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Article Excerpt
I. Introduction
Gun control supporters often assume that the acceptability of gun control laws turns on whether they increase or decrease crime rates. The notion that such laws might violate rights, independently of whether they decrease crime rates, is rarely entertained. Nor are the interests of gun owners in keeping and using guns typically given great weight. Thus, a colleague who teaches about the issue once remarked to me that from the standpoint of rights, as opposed to utilitarian considerations, there wasn't much to say. The only right that might be at stake, he said, was "a trivial right--'the right to own a gun'." Similarly, Nicholas Dixon has characterized his own proposed ban on all handguns as "a minor restriction," and the interests of gun owners in retaining their weapons as "trivial" compared to the dangers of guns. (1)
I believe these attitudes are misguided. I contend that individuals have a prima facie right to own firearms, that this right is weighty and protects important interests, and that it is not overridden by utilitarian considerations. In support of the last point, I shall argue that the harms of private gun ownership are probably less than the benefits, and that in any case, these harms would have to be many times greater than the benefits in order for the right to own a gun to be overridden.
2. Preliminary Remarks about Rights
2.1. Assumptions about the Nature of Rights
I begin with some general remarks about the moral framework that I presuppose. I assume that individuals have at least some moral rights that are logically prior to the laws enacted by the state, and that these rights place restrictions on what sort of laws ought to be made. I assume that we may appeal to intuitions to identify some of these rights. An example is the right to be free from physical violence: intuitively, it is, ceteris paribus, wrong for people to do violence to one another, and this limits what sort of laws may, morally, be made--it explains, for instance, why the state ought not to pass a law according to which a randomly chosen person in each district is flogged each week.
I further assume that we normally have a right to do as we wish unless there is a reason why we should not be allowed to do so--and hence that someone who denies our right to act in a particular way has the dialectical burden to provide reasons against the existence of the right in question. In contrast, one who asserts a right need only respond to these alleged reasons. (2)
What sort of reasons would show that we have no right to engage in a particular activity? Consider three relevant possibilities:
(i) Plausibly, we lack even a prima facie right to engage in activities that harm others, treat others as mere means, or use others without their consent. Thus, I have no claim at all (as opposed to having a claim that is outweighed by competing claims) to be allowed to beat up or rob other people.
(ii) Perhaps we lack a prima facie right to engage in activities that, even unintentionally, impose high risks on others, even if those risks do not eventuate. If my favorite form of recreation involves shooting my gun off in random directions in the neighborhood, even if I am not trying to hit anyone, my would-be right to entertain myself is at least overridden, but perhaps wholly erased, because of the danger to others.
(iii) Perhaps we lack a prima facie right to engage in activities that reasonably appear to evince an intention to harm or impose unacceptable risks on others. For example, I may not run towards you brandishing a sword, even if I do not in fact intend to hurt you. The principle also explains why we punish people for merely attempting or conspiring to commit crimes.
There may be other sorts of reasons for excepting an activity from the presumption in favor of liberty. The above list, however, seems to exhaust the reasons that might be relevant to the existence of a right to own a gun. I assume, in particular, that the following sort of consideration would not suffice to reject a prima facie right to do A: that a modest statistical correlation exists between doing A and engaging in other, wrongful activities. (3) Thus, suppose that people who read the Communist Manifesto are slightly more likely than the average person to attempt the violent overthrow of the government. (This might be because such people are more likely to already have designs for overthrowing the government, and/or because the reading of the book occasionally causes people to acquire such intentions.) I take it that this would not show that there is no prima facie right to read the Communist Manifesto--though perhaps the situation would be otherwise if the reading of the Manifesto had a very strong tendency to cause revolutionary efforts, or if the occurrence of this effect did not depend on further free choices on the part of the reader.
2.2. What Sort of Right Is the Right to Own a Gun?
First, I distinguish between fundamental and derivative rights. A right is derivative when it derives at least some of its weight from its relationship to another, independent right. A right is fundamental when it has some force that is independent of other rights. On these definitions, it is possible for a right to be both fundamental and derivative. Derivative rights are usually related to fundamental rights as means to the protection or enforcement of the latter, though this need not be the only way in which a right may be derivative. I claim that the right to own a gun is both fundamental and derivative; however, it is in its derivative aspect--as derived from the right of self-defense--that it is most important.
