Gun Control and the Limits of Halakhah

By Shlomo M. Brody
Wednesday, January 9, 2013

Since the shooting in Connecticut, Jews have played a prominent role in the push for more gun control, citing Jewish authority to support their stance.  There are also Jews on the other side of the debate, and some in between; they, too, cite Jewish sources.  Can Jewish law truly provide guidance in preventing further massacres in America? 

Let us first establish the principles that guide Jewish law on violence and self-defense.  The Torah states, “Take utmost care and watch yourself scrupulously,” (Deuteronomy 4:9) and commands a homeowner to build a railing around his roof “lest you bring bloodguilt on your house if anyone should fall from it.” (22:8)  From these verses, the Sages derived the rules that a person should not keep wild dogs, shoddy ladders, or other dangerous objects in his home lest they cause bloodshed (Bava Kamma 15b) and should not sell weapons to anyone who he fears will use them inappropriately (Avodah Zarah 15b). Thus, if a careless gun salesman unintentionally contributes to illicit violence, he is guilty of “placing a stumbling block before the blind.” (Choshen Mishpat 427:7)  While it may be true that “guns don't kill; people do,” the responsible “people” under Jewish law are not only individuals who handle weapons badly but also individuals who provide them with those weapons. 

Thus, after John Hinkley shot President Reagan with a handgun in 1982, Rabbi J. David Bleich wrote a powerful open letter to the Jewish pawnshop owner who unknowingly sold Hinkley that handgun: 

Jews ought to be in the vanguard of those seeking to impress upon our legislators that handguns are indeed “stumbling blocks” which must not fall into the hands of the “blind”. . . .  [I]t is precisely because the “morally blind” criminals are disposed to crime that Judaism teaches that it is forbidden to provide them with the tools of their trade.

Yet only indiscriminate sales of weapons are prohibited; sales to responsible people seeking self-protection remain permissible. Indeed, the Torah not only allows people to kill intruders in their homes but actually mandates that potential victims or even bystanders kill a person seeking to commit murder (rodef): “Do not stand by the bloodshed of your fellow.” (Leviticus 19:16)  The question facing society is how to regulate weapons so as to balance these rules most effectively and to maximize the single value that underlies them: keeping people safe. 

Jewish sources have addressed similar issues of balance in two different contexts: “cities of refuge” and fierce dogs.  As for the first, the Torah mandates the establishment of cities of refuge—communities to which individuals who have killed, but are not fully culpable of murder, may flee for legal protection from a “blood avenger,” an enraged member of the victim's family.  What rules should govern such cities, the Talmud asks, given the backgrounds of some of the inhabitants and the standing threats to their lives?  One might argue that the values described above dictate strict gun control laws to prevent any sale of weapons or hunting devices that might fall into the hands of a blood avenger or an unsavory refugee.  This was precisely the position of the Sage Rabbi Nehemiah.  

Yet the majority of Sages disagreed.  Instead, they argued that weapons sales should be allowed—but no traps should be laid or nooses knotted, “so that the blood avenger should not have a path there.”  This statement is cryptic; but in the 19th century, Rabbi Yitzhak Chajes offered the most likely explanation: with snares readily available, one can make a death seem accidental (Siah Yitzhak, Makot).  Without them, a blood avenger must try to kill through more open means—and is more likely to get caught. 

Still, why not ban weapons sales anyway?  Though the Talmud and Chajes don’t explain, it appears the Sages believed that a ban would not prevent a blood avenger from acquiring weapons—but would prevent law-abiding residents from buying weapons for their own protection in an area prone to violence. 

In this debate, we see two reasonable positions producing very different policies, even though the Sages shared the same goal: preventing violence.  Thus, reasonable people may disagree about the appropriate policy for a specific context. 

Cities of refuge ceased to exist after Biblical times.  Thus, this particular debate did not much engage later decisors and do not provide much evidence of how particular weapons control policies actually worked.  Fierce dogs, however, still exist.  The talmudic Sages did not like dogs, especially dogs that attacked strangers.  The aversion might have stemmed partly from the association of dogs with Egyptian paganism but mainly reflected the Sages’ belief that dogs were dangerous (Bava Kamma 15b): even their barking and growling could terrorize people to the point of causing miscarriages.  They also feared that dogs might deter neighborly intermingling or keep poor people from seeking assistance (Maharsha, Shabbat 63a).  Thus, they mandated that a person who owns a fierce dog must keep it leashed (Bava Kamma 79b).

