capture the Smith forces. If Jones and his men should do any of these things, they become criminals as fully as Smith, and they too become subject to whatever sanctions are meted out against criminality. In fact, if Smith’s crime was theft, and Jones should use conscription to catch him, or should kill innocent people in the pursuit, then Jones becomes more of a criminal than Smith, for such crimes against another person as enslavement and murder are surely far worse than theft.” (The Ethics of Liberty, Rothbard, Chapter 25, Pg 190)

Rothbard never seems to want to address, in Chapter 25 of “The Ethics of Liberty”, to what degree, if at all, you can risk the lives of innocent people in defending yourself. If you cannot risk the lives of others at all, then there are very few cases where even clear-cut acts of self-defense are justified. A bullet could always go astray and hit an innocent bystander.

For Rothbard, exactly who has violated rights, if you are forced to defend yourself, shoot an attacker, and, for instance, the bullet goes through your attacker and hits someone behind him? Common law legal systems would likely limit culpability to what is ‘foreseeable’, or some other similar concept. This is the idea that whether you commit a rights violation has something to do with your intent, and/or what you could have expected to be the reasonable probable result of your actions. So, if a bullet goes through your attacker, makes a weird series of ricochets, and hits someone you didn’t even know was behind your attacker, you are probably going to be excused from any sort of legal culpability. (It should go, almost without saying, that nothing I say here should be construed as legal advice.)

My point is, your intentions, your state of mind, to some extent, matters when you use force. Why does your state of mind matter? I think Ayn Rand would say it’s because it points to your purpose in using force. If your purpose in using force is to protect your values, that is different from using force to destroy another person’s values, or to gain another person’s values:

“The ethical principle involved is simple and clear-cut: it is the difference between murder and self-defense. A holdup man seeks to gain a value, wealth, by killing his victim; the victim does not grow richer by killing a holdup man. The principle is: no man may obtain any values from others by resorting to physical force.” (The Objectivist Ethics, Ayn Rand, emphasis added.)

Accidentally shooting a bystander while defending yourself from a robber is not an attempt to obtain values. This is not to say that all such accidental shootings of bystanders should be completely excused by the legal system. Maybe some particularly reckless acts in self-defense should cause some level of criminal liability, but the level of culpability is probably not the same.

When you shoot a hold up man in self-defense, and accidentally shoot someone else, your level of culpability is lesser (although possibly not completely excused). Why? because you were not seeking ‘to gain a value’. You were seeking to protect a value. Your intentions when using force matter.

What does this all have to do with warfare? It gives us guidance on how to look at uses of force by certain countries. If a country is attempting to kill enemy soldiers and accidentally kills civilians in the process, this is not the same level of culpability as intentionally targeting civilians, because the country is not seeking to destroy values. Furthermore, it may even completely excuse the unintentional killing of civilians, in some circumstances.

Go back to the individual level for a moment. Imagine if a criminal shoots at you with a baby strapped to his chest. You have no ability to take cover, and you cannot safely run away without getting shot, so you shoot back and kill the baby in the process of shooting the robber. Have you violated the baby’s rights? I think the answer is very circumstantial, but I can see a set of circumstances where you would have no other choice. (It’s an extreme, ‘lifeboat scenario’, admittedly.) In that case, the fault lies with the person who strapped a baby to his chest and then tried to kill you, leaving you with no other choice but to die, or shoot back.

More fundamentally, how is the risk that you might hit an innocent bystander in an act of self-defense different from the possibility that, for instance, your car might suffer a mechanical breakdown while you’re driving it, go out of control, and hit a pedestrian? Both are actions aimed at enhancing or promoting your life. Both could have unintentional and even unforeseeable, deadly consequences for innocent third parties. I do not think that others have a right to be 100% risk-free from your actions. If that were the case, then things like airplanes would have to be illegal. It’s always possible an airplane will malfunction, fall from the sky, and kill a family in their home. Airline companies, to a certain extent, put us all at risk of death from crashing airplanes.

All other people have a right to is that you will not: (a) intentionally use force to deprive them of values, nor will you: (b) use force in such a way that it would be reasonably foreseeable that the force would deprive them of their values. (Examples of such unreasonable uses of force would be things such as: driving a car at 80 mph through a neighborhood street where children are about, target shooting with your gun in a field that children are playing in, etc.)

