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What Gun Control and Refugee Admissions Policies Have in Common

What to do with populations in which we can identify threats ex ante only probabilistically? This is a central issue in the U.S. debate over gun rights and gun control, and, in many respects, this debate parallels the argument over refugee admissions policy. Some commentators, mainly on the left, argue that the threat of gun violence, and the risk of accident, is so high that, even though the vast majority of gun owners never shoot someone else, the level of gun ownership should be restricted significantly relative to today’s levels. Other commentators, mainly on the right, argue that gun ownership rights are important to allow people to defend themselves and others. So the right needs to be protected despite the cost in lives and injuries from criminal gun violence and accidents.

If we knew for sure in advance who would use guns to commit crimes, then we could tailor policies to disarm only those individuals. But we don’t, and we can’t. We can probabilistically identify some people with traits who are more likely to use guns for criminal violence relative to others. Denying guns to felons convicted of violent crimes in the past, for example, seems to be a wise policy, as is denying them to people with manifest psychological traits that put them at obvious risk to themselves or others. But even then, people without these traits, or at least without manifest or sufficient evidence of these traits, will use guns to commit violent crimes. So broadly aimed gun-control policies seek to reduce the number of guns in the population overall.

How to respond to risks and threats when one cannot effectively drill down beyond the level of the population itself?

For gun rights, many advocates conclude gun rights need to be protected because of the significance of the right, the current social cost in gun violence and accidents notwithstanding. Liberals, too, are willing to trade away some safety for some rights, albeit, usually for rights other than gun rights. And both right and left would overwhelmingly oppose, say, random house-to-house searches for contraband or evidence of criminal activity. This, despite that police activity of that sort would undoubtedly uncover or deter many crimes.

The intuition about tradeoffs and probabilistic threats applies to policies more broadly than judges apply it, nonetheless, the intuition here is one behind the approach judges often take when they apply the Fourteenth Amendment’s Equal Protection Clause.

At least four variables are involved in asking about the reasonability of a policy classification: What is the trait to be regulated? What is the harm to be avoided? How many people who do not commit the harm will be burdened, and what is the magnitude of the burden placed upon those individuals?

Consider a proposal to limit guns in the population at large: The trait to be regulated is gun ownership. The harms to be avoided are gun violence and gun accidents. The issue is the “fit” between those who hold the regulated trait and those who do the harm. As I mentioned above, the problem with gun control policies is that they are massively overinclusive: The vast majority of people who have the trait (i.e., they own guns) do not cause the harm (their guns are not involved in criminal violence or accidents), yet they would be burdened by policies denying them guns.

Much of the policy disagreement over gun rights and gun control in the U.S. results from different weights that different people place on the different variables. Even if everyone agreed on the objective data – how much gun violence and accidents would be reduced and how many people would be criminally victimized because putative gun owners cannot defend themselves or others – different people can weigh the respective variables differently, and come to different conclusions about the reasonability of the “fit” between the classification and the harms.

I chose a “conservative” example on purpose. With respect to guns, conservatives are willing to tolerate a level of social violence and risk to protect a right. The same reasoning can apply when considering policies related to admitting refugees fleeing of necessity from violence in their own countries. The problem is that terrorists might immigrate under the pretext of being a refugee, and attack people in the nation in which they relocated.

The point is not that refugees must always be admitted regardless of the risk they pose. Far from it. But magnitudes and probabilities matter. As with gun rights, conservatives are willing to accept a level of social harm because the corresponding right is so important and the difficulty of identifying individuals who will commit the harm is too high.

To be sure, the first response of many will be, “But nations do not admit refugees as a matter of right, therefore the initial premise of your argument is wrong.” I agree as a matter of positive law that nations need not admit as a matter of right refugees who, out of necessity, must leave their home country. But that’s tautologically true. There is no positive law right if there is no positive law right.

But the question is not quite as easily answered for people, or for nations, who, or which, affirm commitments to natural rights, such as those articulated in the Declaration of Independence. As I’ve discussed in recent posts, here, here, and here, Hugo Grotius is one of the important natural rights philosophers who developed the tradition articulated in the Declaration. He argues as a matter of natural right that refugees created by “necessity,” such as escaping violence in their home country, have a right to immigrate to other nations, a right that stems from the original collective ownership of the earth.

But even the natural right to take refuge, under necessity, in other countries is not, for Grotius, and absolute right. Grotius writes:

Nor ought a permanent residence to be refused to foreigners, who, driven from their own country, seek a place or refuge. But then it is only upon condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition.  . . . To drive away refugees, says Strabo, from Eratosthenes, is acting like barbarians; and a conduct like this in the Spartans was also condemned. St. Ambrose passes the same sentence of condemnation upon those powers, who refuse all admission to strangers.

