Legislating Against Individual Freedom
Leon McGinnis

When the Georgia General Assembly or the US Congress creates a law, the intention often is to protect people from irrational behavior. We seek to prevent an individual from doing something that endangers themselves, such as skateboarding on the freeway, because it might place the rest of us under an obligation to care for them when they are injured. Or we seek to prevent individual behavior that endangers somebody else, for example, by driving an automobile while under the influence of drugs or alcohol. The legislation is (almost) always well-intentioned. But it always involves a loss of individual freedom to choose to behave in a way that seems rational.

This is a dangerous tool to use, because it requires the majority to constrain the decisions of smaller, less powerful groups of people. When we use such a tool, we need to be very, very careful that the protections we create are well worth the freedoms that we destroy. When the freedoms destroyed are viewed by the victims of such laws as enabling rational choices, it is especially important to carefully justify the law.

One of the most regrettable aspects of the modern era is the apparent lack of concern with the loss of individual freedom associated with the avalanche of legislation coming from state legislatures and Congress. Worse, legislators often seem oblivious to the fact that individuals in a given situation may choose very different behaviors, in fact behaviors that may involve some degree of risk. That does not mean that the choices are irrational, or that individuals should be constrained from making them.

Consider the example of gun control. Guns, especially handguns, are dangerous artifacts. Guns purchased for the purpose of self protection are supposed to be dangerous, otherwise they would not be efficacious, and it would be irrational to purchase them; one would be better served to purchase a club or perhaps a bad dog. Attempts to constrain the manufacture of all handguns to render them harmless are misguided, because those purchased for self protection must be dangerous for the purchase to be rational. Guns purchased for sport, on the other hand, could certainly be required to be harmless, for example, by requiring trigger locks, or other similar devices, and doing so would not render their purchase irrational. Thus, legislative attempts to render all handguns harmless reveal something about those proposing the legislation. Perhaps they do not believe that private citizens need self protection or are capable of providing their own self protection. Perhaps in the minds of those who seek to control handguns, the benefits accruing to individuals who purchase handguns for self protection are not worth the perceived cost to society of the risks that such guns will be ill-used. In either case, the legislation has the effect of preventing citizens from making a rational choice to protect themselves; it reduces freedom. It is worth noting that this particular freedom is guaranteed in the Bill of Rights.

Consider the "war on drugs." People consume a wide variety of chemical substances, from caffeine and nicotine, to alcohol, prescribed psychotropic drugs, marijuana, amphetamines, cocaine, etc. When they choose to consume these substances, they are making a choice, perhaps ill-informed, but a choice nonetheless. You may disagree with their choice, but it is, in the context posed here, a rational choice--they do it because they want to. To constrain individuals from making the choice is to assume that they are not capable of making their own choices. I may be fully aware of the dangers of cigarette smoke, but make a perfectly legal decision to smoke cigarettes. Yet, even though I may be equally aware of the dangers of marijuana, it is against the law for me to choose to smoke marijuana. I am permitted to risk my health with cigarettes, but not with marijuana. On what basis can such laws be justified? If the goal is to protect society against the possibility that I damage myself and become a ward of the state, then the rationale solution would seem to be to impose a tax on drugs that is used to provide the necessary services. We already have laws that prohibit me from endangering others while I am under the influence of drugs.