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"walls of the city" logo conceptualized by Oleg Volk and executed by Linoge. Logo is © "walls of the city".

a result of careful conditioning

On occasion, you will see the words malum prohibitum and malum in se crop up at this site, and, like so many other Latin phrases that continue to linger in our lexicon waiting for someone to feel the urge to sound educated, it may not be immediately obvious what they mean. I think this situation sums them up nicely.

In short, malum prohibitum simply means that something is bad because it is prohibited, or, to phrase it in a more topical context, it is bad because it is illegal. This can range from anything to having a shotgun barrel that is 17 inches long without paying a $200 tax stamp and subjecting yourself to a comprehensive background check, to, apparently, letting some balloons go at a beach.

On the other hand malum in se is something that is bad in and of itself. Murder, rape, assault, arson, carjacking, robbery, burglary, and countless other crimes all fall under this heading.

The problem is when the former starts outnumbering the latter, and, worse, carrying stiffer penalties:

30 years ago, you’d just assume that anything that wasn’t obviously contrary to morality was legal. That is, you’d have a built-in default setting of assuming liberty. And that assumption of liberty would then propel you to take actions.

But now, you have to assume that many things that aren’t contrary to morality are illegal anyway. And so you now have — quel coincidence! — a built-in default setting of assuming prohibition. And that assumption that many of the things you’d like to do are illegal and criminal thereby reduces your desire to take any action at all.

Can you name all of the crimes in your state that are felonies? Can you name all of the crimes in your state that are misdemeanors? Have you ever uttered the words, "Is that legal?" without actually being able to intuitively guess whether it is or not?

Welcome to the club. And the problem.

californialargecapacitymagazineWe literally live in a society wherein it is legally permissible to imprison someone up to a year for daring to possess a metal box with a spring in it that is larger than some pencil-pushing bureaucrat feels comfortable with (citation to the right, since CA’s online law system does not appear to allow direct linking). And lest you think firearms are the only realm wherein private citizens operate at their own risk, "stealing" pine straw can land you in jail for more than a year.

America may still be called the "Land of the Free", but if we continue to allow small-minded autocrats the power to ban things simply because they do not like them, we should likewise stop lying to ourselves about our freedoms. Me, I am having a hard time thinking of a malum prohibitum law I could bring myself to support in good faith.

(Found by way of Sharp as a Marble.)

15 comments to a result of careful conditioning

  • Every time I see one of those signs saying “Don’t buy tobacco products for people under 18! It’s not just wrong, it’s illegal!” I think, “Well, it’s illegal…”

  • But… but… but… your betters tell you it is wrong, so it must be!

  • Archer

    I seem to remember someone making a list of real malum in se crimes which carry a lighter sentence/fine than those from violating New York’s new gun laws – specifically, possessing an empty “large capacity” magazine; truly a victim-less crime if there is one. The list includes varying degrees of assault, robbery, burglary, arson, vandalism, sexual assault, and child pornography crimes. Updated and more concise article here.

    Also note in the law this little tidbit: “A person is guilty of criminal possession of a weapon in the third degree when: … 5 (i) Such person possesses three or more firearms; ….” IANAL, but the way I’m reading it (and the way a DA might read it), if you’re headed to the range with two rifles to sight in and a carry pistol to practice with, you’re guilty of the Class D Violent felony, and the penalty will be worse than “Criminally Negligent Homicide” (Class E felony) or “Burglary in the third degree” (Class D felony).

    WTF!? Even “Criminal possession of a firearm” is only a Class E felony!

  • Volfram

    @ Linoge: They aren’t better than me.

    While I can see that mylar is probably not as good for releasing as latex, perhaps we could have given the gentleman a WARNING instead of tossing him in jail on some trumped up garbage charges?

    I hope he remembers who wronged him the next time he’s in a voting booth.

  • David Phillips

    Could we get an different link for the ‘box with a spring'; the document retrieval doesn’t seem to work.

    Many thanks. Great post, great responses, too

  • @ Archer:
    Firearm has a specific definition under NY law (just as it does under federal law). In NY, a “firearm” is a handgun, assault weapon (as defined in NY law), a SBR, or an SBS.

    The NY code also exempts those licensed under it from criminal possession of a firearm charges (all the way at the end of 400 at subsection 17). Because you have to be licensed in NY to even own a handgun, this makes your theorized prosecution moot.

    Except for people who move to NY and don’t know their insane laws, of course. They’re just out of luck.

  • @ Archer: I remember that list, or at least a list like that one, but a lot of people seemed to disagree about the interpretation of the new, idiotic law, and how the punishments would be meted out. Has that been settled of late?

    @ Volfram: I really need to invest in a sarcasm font.

    And, yeah, a friendly talking-to about the hazards of releasing non-biodegradable substances into the environment would be warranted. Felony charges? Good Lord.

    @ David Phillips: Apparently Kalifornistan sucks. But you knew that. Their old system is gone, and their new system does not allow direct linkage; post updated with a screencap.

  • David Phillips

    Oh, for heaven’s sake. A magazine. Of course. Furrfu. Please consider dope slap to have been administered.

    I was suffering from lack of sleep. Yeah. That’s it. That’s my story, and I’m sticking to it.

  • Volfram

    @ Linoge: I think a sarcasm font would be incredibly useful for internet communication.

  • @ David Phillips: I was wondering where the confusion lay… ;)

    @ Volfram: True, but the trick would be standardizing it / getting it accepted across the board. Some folks on the Twitters have suggested using ^ as a sarcasm tag – not like it is really being used for anything else any more.

  • Lance H

    Defending your home, yourself, or a family member with your meat hooks can get you life in prison. Here in the occupied state of California, my brother was arrested for defending his home from a burglar because he beat him severely. Time goes by and he is arrested for beating two robbers attempting to mug him. He has been informed that if he thrashes another scumbag that he will be charged under the three strikes rule and will go away for life. That is how this state works. These criminals are considered disenfranchised and misguided youths while my brother is considered a dangerous criminal. Dangerous yes, criminal no. He trained Chuck Liddel when he was a snot nosed kid peeking into the dojo.

    We are fourth generation California residents that farmed this land since the early 1800’s and now are the enemy because we choose to defend ourselves from scum.

    Sadly, my brother’s wife was carjacked and paralyzed by the beating. The two thugs got four years each in a plea bargain in San Bernardino. She died from complications after they were sentenced and the DA will not try them for murder. You think life sucks? It takes strong daily faith to keep from doing something I will regret, knowing I will not let them win.

  • [...] Walls of the City  reminds us (by way of Sharp As A Marble) that while we continue to speak of ourselves as the Land of the Free, we certainly are no longer: [...]

  • And this is, indeed, part of the problem. We criminalize self-defense, and then allow violent felons out on the streets with a few short years ‘served’… and then we wonder why our violent crime rates in certain areas are spiking up while nation-wide they are dropping on average.

    Wierd how that works.

  • Ted N

    @ Linoge:

    I’ve got a feeling that for some, the needle is leaning closer to “feature” rather than “bug”. Horrid people.

  • Windy Wilson

    I can’t recall exactly the last time someone in Commifornia said the words “It’s a free country”, except I know I hadn’t graduated from College yet, and that was when Carter was President.