Expand the situation of the criminal using a baby strapped to his chest as a human shield to the national level. If an organization of terrorists hides behind civilians, and then fires rockets at your country, can your army shoot back with rockets? Again, it’s going to be very circumstantial. Sometimes, the army might be able to stop the attacks in some other way, such as an anti-missile system. But, sometimes, the army may have to fire missiles back, and, in the process, unintentionally kill civilians. In that case, the fault lies with the terrorists, not with the army. The terrorists are no different than the criminal who tries to murder you while using another person as a human shield. The responsibility for the death of any innocents lies with the terrorists. For Rand, I believe the initiation of physical force, the rights violation, lies with the person who used other people as cover while committing acts of violence.

Rothbard, on the other hand, does not seem to agree with this. For instance, he considers all nuclear weapons to be illegitimate:

“…a particularly libertarian reply is that while the bow and arrow, and even the rifle, can be pinpointed, if the will be there, against actual criminals, that modern nuclear weapons cannot. Here is a crucial difference in kind. Of course, the bow and arrow could be used for aggressive purposes, but it could also be pinpointed to use only against aggressors. Nuclear weapons, even ‘conventional’ aerial bombs, cannot be. These weapons are ipso facto engines of indiscriminate mass destruction. (The only exception would be the extremely rare case where a mass of people who were all criminals inhabited a vast geographical area.) We must, therefore, conclude that the use of nuclear or similar weapons, or the threat thereof, is a crime against humanity for which there can be no justification.” (The Ethics of Liberty, Rothbard, Chapter 25, Pg 190, emphasis added.)

First, it must be noted that this seems like a suicidal viewpoint. In a world where countries like China and Russia have nuclear weapons, to say nothing of North Korea and Iran, Rothbard’s apparent call for unilateral nuclear disarmament by freer Western nations would mean we’d be subject to nuclear annihilation at the whim of some dictator. But, more fundamentally, who has initiated physical force here? Is it the United States for threatening to obliterate North Korea should that totalitarian dictatorship attempt to harm our citizens, or is it the madmen (and women) in charge of that country? Does the United States gain a value in destroying North Korea’s ability to wage war against us, or does the United States merely preserve the values of its people -that is their lives, liberty and property?

(As an aside, I think Rothbard also forgets about a use of nuclear weapons that would not involve the death of innocent civilians. Imagine an island nation, in say, the East China Sea, that was being invaded by a much larger nation from the mainland. That invasion force would come in the form of a floating armada of ships. What if the island nation were to use nuclear weapons to obliterate the invasion force while it was still in the water? No civilians would be harmed, and the possession of nuclear weapons by that island nation would serve as a deterrent to invasion.)

Rothbard is also fairly explicit that all modern warfare is illegitimate:

“All State wars, therefore, involve increased aggression against the State’s own taxpayers, and almost all State wars (all, in modern warfare) involve the maximum aggression (murder) against the innocent civilians ruled by the enemy State.” (The Ethics of Liberty, Rothbard, Chapter 25, Pg 193)

At root, I think the difference between Rothbard and Rand on the legitimacy of certain acts of warfare by freer nations comes down to Rothbard either misunderstanding, or explicitly rejecting, the fact that the distinction between an “initiation of physical force” and “retaliatory physical force” lies in what values are, and what ultimate purpose they serve. I think Rothbard desired to create a “libertarian” view of Rand’s non-initiation of physical force principle that is severed from Rand’s underlying view of values, and the standard of “man’s life”. I started reading Rothbard’s book, “The Ethics of Liberty” prior to October 7, 2023, but those events caused me to want to write something about his views on warfare in particular. In the future, I will turn back to a comparison and contrast of other features of his book to the ideas of Ayn Rand.

Knowing When To Pronounce Moral Judgment

“I will confine my answer to a single, fundamental aspect of this question. I will name only one principle, the opposite of the idea which is so prevalent today and which is responsible for the spread of evil in the world. That principle is: One must never fail to pronounce moral judgment….

The policy of always pronouncing moral judgment does not mean that one must regard oneself as a missionary charged with the responsibility of ‘saving everyone’s soul’ -nor that one must give unsolicited moral appraisals to all those one meets. It means: (a) that one must know clearly, in full, verbally identified form, one’s own moral evaluation of every person, issue and event with which one deals, and act accordingly; (b) that one must make one’s moral evaluation known to others, when it is rationally appropriate to do so.

