Is Liberty Innocent Until Proven Guilty?

by David Bier on January 11, 2013 · 2 comments

in Features, Personal Liberty, Zeitgeist

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“What I haven’t heard is one coherent reason any civilian in America needs an AR-15 military style assault rifle.” That was Piers Morgan debating gun control with Ben Shapiro on CNN yesterday. The question — and even Shapiro’s response — betrays a fundamental confusion about the basis for a free society. Free societies place the responsibility on those who would restrain the freedom of an individual to justify their action, not on the individual to justify his freedom.

But the proponents of government action have completely inverted this premise — government power now requires little justification — it is presumed valid — and exercising liberty requires a great deal of justification. I have noticed this distressing trend in my policy area, immigration. Today, if an American employer wishes to hire a foreigner, he must justify this exercise of his liberty of contract through a burdensome gauntlet of regulations. It is presumed that no American employer should have the right to hire a foreigner unless he convinces the government that he, as Piers Morgan put it, “needs” to.

Of course, a right that must be justified and is bestowed entirely at the government’s discretion is no right at all and becomes a benefit, which is how most people think about immigration more generally. There is a presumption that the government should prevent anyone from entering unless they demonstrate some exceptional characteristic. But a work visa is not a food stamp. It does not come at the public expense. It is a small concession to mankind’s natural liberty. Why should the onus be own those who want to allow free association between foreigners and Americans and not on those who want to restrict it?

In fact, this was once America’s immigration policy. Prior to the 1920s “entry was open unless prohibited,” as historian Aristide Zolberg notes, but “it [is] now closed unless authorized.” With guns, the federal government’s assumption is still that you have a right to a firearm (of some type) unless there is a good reason for you not to have that right, such as with criminals. You don’t have to demonstrate some special need for a gun, that you are security guard for example. But with immigration, there is an assumption you do not have that the right to associate unless you demonstrate some special need. How did it end up so backwards?

But immigration is not unique. Marx’s maxim “to each according to his needs” could be applied to everything today. Rather than the Declaration of Independence’s “inalienable rights,” everything is now slowly becoming contingent on “need.” Do the rich really need their wealth? Do gun owners really need their weapons? Do you really need that 20 oz. soda? Do you really need caffeinated alcohol? Do you really need that cheap, incandescent light bulb? Do you need that high flow toilet? It has gone so far that you actually have to justify the liberty not to act: do you really need not to have health insurance? Do you really need not to subsidize abortifacients and contraceptives?

The philosopher may start the political debate at “Do we need government?” But the politicians begins it, “Do we need liberty?” Today, debates in DC always begin with this premise. You want to keep your money? Tell me about how it will increase GDP, which will increase tax revenues and benefit the public treasury. You want big sodas? Tell me about how a ban on sodas will have some unanticipated consequence for “public” health. You want guns? Tell me how they will stop the next school shooting (don’t tell me that a ban is a pointless intrusion on liberty — the burden is on you to prove your need, remember?).

So it is with immigration. Unless you can quantify the economic benefits of not deporting parents of U.S. citizens, don’t bother speaking. The child has no presumptive right to associate with his parents in his native land. With immigration, Americans face a guilty-until-proven-innocent system — in other words, one that restricts their freedom of contract and association until they demonstrate conclusively their need for these liberties. And it seems absurd to some to suggest that it might be otherwise.

This is not the end of the gun debate, or the immigration debate, or the debate over anything else. It is only the starting point. Just remember that the burden of proof is always on the prosecution. Liberty must be held innocent until proven guilty.

Tan Vampire January 11, 2013 at 4:37 pm

The 2nd Amendment, Batman Shooting & High Fructose Corn Syrup
http://www.youtube.com/watch?v=hvIK4cmzeRY

Somhairle January 11, 2013 at 5:33 pm

I bet Randy Weaver and his family would have appreciated a few M-16s. His case is exactly why we all need the second amendment, combat training and sufficient firepower.

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