An argument we hear often today with respect to refugees from Syria (and from other countries) pertains to Grotius’s proviso that the duty to admit refugees depends on the “condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition.” In the case of Syrian refugees, leaders and citizens fear that terrorists enter their nations hidden among, and under the pretext of being, refugees, but with the intent to attack and injure people in those countries.

Grotius recognizes threat of “tumult and sedition” as reasons that governments can justly to exclude threatening refugees. On the other hand, Grotius also condemns, in St. Ambrose’s words, nations “who refuse all admission to strangers.”

The question for Grotius’ theory is what threshold of risk must be met before exclusion of all refugees from a given country or area is reasonable?

Obviously any individual known to be a terrorist, or even suspected to be a terrorist with any specific evidence or warrant, can be excluded. The problem is when we deal with a large numbers of individuals, the vast majority of whom hold no threat and seek merely to escape violence in their home country, and there is no evidence to suspect one person over another.

It again deserves emphasis nations accepting refugees can consider both the risk and the magnitude of the prospective harm. There are parameters under which exclusion is reasonable. But the notion that that any threat at all, no matter how remote, justifies exclusion of all refugees from a country or region, is simply inconsistent with Grotius’s argument. The class of excluded individuals – all refugees from Syria – is overinclusive relative to the individuals who threaten harm.

To be sure, if admission of refugees were merely a matter of charity, then an overinclusive policy of exclusion wouldn’t matter as an issue of natural justice. But Grotius argues nations must admit as a matter of right refugees who flee out of necessity. If Grotius is correct, then the U.S. (and other countries) need to ask whether the “fit” between the excluded trait (namely, being Syrian) and the harm to be avoided (terrorist activity) is close enough to be consistent with the demands of justice. To be sure, the danger to be avoided, terrorist activity, is a danger with potentially a great magnitude of harm. But the excluded class is also massively overinclusive relative to the group we really want to exclude, those who intend us harm.

Again, the point is not that exclusion is perforce unjust. The point rather is that, if Grotius is correct, nations do not have the option of playing it entirely safe, excluding all refugees from a country if the probability and magnitude of harm are extremely low, but nonetheless greater than zero.

Rather, in a conflict of right with right, policy makers who acknowledge the obligations of Grotius’s form of natural right need to balance the harm to the refugees by excluding them as a class relative to the threat to the policy makers’ nation by admitting them as a class. (And, again, individuals who are known threats can be excluded. There is no problem at all with careful vetting of refugees.) This balancing does not require a commitment to an extreme form of cosmopolitanism in which U.S. policy makers are not allowed to weigh citizens’ lives more heavily than non-citizens’ lives. But even if the level of acceptable risk is appropriately lower with respect to admitting refugees from other nations, the form of a nation’s inquiry should be recognizably related to tradeoffs those nations make when weighing the risks and burdens of overinclusive policies that affect their own citizens.

Reader Discussion

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on May 30, 2017 at 09:23:11 am

Yes - BUT why must Grotius be the *sole* authority on this issue and why must the author posit that immigration is a natural right (albeit with some minor restrictions)?

At the time of the founding, it was considered by many commentators of the time, that unauthorized immigration was an offense against the "law of nations" and was tantamount to an offense by an individual against the "sovereign."
Clearly, the Constitution permits the Congress to protect and punish offenses against the "law of nations."

Of course, some legal wag(s) (Somin(?)) now assert that the "law of nations" with respect to immigration has changed and it is no longer considered an offense. (A form of "living" law of nations if you will). Yet, this may be nothing more than libertarian wishful thinking akin to our own Progressives assertion that ours is a "living constitution."
This unrestricted right becomes a reality ONLY insofar as the open-borders types are able to proselytize, obfuscate and otherwise confuse public opinion / sentiment. Advancing a claim / assertion, does not, in and of itself, validate the claim made by the open borders types. One need only look at the practice of nations to ascertain if this claim be real. It is not; nor should it be, for even if all other nations accepted this falsehood, it remains for the individual nation state to determine who may enter and become part of its polity.

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gabe
on May 30, 2017 at 09:38:27 am

Oops!
In case, I was not clear enough:

The crucial difference between 2nd Amendment "gun" rights is that a) it is a Constitutionally guaranteed right provided to b) citizens, already here and presumably *willingly* subject to the jurisdiction thereof -
as opposed to those who are neither here nor subject to our jurisdiction.

Would the essayist have us extend 2nd Amendment rights to refuges scattered across the globe? Does our constitution apply worldwide?
Although, a number of our Black Robed Guardians on SCOTUS have asserted the opposite - that the world's laws and constitutions apply to us, at times over and above our own laws.