This last means that one need not launch into unprovoked moral denunciations or debates, but that one must speak up in situations where silence can objectively be taken to mean agreement with or sanction of evil. When one deals with irrational persons, where argument is futile, a mere ‘I don’t agree with you’ is sufficient to negate any implications of moral sanction. When one deals with better people, a full statement of one’s views may be morally required. But in no case and in no situation may one permit one’s own values to be attacked or denounced, and keep silent.” (The Virtue of Selfishness “How Does One Lead a Rational Life in an Irrational Society,” https://courses.aynrand.org/works/how-does-one-lead-a-rational-life-in-an-irrational-society/)

I read this article when I was about 15 or 16 years old. It’s been over thirty years now, and I’ve re-read it many times.

I’ve tried to live by it, but I’ll admit there have been times when I’ve failed to pronounce moral judgment where I should have. Usually, this was when I was lapsing into some form of altruism, and “felt sorry” for someone, or when I was just afraid for no good reason.

But, even when I try to live by it, I never quite know when it is necessary to make my moral evaluations known to others. Sometimes, it’s clear that I do not need to pronounce any sort of moral judgment. For instance, my online Spanish tutor is quite religious, and during our conversations in Spanish, she will sometimes talk about going to church every Sunday. In that circumstance, I don’t think it’s necessary, or appropriate, to tell her I think Christianity is an institution that has caused 2,000 years of irrationality and human misery.  I also don’t consider this a moral breach on her part. She is from a poor country, with people who are generally less educated, and everyone is quite religious. I consider her religiosity to be a genuine error of knowledge, and our relationship is so delimited, that it would make no sense to try to change her mind. When she talks about church, I just engage in the conversation, and ask her questions about it. For instance, she once said she goes to a Church online, and I asked her, genuinely curious: “How do they handle communion?” (She told me that they pull out their own bread and wine, and the preacher blesses it from a distance -makes as much sense as in person, I guess.)

At other times, I don’t always know where that line is -of when I need to speak out, and say something. I recently had something happen, which I cannot discuss, where I did speak out, but I still don’t know if it was right, or if I should have remained silent. Unfortunately, the older I get, I realize that it is sometimes very hard to apply the virtues, especially when I’m acting on less than perfect knowledge, and I am under an extreme “time crunch”, where I have to make a decision quickly. It also takes me time to “process” certain facts, and it can be months later before I realize the implications of something.

I will say that, even today, it can still cause me a lot of anxiety to pronounce moral judgment. It is sometimes an extreme act of will to proceed with the right course. It seems so contrary to everything that many people in society implicitly and explicitly pressure us to do, whether those people are authors, journalists, teachers, intellectuals, religious figures, or, quite frequently, lawyers.

 

What I Want Right Now

If I could do anything right now, without issues of cost or practicality, this is what I would want:

(1) I would move to another state, probably California.

Reasons: I am tired of living in Texas, and the isolation that I sometimes feel here. Specifically, I’m tired of being in this state as an atheist.  (I’ve blogged about some of my problems being an atheist here before, and I don’t want to mull over bad memories.)

(2) I would open up my own law practice.

Reasons: I want to give practicing law on my own another go. I am happiest when I can entirely control choice of client and choice of cases. Over the past year, I’ve had a client threaten me. I’ve had opposing counsel file a motion for sanctions against me, personally, that was completely unjustified (the judge rightly denied their motion). Now, this might have all still happened if I was out on my own, since some clients and attorneys are just nutty, but I’d like to think I could at least filter out some of the crazy clients, and charge more for dealing with difficult counsel.

The above is what I want, without taking into account any factors that would be obstacles. Now I will talk about the impediments:

(1) Moving to another state would likely lead to my having no sources of income for an indefinite period of time.

Reasons: As an attorney, you tend to be somewhat “tied” to the particular state you have practiced law in for a while. Some attorneys at major national or international firms can go anywhere. But “rank and file” lawyers like me tend to practice in state courts, and get to know the rules of procedure in those particular courts. It would be a learning curve going to another state and learning its courts, assuming, I could even get admitted to that state’s bar without taking another bar exam. (Some states offer reciprocity, and others do not.)

(2) Being a solo practitioner is a daunting task.

Reasons: Filing motions to withdraw for non-payment by clients will be the most common motion you file when solo.  That’s another little “fun fact” of practicing law: you cannot just quit when a client doesn’t pay you. You have to ask permission from the court. The court may say it will prejudice the client’s case if you withdraw, so you have to keep working -for free.

