Astronaut Mark Kelly Doesn’t Seem to Understand How The Law Works

Cory CarlsonNovember 02, 2017 9 minutes

In a recent interview, astronaut turned political activist Mark Kelly sat down with a reporter from Politico to talk about gun regulations. Specifically, Mr. Kelly spoke of the need for tighter restrictions on guns in order to prevent gun violence. When the conversation eventually arrived at the topic of those pesky Republicans in Congress, who are skeptical that gun laws prevent gun crime, Kelly didn't mince words, offering this rather bold proclamation:

"I think if you're a member of Congress and you fundamentally believe laws don't work, you should quit. I mean, you really should. You're in the wrong job. And that goes for anything, including this issue."

There's only one tiny problem with that statement: it fundamentally misrepresents how the law works. As I will endeavor to show, no lawmaker in the history of lawmaking has ever once exercised the degree of faith in the preventive power of the law that Mr. Kelly apparently requires of Republican legislators. His position is little more than a red herring, and the best evidence in support of my position is an inherent property of laws themselves.

First, a Little Background Info

Mark Kelly spent a year living in outer space, which undoubtedly makes him a pretty big deal. But that's arguably not what made him famous. Sadly, Mr. Kelly became a household name for the dutiful way in which he stood by his wife, Congresswoman Kathy Giffords, when a 2011 assassination attempt left her badly wounded.

What happened to Mrs. Giffords --and the multiple people who were injured and killed by the gunman in the attack-- is the stuff of nightmares. In light of the heartache they've endured, it's not at all hard to understand why Mr. Kelly is a passionate advocate for policies which he thinks might spare others from gun violence. His advocacy seems sincere and I admire his courage, even if I don't entirely agree with the political philosophy underpinning his advocacy.

Lest there be any confusion, I want to make it abundantly clear that I am not upset with Mr. Kelley because he and I do not see eye-to-eye politically. On the contrary, I am a firm believer in the marketplace of ideas and I'm stalwart defender of people's right to advocate for what they believe in, even if it differs from my own view. Moreover, reasonable people on both sides of the issue can offer solutions to the problem of gun violence, so I don't want to give the impression that this a topic unworthy of consideration, nor is this a screed against gun laws, generally.

What I take issue with is when people act as if their mission is so righteous, their cause so just, their feelings so deeply felt, that the end justifies any means, such as using intellectually dishonest arguments to attack their opponents. That is what I accuse Mr. Kelly of, and here's why I think he's wrong.

An Inherent Property of Any Law is That it Will Only Ever Prevent SOME People From Doing Bad Things

When Moses descended from Mt. Sinai, tablets in hand, neither he nor God believed that the mere presence of the words cast into stone would put an end to evil deeds. Likewise, when Hammurabi's code was scribbled out, he did not think for even a second that the act of drafting its many prohibitions would unilaterally stop bad acts from being done. And, despite a plethora of statutes and case law which make it unlawful for people to drive drunk, for employers to neglect to provide their workers with safety equipment, or for automakers to sell cars with defective airbags, for some reason our firm never seems to run out of cases.

But why is that? Does this mean that the law doesn't work?!?!

Well, of course the law works. It's just that it works the way the law actually works, not in the fantastical way that Mark Kelly thinks it should.

You see, we can think of any prohibitive law as taking a two-pronged approach to solving a problem.

  • The first is to dissuade those who can be dissuaded.
  • The second is to provide a remedy/punishment when the first approach fails.

The key takeaway here is that it's universally understood, though rarely spoken of in these terms, that every law ever written was drafted under the assumption that the law will encourage some portion of people to refrain from doing the forbidden thing, yet others will be undeterred and must therefore be dealt with when they invariably break the law.

This leads us back to my earlier statements that no lawmaker believes that writing something down in a book of laws creates a talisman that will ward off all potential bad actors. After all, if they truly believed that the act of prohibiting something would stop the bad conduct in its tracks, there would be no punitive measures, nor remedies for victims, baked into any law. Laws would simply read "thou shalt not" with no implied or explicit "or else" tacked on to the end. Consequently, there'd be no courts, no police, no lawyers, no Child Protective Services, and no prisons. We'd just ban something and it would go away forever.

Clearly, that's not the case.

Therefore, in the real world, no discussion of the law can be as black and white as "Do you or don't you believe that laws work?" The only sensible question is "To what extent will a given law work?" And, more germane to our conversation, a better way to phrase that question would be, "As a preventive tool, who will a law work on and who won't it work on?"

To Understand Why Not Everyone is Persuaded by a Prohibition, You Have to Think of The Law in Economic Terms

The most basic concept underpinning the science of economics has nothing at all to do with money. Rather, it is the notion that human nature compels us all to act in our own self-interest and to choose from among many choices the option which we believe (rightly or wrongly) will best serve our self-interest.

To be clear, I don't use the term "self-interest" as a pejorative; not in the slightest. One's deepest held desire could just as easily be to serve the public good, to honor God, or to save the rainforest, as it could be to gain wealth at all costs, eat the most kittens, kill the most infidels, or punch the most disabled people. The point is, whatever form one's self-interest may take, good, bad, or ugly, humans choose the option they feel will pay them most dearly (again, pay them in terms of whatever they value, not necessarily in terms of money).

This is the very essence of economic decision making.

For people who are interested in maintaining their freedom, keeping their assets from being confiscated in a civil suit, or who simply operate under some imperative to be good, the mere presence of a law forbidding certain conduct is all the encouragement they need to avoid engaging in said conduct. Or, to phrase it a different way, they have an array of options to choose from, but choosing to follow the law serves their self-interest better than any supposed upside that they may receive by breaking the law. For people like this, Mark Kelly's vision of the law as a means of prevention holds true.