Which shall we have, boyos?

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gabe
on May 30, 2017 at 11:34:45 am

Which shall we have, boyos?

"Boyos"? Buy One [legal right], Yield One Second [Amendment rights]?

Look, gabe, you're simply obfuscating again. The obvious injustice is staring you in the face, but you just refuse to admit it. So let me spell it out for you:

WHAT DOES IT TAKE TO GET TO BE A FULL PROFESSOR AT TEXAS A&M?

Rogers constantly poses the most fundamental questions in the most erudite and engaging way--and he's still a damn associate professor. (Not that there's anything wrong with that!) Still, what's it gonna take? More publications? Better student reviews? Or are we just waiting for an existing professor to die?

(Cue gabe: This is where you chime in and say that Rogers will never get a full professorships in the humanities 'cuz he's white and male. This is your big chance to trot out a paranoid rant when it might actually be accurate....)

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nobody.really
on May 30, 2017 at 14:50:59 pm

nobody:

Stifle yourself Edith!!!!

If there be paranoia to be found, surely it is more likely to be resident in your typical and repetitive rehashing of the sins of the predominant culture from 60 years ago.

Now that is paranoia - looking ahead (ostensibly) and seeing nothing but bogeymen in the rear view mirror.

And for the last time: Do not impute to me those crass motives, false understandings and ill-will which YOUR kind so conveniently attributes to those who do not agree with you.

Quite simply: How is it paranoid to ask a basic question: "How far are the protections of the UNITED STATES Constitution to be extended. Shall it include all those on foreign shores whose regrettable travails have alienated from their homelands."

That shining City on the Hill upon which many base their utopian claims, both for citizens and foreigners alike is a) not quite so shiny as a result of Progressive statist policy prescriptions and most importantly b) it is territorially situated. It ought to serve as a beacon to others not an invitation to our shores and it most certainly OUGHT not to presume to afford to all the world's suffering children the rights, privileges AND obligations of American citizenship.

Goodness gracious, a few years back you and your ilk were castigating George W. Bush for such an attitude. He, however, called it nation building but at root it makes the same assumption - that all God's little chilluns OUGHT to believe and live the same way. Bush II, at least, had the good sense to make no claim, such as do you, that all these chilluns were "entitled" to it.

Now go back to your "resistance" - surely, there must be some taco stand run by white girls that needs to be shut down for cultural appropriation. Now you may feel justified in having brought up Affirmative Action - a topic I do not recall mentioning!

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gabe
on May 30, 2017 at 18:48:39 pm

And now my *resisting* friend, proof positive of MY paranoia, wherein it is revealed that we apparently do seek to provide Constitutional protections to non-citizens: the privilege of voting in american elections whether one is a citizen or not. I mean what the heck, Grotius would approve!

https://pjmedia.com/jchristianadams/2017/05/30/alien-invasion-thousands-of-foreigners-registered-to-vote-and-voting-in-virginia/

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gabe
on May 30, 2017 at 22:08:44 pm

BUT why must Grotius be the *sole* authority on this issue and why must the author posit that immigration is a natural right (albeit with some minor restrictions)?

You are being too gentle, Gabe. Grotius is not the sole, nor in my opinion even a persuasive, authority on the issue. The assertion that the "natural right" of immigration is a thing that must be observed is dismissed for lack of evidence.

Mr. Rogers also claims:

He argues as a matter of natural right that refugees created by “necessity,” such as escaping violence in their home country, have a right to immigrate to other nations, a right that stems from the original collective ownership of the earth.

There was no "original collective ownership of the earth." This is a romantic abstraction.

But Grotius argues nations must admit as a matter of right refugees who flee out of necessity. If Grotius is correct,,,

I think Grotius is wrong. There may be other reasons, some sound policy, others not so much, to admit refugees. The Deus ex machina of natural rights is not one of them.

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z9z99
on May 31, 2017 at 08:09:39 am

Z:

Good to *see* you again!

Then I suppose i must be *gently* paranoid -although nobody.really believes that -Ha!

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gabe
on May 31, 2017 at 10:14:09 am

RE: "Nor ought a permanent residence to be refused to foreigners, who, driven from their own country, seek a place or refuge. But then it is only upon condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition."
I disagree. Much more is required. New immigrants must be required to conform to the values and norms of their new society. It is the values and norms that make the country successful. The laws reflect those values and norms, but they represent the minimal standard, and it's a very minor part of being a full member of the society.