You have to become a debt collector, constantly calling up clients, saying: “Where’s that money you owe me?” Not only do you have to practice law as a solo practitioner, you also have to run a business. Make no mistake about it, the practice of law is a business, and must be approached as such. You have to market, advertise, and manage the back-end accounting, personnel, and other software systems. You need to have a business plan. You need to have sufficient start-up capital to pay for the business, with the assumption that you will not have any income for some time. That means you have to have some way to support yourself while you build up a sufficient “pipeline” of paying clients. Jay G. Foonbert, author of “How to Start and Build a Law Practice”, said:

“Regardless of inflation, recession, boom, or depression, the answer to this question remains the same: You need enough cash (or guaranteed income) to support yourself and your family for one year. In other words, assume that even though your practice grows, you will not be able to take any cash out for one year…I cannot emphasize strongly enough the necessity of starting with adequate capitalization for your living expenses….If I had to choose between opening my doors immediately with only six months’ living expenses, or working as a laborer for two years to have enough living expenses for a year, I would choose the latter course of conduct.” (How To Start and Build A Law Practice, “How Much Cash Do You Need to Start Your Practice?”, Jay G. Foonberg)

In my case, I haven’t even been able to retire all of my student loan debt, yet. The past seven years, I worked steadily at a single law firm. I lived frugally and had low spending habits. I was able to retire a sizeable chunk of my student loan debt, but an even more sizeable chunk remains. I took a job recently with the thought that the additional income could be used to retire my student loan debt in about a year and a half, but that job has not worked out.

I tried practicing law on my own from about 2004 to 2012 before realizing it was not going to work, given my negative wealth from law school. (The choices I made at 23, on going to law school, and my particular choice of law school, were poor, but that is water under the bridge at this point. My situation is what it is, and agonizing about choices made 25 years ago will not change present facts.) From 2012 to 2016, I spent my time mostly in a sort of under-employed “purgatory” for lawyers, known as document review, which is essentially contract work, paid on an hourly basis. The work is not steady, I learned to hate the other lawyers working there, and I walked off several projects because of poor treatment by managers. I was not earning enough money to even pay the interest on student loans, which meant they actually went up instead of down during this time period. After being insulted one too many times by a manager on a document review job, I walked off for the last time, not knowing exactly what I would do. I only knew I wouldn’t do document review anymore. I started applying to advertisements on craigslist by law firms looking for attorneys. That was how I got my seven-year law job in 2016, which I enjoyed quite a bit. I primarily switched jobs because I needed to make more money to compensate for the inherent risks of being a lawyer. (Those risks being clients potentially filing groundless bar grievances against you, and opposing counsel filing frivolous motions for sanctions against you, personally.)

A possible compromise that would give me more of what I want:

(1) Move to Austin, Texas

Reasons: Austin is the closest to California that you can get in Texas. I lived there from 1993 to 1998, and I am generally familiar with the culture. With the university and the tech industry there, Austin tends to be more open to atheists. I know it won’t be utopia, and Austin has its own set of problems, but at least I can become annoyed with a different set of problems for a while. I would still be in Texas, and practicing in Texas courts in Austin. There is still some local variety from county to county, but it wouldn’t take me long to get familiar with those courts and judges. The laws and rules of procedure would be the same.

(2) Open my own practice in Austin

Problems: The problem is that this doesn’t really solve the impediments to having my own law practice. Austin has a smaller economy, and therefore has fewer people capable of paying for legal services. I’d still need enough money to (a) support myself for at least a year, and (b) to pay the start up costs of a law practice. I haven’t really figured out how this would be doable.

This is still a roadblock that I do not know how to solve. I refuse to go into more debt, so the only way I see to solve this is to continue working for others for at least another three to five years, in order to get my debts paid off and also build up sufficient savings.

Ōoku: The Inner Chambers (Review)

In this alternate history series on Netflix, a plague strikes Edo Period Japan that only kills men. As a result, all but a small percentage of men in Japan die. (Around 25% of the male population is left.) The plague continues to kill young men subsequently born, keeping the male population level low. (I assume the mothers of young men with immune fathers are perhaps passing on genes that do not confer immunity, causing continual death for several generations.)
The animated series explores the radical social and political changes that occur in early-modern Japan as a result. Women must become the primary producers economically, and also take control of the reigns of government, with a series of female Shoguns from the Tokugawa family in charge of Japan’s political system. (The underlying political system is essentially the same -with a Shogun in charge, and a figurehead Emperor with no real power. Women simply run it.)
The first episode is set about 80 years after the plague, with a well-established, primarily female society. Men are still rare, and can sell their sexual services, similar to how some women do in real life. Lower class women cannot afford a full-time husband so they will pay a man for sex in the hopes of getting pregnant. The more powerful and wealthy women can afford a full-time husband. The most powerful woman of all, the female Shogun, has a harem of young men at her palace. The first episode centers around one such young man and his eventual rise to become the primary concubine of the new female Shogun.
The following episodes all seem to be a flashback, and explain how this female-centric Japanese society came to be soon after the plague started.
The premise of a plague that kills most of the men is not new. I saw an episode of ‘Sliders’ from the 1990’s that had the same premise. (https://sliders.fandom.com/wiki/Love_Gods ) But, combining this premise with the setting of Edo Period Japan really captures the imagination of anyone who has studied Japanese history, like myself.