However, they provided that in dangerous areas like border cities, one can unleash a dog at night, when most people have gone to sleep (Bava Kamma 83a).  Scholars have debated the scope of this exception.  In 13th-century Germany, some asserted that since Jews lived among hostile neighbors, any Jew could own a dog for protection—and keep it unchained day and night (Shiltei Giborim).  In 16th-century Poland, Rabbi Moshe Isserles agreed, noting that this was the contemporary practice among Jews—though Isserles added that if the dog might attack innocents, it had to be kept chained. 

But Isserles’ cousin and countryman, Rabbi Shlomo Luria, condemned the exception altogether, arguing that the outside threat was not so great and the potential for accidents from keeping a dog around children and others was much greater.  In the next century, Rabbi Meir Eisenstadt argued that dogs should not be allowed generally but only when needed to protect large groups of people in specific areas (Shu"t Panim Meirot 2:133).  In the 18th century, Rabbi Yaakov Emden proposed a different compromise: one dog per home—or, since some properties might require greater protection, “One may not possess any more than absolutely necessary.”  Applying these principles to outlying towns in contemporary Israel, Rabbi Pinchas Zivchi ruled as follows: If one fears burglary, the dog should be visibly chained during the day, with a warning sign posted; the dog can be released at night, but only within a closed courtyard.  If one fears terrorist attacks, the dog can be kept loose at all times—but only if safeguards can be taken to prevent it from harming innocent bystanders.

Substitute handguns for fierce dogs, and you get something like the following debate:

“Guns are dangerous; no private citizen should own one.” (Bava Kamma15b)  “No, they are necessary for protection at night—but only in violent areas.” (Bava Kamma 83a)  “Today, every area is violent; so, we need constant protection.” (Shiltei Giborim)  “This makes sense and agrees with current practice, but people should properly secure the guns in their homes.” (Isserles)  “That's a terrible idea: guns in the house are more likely to harm innocents than to protect against attackers.” (Luria)  “Let's compromise: let citizens carry weapons, but only in significant locations of concern, like schools.” (Eisenstadt)  “Or limit people to one gun, or the absolute minimum necessary.” (Emden)  “No, the problem is more complex; we need differing rules for different types of people, guns, places, and circumstances.” (Zivchi)

Sound familiar?

Admittedly, guns are not dogs, because guns are controlled by rational beings who can use them cautiously or recklessly.  Nonetheless, the diversity of rabbinic opinions on the proper regulation of dangerous but protective canines shows that reasonable people, even those sharing Jewish values regarding violence and self-defense, can disagree about gun control.  Another factor complicates the situation still more: the positions of the Sages and scholars were not formed in a vacuum but related to their particular circumstances.   How should our principles apply in the United States—or Australia, Israel, or any other country?  America, for instance, is no longer building a new society.  Instead, its society is marked by deep fear of violent attacks by gangs or deranged individuals; 300 million firearms in the hands of private citizens, legally or otherwise; a strong culture and history allowing the use of hunting and other recreational weapons; and a constitutional right to bear arms—which, though its meaning is contested, cannot be ignored.  And that’s just for starters.  Each of these factors could reasonably change, in a liberal or conservative direction, the way people might think about gun policy in America, even if they might have taken an alternative approach under different circumstances.

Can halakhah provide authoritative solutions to the American dilemma?  No.  Still, we might heed the wise statement once made by the late Rabbi Haim David Halevi, Chief Rabbi of Tel-Aviv, about foreign policy: even when halakhah cannot provide the answers, it still may serve as a guiding light, promoting the critical values that direct policy makers toward a better resolution.  The same is true for gun control.

 Rabbi Shlomo M. Brody teaches at Yeshivat Hakotel, writes a column for the Jerusalem Post, and directs the Tikvah Israel Seminars for post-high school students.

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