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.
We 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.)