Japan has been experiencing a declining population and this series seems like commentary on this national conundrum of depopulation and negative birthrates.

I highly recommend this series.

Transporting A Firearm By Airplane

“The threat of sudden destruction, of unpredictable retaliation for unnamed offenses, is a much more potent means of enslavement than explicit dictatorial laws. It demands more than mere obedience; it leaves men no policy save one: to please the authorities; to please—blindly, uncritically, without standards or principles; to please—in any issue, matter or circumstance, for fear of an unknowable, unprovable vengeance.” (“Antitrust: The Rule of Unreason”, Ayn Rand http://aynrandlexicon.com/lexicon/law,_objective_and_non-objective.html)

Introduction and Disclaimer

(This is a fictional story that I 100% made up, and it sooooo DID NOT happen. Any resemblance to any persons, living or dead, specifically, me, is purely coincidental.)

This summer, I took a vacation to Miami, Florida. I was going to drive there, but I got sick the night before I was to leave. I originally planned to depart Thursday morning, but I was in no condition to drive Thursday. I decided to purchase a plane ticket Friday to make up for the lost time.

I would have carried a gun in a car, as I was driving through “gun-friendly” Southern states that all recognize my Texas gun license or that do not require a permit at all. This is common when I travel by car. If I can legally travel with a gun, then it is very likely I will do so. The gun is part of the kit of safety items I like to have in a car. Other items in my car include: (1) small fire extinguisher, (2) road flares, (3) first aid kit, (4) gas can, (5) sleeping bag, (6) candle (in winter time), (7) matches.

Florida recently changed its gun laws to allow for concealed carry without a permit. In fact, the law changed while I was there, on July 1.  (https://www.flgov.com/2023/04/03/governor-ron-desantis-signs-hb-543-constitutional-carry/)  However, before July 1, I was legal to carry in Florida because the state recognizes my Texas gun license. (https://www.fdacs.gov/Consumer-Resources/Concealed-Weapon-License/Concealed-Weapon-License-Reciprocity)

I believe there is an element of arbitrariness in the rules and regulations regarding transporting a gun on an airplane. Proceed at your own risk, after doing your own research, or consulting with an attorney. (By way of disclaimer: Don’t take anything I say as legal advise, I’m just some dude on the Internet, yada, yada, yada…)

Researching It Ahead of Time

I’ve known for years that you can technically check a firearm as luggage on most airlines, but I was always hesitant to do that because I didn’t want to accidentally run afoul of some random and unknown law or regulation.

Not only do you have to be familiar with the gun laws of the state you are flying from, you also have to know the laws of the state you are flying to. For instance, I would never, under any circumstances, try to check a gun when flying to any of the states in the Northeastern United States or the West Coast. I believe that being in possession of a handgun without proper permitting and licensing in New York is a felony, and although I might be able to legally check it under Federal law, once I land in New York, I am subject to that state’s highly arbitrary, capricious, and draconian gun laws.

I had lived in the State of Florida for several years as a law student, and had actually possessed a Florida concealed carry permit at that time. I was reasonably familiar with the laws, and with my ability to look them up online and confirm what I could and could not do while carrying a gun in Florida.

For this reason, in this situation, the only laws that were a cause for concern for me were the Federal laws regarding the transport of firearms on an airplane. I did some online research, and looked at the Transportation Safety Administration rules. Surprisingly, the TSA has a web page regarding the transport of firearms, and it provides relatively clear guidance. (https://www.tsa.gov/travel/transporting-firearms-and-ammunition )

I also looked at my airline’s web site, which, in this case, was Southwest Airlines. (https://www.southwest.com/help/baggage/special-baggage-sports-equipment) Southwest provides pretty good guidance on what type of case to put the unloaded firearm in (a hard, locked  container that is of sufficient strength to withstand normal handling), as well as how to package your ammo (securely packed in cardboard, wood, or metal boxes designed for carrying small amounts of ammo).

