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Law Enforcement Discretion

One of the most amusing things I hear regularly is about how law enforcement (LE) should have discretion regarding the issuance of permits to carry concealed weapons. On it’s face this sounds perfectly reasonable and very desirable. Supporters argue that when LE has or if LE were to be given, discretion more dangerous persons would be turned away and the streets would be safer.

I’ll bang out the most obvious issue with this first, how many supposedly dangerous persons are really going to heed a disapproved carry permit or even bother applying for one in the first place? For my part that is all I need to hear to be against LE discretion. I’m reminded of a quote, one which I can only paraphrase due to my not being able to find it at the moment:

For gun control to work it would require  the cooperation of a very unlikely group of people, criminals. Only those individuals not inclined to disobey the law in the first place can be be expected to comply.

And that does it, I’ve already convinced myself. I’ll go a little further though.

Understand, LE discretion when it comes to arrests and the issuance of citations is a different matter entirely. In those cases we give them discretion because the law cannot foresee every circumstance and reasonable excuse, and in a number of cases, including those where the state is unlikely to successfully prosecute, there is no sense in bringing a charge against a person.

The issuance of permits to carry concealed is totally different. For one, we have the right to keep and bear arms, and given that right, the police should have to show a specific reason why the permit should be withheld, even if you don’t think the right to have weapons in public is really a right we have. Consider how permits are handled (or should be handled) with regard to those wishing to protest.

The police have some discretion here, but with very specific limits. They can’t just decide that your “moral character” isn’t good enough and deny a permit like they can for carry permits in a dozen or more states. They could deny it because of a real safety or security concern, or put a limit on the length to ensure others also have the opportunity to use the park or wherever it is the protest is to be held. They might even charge a fee for the permit itself or for fire or police time dedicated to the occasion and deny the permit based on your inability to cover those costs.

As I said though, your “moral character” or the way you look or act is no reason for denying anything. Getting back to concealed carry, Martin Luther King Jr. applied for a concealed carry permit in Alabama after his home was bombed (1956 maybe?). It was denied because the police had total discretion to decide who was a suitable human being to carry arms. Actually, I guess that is a bad example of what total discretion invites, because being black is obviously a great reason to deny a permit.

Hey, wait a minute, that is an awful reason!

When it comes to violations of the law, discretion is probably a good thing, not everyone really deserves a ticket for speeding. I would imagine that just getting pulled over is embarrassing and irritating enough to compel compliance with the speed limits, at least for a little while. However, when it comes to licenses for anything, to carry a weapon, get married, drive, whatever, the law needs to set out the minimum requirements and they must be issued according only to those.

So discretion isn’t a bad thing in and of itself, but discretion should never be additive. When the police decide to let you off without a ticket, they are subtracting something, but when they are allowed to decide that someone, shouldn’t get a permit even if they meet the legal requirements, they are tacking extra stuff on. (when I speak of subtracting things I mean choosing not to enforce a law or part of a law. Usually the occasions where they may do this are set out in, you guessed it, the law.)

John Adams famously said in Novanglus No. 7,

They define a republic to be a government of laws, and not of men.

He was referring to Aristotle and Livy, among others, and he cuts right to the heart of this issue, because the discretion I am against means a single man may decide what the legal standard is today and may change it with no consultation with anyone next week, tomorrow, or even hours or minutes from now. It’s the very definition of tyranny, “soft tyranny” perhaps, but a rose by any other name would smell as sweet.

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