The danger of bringing terrorists into the country is minor. The odds of being killed or injured in a terrorist attack are about the same as getting struck by lightening while bitten by a shark. The real issue is importing large numbers of people who don't share our values and norms so that those values are effectively "watered down". You end up with a society where are large percentage of the population doesn't believe in freedom of speech or equal rights for women or gays.

Further, as other commentators have stated, there is no "right" to immigrate. It is a choice that we as a society have made, and we have the right to demand that membership in our society conform to our values and norms.

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kevino
on May 31, 2017 at 10:35:33 am

With respect to guns, conservatives are willing to tolerate a level of social violence and risk to protect a right.

This isn't really true, since most conservatives that care about gun rights understands that strong 2A protections lessens social violence.

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Ken
on May 31, 2017 at 11:21:37 am

There's a fundamental issue here you're evading: We have a Constitution, a Bill of Rights. Barring a constitutional amendment, some of these decisions have already been made.

In a nation of laws, how can you discuss government policy without reference to the highest law of the land?

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Brett Bellmore
on May 31, 2017 at 12:21:23 pm

Grotius was a Christian writing from an exclusively Christian perspective. He does not directly address the question of whether Muslims had the" natural right" to immigrate to Holland if they wished and transform it into a Muslim country. Since Muslims (and Jews, incidentally) reject the Christian thinking of Grotius, the end result of following the doctrine of a natural right to immigrate will inevitably be a Holland which rejects the Grotius conception of natural rights. (All of them, including but not limited to the natural right to immigrate) I think it's far from obvious that Grotius would have embraced the positions now being attributed to him. Since he held what,in modern parlance would be described as "right-wing Christian fundamentalist views" it's unlikely in the extreme that he would have embraced the subordination of Christianity to Islam.

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Severn
on May 31, 2017 at 12:47:18 pm

The number of Muslims already in the US is very close to the percentage of diagnosed schitzophrentics within the country. By the numbers, the Muslims are the group slightly more likely to engage in mass shootings.

You cede in the piece that the threat of potential violence is adequate to prevent schitzophrentics from exercising a right recognized and codified within the highest law of the land.

And yet, you question (on dubious grounds) the exclusion of refugees from Syria.
Worse, the thin reed you hang the objection upon specifically states "only upon condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition." This obviously and categorically does not apply to followers of Islam. One of the core tenets of that religion is that the entire world must be subjugated to the system of laws laid out by their false prophet, and that this is explicitly to be accomplished by force and threat of force.

Now, you could advance your tenuous argument for admitting the Yazidi and Christian refugees from Syria. Although your argument would be weak, it would reliably carry the day. This would happen not because you're right (debatable at best), but because Americans are a generous people.
But this in no way obligates us to clasp a viper to our breast.

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Luke
on May 31, 2017 at 14:29:20 pm

"As with gun rights, conservatives are willing to accept a level of social harm because the corresponding right is so important and the difficulty of identifying individuals who will commit the harm is too high."

First of all I think you say "conservative" when you mean "libertarian" or "neoconservative".

Secondly, you equate gun-owners who commit crimes with Muslims refugees who commit crimes. And you define the crimes in question in a very libertarian and unconservative fashion. Significant majorities of Muslims in many Muslim countries favor the death penalty for Muslims who leave their religion, or stoning women to death for adultery. These are the sort of people to whom you are granting the privilege of immigration to the West.

Link.

There is nothing remotely "conservative" about welcoming into America people whose beliefs are the opposite of those of Americans.

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Severn
on May 31, 2017 at 14:41:32 pm

Immigration to the rich nations also involves transfer of wealth from the citizenry to the refugee (e.g. welfare, use of infrastructure, etc). As such , the right of people to relocate in modern times also includes a taking. There is no way to resolve the taking as it relies on the principle of controlled borders. This was one of the Brexit problems. The UK offered a high level of welfare to its residents, all paid for by taxes within the UK. The EU treaty required for movement of peoples within the EU. Once EU courts ruled that the same level of welfare must be provided to all inside the UK, regardless of individual payment into the system, length of time in country, etc, the UK had no means to keep the system funded. The high level of welfare is also why the UK does not want to accept Syrian refugees AND why Syrian refugees are illegally trying to get into the UK. This is all before addressing the problem of open borders and the right vote in a Democracy.

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James
on May 31, 2017 at 16:31:35 pm

You ignore the simple fact that the Constitution explicitly establishes a right to bear arms, but nowhere does it establish a right for non-citizens to enter the country.

If you want to amend the Constitution to establish such a right, say so, tell us the precise language, and make your argument. Otherwise this is just academic blather.

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mhj
on June 01, 2017 at 08:39:20 am

Thanks for this article and linking to your article in First Things. Both are very interesting (and I think correct) takes on immigration, gun control and trade.

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Jon Murphy

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