I would recommend flying on Southwest Airlines, or some other airline based in Texas or one of the Southern states, if you plan on transporting a gun by plane. I believe the people working there are more likely to be from Texas or a state with a “gun-culture”, so the employees you deal with will be less likely to be nervous around firearms.

The Gun I Transported To Florida

I decided to take my Smith and Wesson Airweight .38 revolver. (https://www.smith-wesson.com/product/model-442)  It only holds five rounds, and is a relatively small caliber weapon, but it is easily concealable, and comfortable to carry. It also has a nice, heavy trigger pull, which I prefer. It’s a revolver, which I think makes it less “scary” to people. I also think that it is more likely to be a “legal” gun in more jurisdictions. I wouldn’t have to worry about some obscure state law regarding magazine capacity bans, for instance. But, the main reason I went with the revolver is because it’s a fairly inexpensive gun, so if it got lost or stolen, I wouldn’t be that upset about it.

How I Packed My Gun And Ammunition For Transport

I used a small aluminum gun case, about a foot wide by about eight inches tall, with a combination lock built into it. Inside the case was foam to cushion the gun. It was similar to, although not exactly the same as, this.

I was somewhat uncertain on how to pack the ammunition. The rules on the TSA web site were not entirely clear to me. I knew the gun had to be unloaded, but how to store the ammunition?  The TSA web site said: “For civil enforcement purposes, TSA also considers a firearm to be loaded when both the firearm and ammunition are accessible to the passenger.” https://www.tsa.gov/travel/transporting-firearms-and-ammunition  Did this mean that the ammunition needed to be in a separate container entirely from the firearm? Or, was the context TSA was talking about there for whether a firearm was loaded when you tried to go into the secure area of the airport? I thought this is what they meant, but I didn’t want to rely on something so vague. Fortunately, further down, on the same web page, TSA says: “Ammunition may be transported in the same hard-sided, locked case as a firearm if it has been packed as described above.” Southwest also said the same: “The ammunition may be placed in the same container as the firearm…” https://www.southwest.com/help/baggage/special-baggage-sports-equipment The TSA web site also referenced actual federal regulations on the matter: https://www.ecfr.gov/current/title-49/subtitle-B/chapter-I/subchapter-C/part-175#175.10

Additionally, the TSA web site said that: “Small arms ammunition (up to .75 caliber and shotgun shells of any gauge) must be packaged in a fiber (such as cardboard), wood, plastic, or metal box specifically designed to carry ammunition and declared to your airline.” https://www.tsa.gov/travel/transporting-firearms-and-ammunition  I thought that the cardboard box that you buy ammunition in would qualify, although I was not 100% certain on that. This is what I chose to do. To be really certain, I think I’d get a dedicated plastic box meant for holding ammunition, if doing it again. Something like this.

Flying Out of Dallas Love Field

Love Field is the primarily airport that Southwest Airlines uses out of the Dallas area. Checking the gun here was fairly easy.

Southwest has electronic kiosks that allow you to print out the tags to put on your luggage yourself. I approached one of these, and got the stickers that go around the handle of the suitcase. I got one for my suitcase and one for the gun case.

I had called up a friend who is a shooting instructor that day and asked him if he had flown with a gun checked in luggage before, and he said he had. I said I was planning on checking the gun case as a separate piece of luggage.

Southwest says that you can put the gun case inside your suitcase if you want, but I was nervous about that. The reason being is if the gun case was inside my suitcase, I might forget to declare it. If you do not declare it, I believe this is a criminal offense, although I could not find the specific statute that says this. At any rate, when TSA x-rays the luggage, they will see the gun, and you will not have a good time, regardless of whether you get arrested. (And, I’m sure you’ll get arrested.)

I told my friend about this concern, and he pointed out that having the gun case out on its own was going to make it obvious I was checking a firearm, which might make it more likely to get stolen by someone working at the airport, plus it would make the airport employees more nervous to see the gun case. I thought this was also a valid point, but I decided this was less of a danger than forgetting to declare the gun at the ticket counter.