Consider a doting mother who wants nothing more than to be in her kids' lives. Surely she knows that robbing a liquor store can benefit her financially. Yet since she also knows that getting caught means being taken away from her kids, so it pays her to follow the law. But to be crystal clear, she's not necessarily choosing to follow the law out of reverence for it. She doesn't fall to her knees overcome by the awesome majesty of the legislation itself. No, she is motivated only inasmuch as following the law plays a role in serving her true interest of being there for her kids. If tomorrow a law were passed which compels all single mothers to find full-time employment, she might be inclined to break that law precisely because it makes it harder for her to serve her true motive. Again, she's not in love with following the law for following-the-law's sake. Rather, she, as a being driven by economic decision making, will choose to follow the law whenever it is aligned with her self-interest.

In my judgment, most Americans are categorically similar to this doting mother. They find that being law-abiding persons pays them more than being law breakers. That's one of the rarely spoken of yet beautiful aspects of American life and why America works so well: there are enough opportunities to serve one's self-interest without having to resort to evil or unlawful means. So long as the law remains sensible and tied to the conventional morals shared by most Americans, this will continue to be the case.

But what about people who operate outside of this norm? That is to say, people who couldn't care less about things like civic duty or being virtuous. Or what about people who sort of value their freedom to some extent, yet what they desire even more is cold, hard cash? Just like the aforementioned doting mother, a member of this group certainly understands that robbing a liquor store is illegal. Yet they may choose that option anyway, not because they're ignorant or foolhardy, rather because the interest they value most happens to be different than yours or mine. Will a law that is persuasive to you or me work on someone like that? Clearly not.

And therein lies the rub with the idea of restrictive gun legislation as a preventive tool. Without a doubt, sometimes normal people with steady jobs shoot the guy who cuts them off in traffic. But the overwhelming majority of gun violence is committed by a small demographic cross section consisting of people who are desperate (and have fewer options to pursue legitimate means to serve their self-interests) or by those who have more malevolent self-interests than you or I.

Consider "Steve," an uneducated nobody from Jerkwater Nowheresville, who lives in a shack and is kind of hard to get along with, since he spends all day reading New World Order conspiracy theory websites and won't ever stop talking about it. Steve has far fewer opportunities than you or I. So, in his state of desperation, selling meth, robbing a gas station, or burglary of a habitation all seem like perfectly viable options. The self-interest he endeavors to feed is the base desire to possess what he hasn't earned (or to make the world pay for his misfortune or whatever). The same can be said for an abusive husband who decides, "If I can't have her, no one can," and then kills his wife. To people like these, being a typical, law-abiding citizen is not a driving motivation. Therefore, a law that says "don't do X" has little to no effect on them as a preventive tool.

Considering that the majority of gun violence is perpetrated by this class of individual --people involved in the drug trade or a street gang; people for whom violent crime presents something of a career path; people who are some variety of dispossessed outsiders who do not share the values most Americans do; people who feel that their situation is desperate or hopeless; or people who are otherwise disenfranchised from the typical American experience-- is it any wonder that Republicans in Congress are skeptical that additional gun laws will persuade the typical perpetrator of gun violence from committing gun violence?

I would contend that there is nothing at all "Republican" about believing that the law is an imperfect preventive tool. Is it not a mainstream position of contemporary American politics that criminalizing abortions won't actually dissuade people from having abortions, it'll just drive the practice underground or into "back alleys"? If that is the position of our friends on the American political left, why is it such a sin when our friends on the American political right apply the same reasoning to some other issue, like gun laws?

To say that Congressional Republicans don't believe that the law works is a patently absurd statement. In reality, they rightly understand that the law has two roles: discourage those who can be discouraged and then provide a punishment or remedy to deal with all the rest.

I can't help but feel that someone as intelligent as Mark Kelly already knows this and understands fully that new gun legislation won't stop the overwhelming majority of gun violence any better than all the other hundreds of gun laws already on the books.

But here's the really perverse part. Given that he and his political allies have painted themselves into an ideological corner, how could Mr. Kelly possibly take any position other than "more laws will prevent gun crime"? We already have laws which make committing an act of gun violence illegal, as well as laws which make the mere possession of a gun by the majority of people who commit gun violence illegal. But criminals obviously are evidently undeterred by such laws. Therefore, all the Mark Kellys of the world either have to admit that there are some types of misconduct that just flat-out can't be regulated away or they have to double down and say that the reason the bad people are doing the already illegal things is because we lack the temerity to make those things even "more illegaler."

This logical inconsistency is what happens when you attribute to the law properties that it can't possibly possess or when you judge laws by their intentions rather than their actual results.

Closing Thoughts

I believe that the marriage of the law and representative government is one of the greatest achievements of mankind. It is right for Mark Kelly to feel that legislators wield tremendous power, but not to the extent wherein the statehouse is held up as some sort of a church that unwashed apostates should remove themselves from if they are not willing to recite Kelly's version of the articles of faith.

Additionally, aside from the fallacious position that Mr. Kelly has taken, he seems to be overlooking another crucial fact. Even if Congressional Republicans were to resign as he suggests, who does he suppose would replace them? After all, they are doing little more than carrying out the will of their constituents. And those constituents (who take their gun rights very seriously and don't wish to see them restricted because of the misconduct of people they have no association with) have just as much right as Mark Kelly to have their voice heard. Denigrating these people's elected representatives probably isn't the best approach to win hearts and minds for a cause that is, if nothing else, a controversial topic in their neck of the woods.

But if it's now fair game to proclaim someone unworthy of participating in the legislative process, allow me to offer my two cents. If you want to be a lobbyist yet you can't comprehend human nature and its relationship to pubic policy, maybe just stick to your day job, spaceman.