Lubbock, a small city in Texas, is considering a ban on synthetic marijuana. The state of Texas is considering a ban on texting while driving. And Congress is considering an “assault weapons” ban as well as a ban on high capacity magazines.
Question: What do all three of these initiatives have in common? All three are examples of proposed prohibitive law. Bonus Question: What is prohibitive law? A prohibitive law is a law designed to specifically forbid a certain act or an object. Every one of the Ten Commandments except two (numbers 4 and 5 respectively) are prohibitive in nature.
Prohibitive laws, especially those regarding objects and many acts, generally don’t work. They should be opposed by everyone regardless of political inclinations, generational identity, gender, or interest.
Looking back, the most obvious case of prohibitive law was simply known as Prohibition. Under the Eighteenth Amendment to the Constitution the “... manufacture, sale, or transportation of intoxicating liquors ... for beverage purposes ...” was expressly forbidden. From 1919-1933, the criminal use of alcohol drove the dramatic rise of crime within the U.S. The modern conception of organized crime (made famous by Al Capone and others) has its roots in “speakeasies,” “gin mills,” “rum running,” and “bootlegging.” It was so obviously unsuccessful that in 1933 the nation threw in the towel and, by way of the Twenty-First Amendment, repealed Prohibition. In these times the obvious parallel is the “War on Drugs” where the act of manufacturing, transporting, or selling drugs, as well as their consumption, is strictly forbidden.
Rather than write prohibitive law, another option would be to take those items we wish to deter and ensure that they are written in as matters of aggravation. For example, many assert that the war on drugs is not working. So, rather than continue the prohibitive ban on drugs, we could determine that if the person committing assault was under the influence of any drug not currently prescribed by a medical doctor that their altered state would be a matter of aggravation.
By doing this, we can ensure that someone who simply wishes to drink a beer or smoke a joint isn’t a criminal. But someone who gets drunk and batters his spouse now faces a harsher penalty than for simple assault or battery.
Another obvious application of this idea is in the current debate over guns. Rather than ban a form of firearm, make any weapon used in the commission of any crime an aggravating factor. That keeps law abiding gun owners from being unconstitutionally discriminated against and focuses solely on the criminal element.
The key to any successful law is for it to be applied fairly, firmly, and consistently. Our current weapons laws and drug laws turn otherwise good citizens into criminals. That is not fair. When prosecuted, plea bargains often reduce the charges in order to secure a guilty plea. That is obviously not a firm or consistent application of law. If we repeal most prohibitive law, I would recommend against allowing plea bargains that remove the aggravating factors.
No law or process of law is perfect. And some people will do horrible things no matter that the law says. For now, let’s move the focus to the criminal and leave the otherwise law abiding citizen alone.