So, anyway, I got the stickers for the gun case and my suitcase at the electronic kiosk, I then walked up to the line to the ticket counter. There was a Southwest employee standing at the end of the line, and he asked me what was in the gun case. (It was pretty obvious it was a gun case, because it was too small to be anything else.) I said “firearm” in as flat and calm a voice as I could. This was my only problem at Love Field. The Southwest employee said something like: “You were supposed to check that over there,” and he motioned with his hand to someplace non-descript. Then he added: “But, you can do it here, too”. This was a point of confusion for me. Southwest says: “You must declare the gun at the ticket counter…”(https://www.southwest.com/help/baggage/special-baggage-sports-equipment ) But, I wasn’t sure what “the ticket counter” was. Is that the electronic kiosks that issues your boarding pass and the stickers for the luggage? I hadn’t seen an option on the computer to declare the firearm. I assumed the “ticket counter” was where you checked your luggage. This Southwest employee seemed to think there was some other place, but he never specified. This is exactly the sort of problem you are likely to encounter when transporting a gun by plane. The employees and law enforcement at the airport don’t seem to know the law or the rules, and there is an element of arbitrariness in them because things like “ticket counter” are not well-defined. You risk arrest and prosecution because words are subject to conflicting interpretations.

I waited my turn in the luggage check-in line, and was initially helped by a younger woman. I held up the gun case and said: “This is a firearm I need to declare.” The younger woman called over an older woman who was presumably her supervisor. The older woman explained to her what she needed to do. The older woman handed me a small slip of paper about the size of an index card that said “Southwest Airlines Firearms Declaration Tag”, and had a spot for my name and address, as well as my airline flight number. On the back was a series of statements that said things like “The firearm chamber is free of ammunition”, with a place to sign at the bottom. I signed the card and handed it back to the older woman. She said: “Do you want to put the gun case inside your suit case?” I said: “I can if you want me to.” She said something like: “It’s better that way because a little case like yours is likely to walk off somewhere.” I unlocked my suit case, and the Southwest employee put the gun in there. She tossed the firearms declaration card on top of the gun case, which surprised me a bit, since it might become separated from the gun case during transit. I told the Southwest employee the lock on the suitcase was TSA-compliant, so they should be able to open it without any problem, then closed and locked my suitcase.

From there, I headed to the security checkpoint, and passed through that, which isn’t too difficult for me, because I have the TSA pre-check ID number.

Flying Out of Miami International Airport

I got so nervous about flying back from Miami International Airport, I considered either shipping the gun back to Texas, or selling it at a pawn shop.

Both of those options would have been difficult, however. My understanding is I cannot ship a gun unless it is done through a Federally Licensed Firearms dealer. I wasn’t even sure that an out of state person in Florida could sell a gun at a pawnshop.

I also thought about buying a screwdriver and taking the gun apart before putting it in the gun case, but I was concerned that might cause me to run afoul of some law. For all I knew, transporting gun parts might have a completely separate set of arbitrary and capricious regulations.

The ammunition was also a concern to me. How sure was I about that box I was transporting it in? Had I actually read on the TSA web site that you could put the ammo box in the same hard, locked case as the gun, or had I just imagined that? I thought about getting rid of the ammo, but how would I do that and not potentially run into legal trouble? Maybe there was some obscure law I didn’t know about for disposing of ammunition?

The reason I was nervous is that although Florida can be considered a Southern State up around the panhandle area, that becomes less and less true the further south you travel. By the time you reach Miami, you are in a Latin American cultural area. I suspected that my time checking a gun at Miami International Airport was going to be more difficult, and that if I made any inadvertent mistakes, it was far more likely that I’d get fully prosecuted by overzealous law enforcement.

I went down to the public computer room at the hotel I was staying at, and reviewed the Southwest Airlines rules and TSA rules on gun and ammunition transport again. I also printed them out so that I could carry them with me when I went to the airport.

After that, I decided I’d just move forward with transporting the gun and ammunition as I had when traveling from Texas. I decided that the mere possibility that some government bureaucrat would try to prosecute me on some non-objective and poorly defined law or regulation was not going stop me from living my life.

Miami International Airport was definitely more nerve-racking. I carried the gun case outside my suitcase as I had before, in order to ensure I would not forget to declare it at the ticket counter.

Something I did differently was to put an Apple AirTag inside the gun case. so that I could potentially track it on my phone, if I needed to. This actually worked, as I could see the AirTag on my phone when I was waiting for my luggage at Love Field, upon my return.

I approached a Southwest employee and asked if the luggage check place was the “ticket counter”. I made sure to use the exact phrase “ticket counter”, since Southwest says “You must declare the gun at the ticket counter…” ( https://www.southwest.com/help/baggage/special-baggage-sports-equipment ) The employee confirmed that. There would then be less of a question that I had gone to what a Southwest employee told me was the “ticket counter”. When it was my turn, I approached the Southwest employee behind the counter at the baggage check, held up the gun case, and said, “I’m checking a firearm.”