Second, I distinguish between absolute and prima facie rights. An absolute right is one with overriding importance, such that no considerations can justify violating it. A prima facie right is one that must be given some weight in moral deliberation but that can be overridden by sufficiently important countervailing considerations. (4) Thus, if it would be permissible to steal for sufficiently important reasons--say, to save someone's life--then property rights are not absolute but at most prima facie. It is doubtful whether any rights are absolute. At any rate, I do not propose any absolute rights; I argue only that there is a strong prima facie right to own a gun.
It is important to distinguish cases in which a prima facie right is overridden from cases in which we have exceptions to a generalization about what one has a right to. Speaking metaphorically, the difference is between removing something from the moral scale, and placing something heavier on the opposite side of the scale. To illustrate the distinction: assume that it is morally permissible to kill an aggressor in self defense. This might be permissible in virtue of an exception to the right to life (the aggressor temporarily loses his right not to be killed by his intended victim), rather than because the aggressor's right to life is overridden. This is plausible since the permissibility of self-defense killing does not depend upon the defender's having either a stronger right to life or a more valuable life than the aggressor. (5) In contrast, suppose it is permissible to kill an innocent person to save the lives of 1000 others. Plausibly, this is a case of the overriding of the first individual's right to life, rather than an exception to his right to life. In the second case but not the first, we would still say that the person killed had his rights violated.
Thus, the sort of reasons discussed in [section] 2.1 for refusing to recognize a prima facie right to engage in an activity do not exhaust the possible reasons for not allowing a given activity. If none of the former sort of reasons applies to a given activity, then there is a prima facie right to engage in the activity, but that right could still be overridden by countervailing reasons.
2.3. Weighing Rights
The more weight a right has, the more serious its violation is and the more difficult it is to override the right. I assume three broad principles about the weighing of rights.
First: Ceteris paribus, the weight of a fundamental right increases with the importance of the right to an individual's plans for his own life or other purposes. This is not to say that every action that interferes with an individual's aims is a rights violation, but only that if an action violates rights, it does so more seriously as it interferes more with the victim's aims.
On some theories of self-interest, one's purposes may diverge from one's interests. (6) In such a case, I maintain that the weight of a right should be at least partly determined by the rights-bearer's aims, and not merely by the rights-bearer's actual interests. (7) Consider an example to motivate this view: imagine a proposed law forbidding all homosexual relationships. Suppose its proponents argue that the law is at most a trivial rights violation, because homosexual relationships are morally bad, so homosexuals are mistaken in believing that they have a positive interest in such relationships. (8) Without entering into a debate concerning the value of homosexuality, we can say that intuitively, the proponents' argument is invalid: the law would seem to be a major restriction of the civil liberties of homosexuals, regardless of whether homosexuality is healthy or virtuous. (9) This is best explained by the hypothesis that rights function to guard individuals' autonomy, that is, their ability to pursue their plans for their own lives, rather than to protect their interests as assessed from a third-person point of view.
Second: In the case of a derivative right, the seriousness of its violation is proportional to the importance of the other right that it subserves. Thus, a derivative right that functions to protect the right to life is more important, other things being equal, than one that protects the right to property.
Third: The seriousness of a violation of a derivative right also depends upon how important the derivative right is to the other right that it subserves. For example, censorship of books criticizing the government would be a more serious violation of free speech than censorship of pornographic material, because the ability to publish political criticism is more important to protecting other rights than the ability to publish pornography.
A serious rights violation, then, is not the same thing as a violation of an important right. One might violate an important right but in a trivial way, creating an only moderately serious rights violation. The most serious rights violations will be those that are major violations of important rights.
3. Is There a Prima Facie Right to Own a Gun?
Given the presumption in favor of liberty, there is at least a prima facie fight to own a gun, unless there are positive grounds of the sort discussed in [section] 2.1 for denying such a right. Are there such grounds?
(i) Begin with the principle that one lacks a right to do things that harm others, treat others as mere means, or use others without their consent. It is difficult to see how owning a gun could itself be said to do any of those things, even though owning a gun makes it easier for one to do those things if one chooses to. But we do not normally prohibit activities that merely make it easier for one to perform a wrong but require a separate...
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