The lady at the counter didn’t seemed fazed by it. She gave me a firearms declaration card, which was the same as the one at Love Field. I filled it out, and signed the back again. She took some tape, and taped the card to the outside of the gun case, which made a lot more sense to me. I then asked her if she wanted to put the gun case inside my suitcase. She answered in the affirmative. After that, I though I’d be done. At Love Field, they had taken my suitcase with the gun case in it and just tossed it on the baggage carousel. But, a guy approached me, and the woman said I should go with him and take the suitcase with me. I said okay, and followed the guy, who was a TSA employee. We walked to a door, where another TSA employee came out. I handed the suitcase to the other TSA guy, who said “wait here.” I thought he was talking to the first TSA guy, so I said: “Do you need anything else from me?” He said: “I said you need to wait here.” So, I stood there. The first guy who had escorted me went inside the room with the other TSA guy, but then came back out and stood next to me. It definitely felt like I was being investigated or detained by law enforcement. My TSA escort had a fairly heavy Latin American accent of some sort, which made him difficult to understand. I thought he asked me something about whether I had been to Boston or New York. I told him: “No, I flew here from Texas. I was on vacation here, only in Miami.” I suspected he was trying to get me to say that I had been in Boston or New York because of their draconian gun laws, or because the Feds are on the lookout for gun smugglers to those states. About ten minutes later, the TSA agent inside the room came back out, gave me the thumbs up, and said: “You’re good to go.” I said thanks, and the other TSA agent walked me over to the TSA checkpoint for entering the secured area of the airport. I fully expected to get called on the PA system at some point, while I waiting for my flight. I wasn’t really comfortable until I was in the air, on my way back to Texas.

I wonder what the TSA guy inside the room was doing? I’m guessing he opened my suitcase, and examined the gun case. He didn’t have the combination, so he couldn’t have opened the gun case unless he somehow guessed the combination or could somehow pick the lock. I suspect he tossed my suitcase, checking for any loose rounds that I hadn’t properly packed. I am not sure what would have happened if he had found one, since I don’t know what the penalty would be for that. For all I know, it’s a felony to have loose ammunition in your suitcase. Again, it’s the arbitrariness and the plethora of laws that make this whole process unnerving.

Notes To Self, If I Transport a Gun By Plane Again

I am not sure that I’d do this again. I think the risk of arbitrary prosecution under arbitrary and capricious governmental regulations is probably not worth it. (And, of course, this is all just a fictional story I made up, that definitely did not happen.) I didn’t really think there was a need to carry the gun most of the time while in Miami. I certainly didn’t think I needed it inside the hotel I was staying at. But, if I were going to do this in the future, I have created the following “guidelines” for myself:

Fly on an airline based in a gun-friendly state.

Check a gun you don’t mind getting stolen or lost.

Check a revolver because it’s less “scary” to people.

Take a picture of the gun’s serial number on your phone so that you can easily report it as lost or stolen.

Turn on your phone’s video-recorder at the airport, and at least get audio of the whole check-in process. (But, make sure you are not running afoul of any wiretap or other recording statutes doing this.)

Put an Apple AirTag in The Gun Case

Dress business casual, or better, and have a clean-cut appearance.

Check and double-check that the gun is actually unloaded and in the locked gun case before you leave for the airport.

Don’t bring any carryon items on the airplane, so that there is no chance you inadvertently have a gun or ammunition when you go through the TSA security checkpoints.

Make sure there are no loose ammunition rounds in your suitcase or on your person before you go to the airport. Count out how many rounds you take with you, and make sure they are properly stored before going to the airport.

Buy an ammunition container instead of using the container the rounds come in at the store.

Be polite and courteous to the people at the airport, but be firm regarding your legal right to do what you are doing. Do not volunteer any information you are not legally required to give. Assume that law enforcement, TSA personnel, and airline staff are not your friends, and assume they will not cut you a break if you screw up.

Deal with airline personnel as much as possible, and make them your initial point of contact, rather than TSA or law enforcement officers. You are a customer to airline personnel, whereas TSA and law enforcement sees everyone as a potential criminal. For instance, if you are looking for the Southwest ticket counter to declare the firearm, approach a Southwest employee and ask them, not a TSA official or a cop.

Print out the rules from the airline web site and the TSA web site on transporting firearms and ammunition, highlight the relevant language, and carry it with you. If airline personnel or TSA question any of your decisions regarding how to package the firearm or ammunition, show them the rules you followed.