Natural Rights, Civil Rights, and Guns

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To see why it is proper for a government to regulate weapons and to understand the principles by which it should, we need to go back to some fundamental principles of moral philosophy, political philosophy, different kinds of rights, and the nature of government.

And we will need to deal with some counter-intuitive principles.

You have a natural right to defend yourself against an attack, using unlimited force if necessary. But it still might rightly be illegal for you to own or carry a gun.

Weapons can be private property, but a government, by its very nature, has a legal monopoly on the use of force among its citizens. That means it may properly regulate the buying and selling of weapons in ways it may not properly regulate trade in other private property.

Although normally a government is supposed to protect its citizens’ natural individual human rights, there is an exception. It is not bound to protect the right to violently overthrow that government itself. That is, it might be moral for you to violently overthrow your government but rightly illegal for you to do so or even prepare to.

Let’s sort all this out, starting with an important distinction.

Immoral vs. Illegal

Not everything immoral is illegal. And not everything illegal is immoral.

It is immoral to lie to your spouse about where you were last night, but it’s not illegal. It’s immoral to cheat on the mid-term exam, but it’s not illegal.

Plenty of cop movies come down to a scene where the cop has to choose whether to follow the law or break it and stop the bad guy. The audience is being asked: Is illegal always immoral?

A few hundred years ago, there was a big debate about this relationship. The question was: Are there moral principles that stand prior to law (John Locke’s position) or are there no right and wrong until the government defines them (Thomas Hobbes’s position)? In Locke’s philosophy, people naturally have rights and the government is supposed to design institutional machinery to protect those rights. In Hobbes’, people have only the rights a government grants. In Locke’s philosophy, if the institutional machinery—either systematically or in an isolated instance—violates natural rights, citizens retain the moral right to act against that machinery. They may still go to jail, but they acted morally.

Civil rights—as distinct from natural rights—are that institutional machinery. Good governments grant civil rights—the right to vote if you are over 18 and have not been convicted of a felony, the right to be released from prison if not formally charged within so many hours, and so on—as ways to protect natural rights.

Natural Rights vs. Civil Rights

Natural individual human rights are timeless. Whatever these rights are, and whether anyone recognized, honored, protected, or violated them, these rights are the same today as they were in ancient Egypt, medieval Europe, and slave-holding America. They were, are, and always will be the same.

That famous phrase in the Declaration of Independence is about natural rights: “All men are endowed by their Creator with certain inalienable rights, . . . among these are life, liberty, and the pursuit of happiness.” That is in the Declaration, not in the Constitution. When politicians swear to uphold the Constitution, they are not swearing to protect your right to life, liberty, or pursuit of any happiness. I wish it were otherwise, but a promise to protect those natural human rights is not a job requirement for politicians in America. (That’s why slavery was not unconstitutional. The Declaration does not have the legal authority that the Constitution does.)

The task of the Constitution, including the amendments, is mostly to define civil rights. Citizens over a certain age have a right to vote for a legislative representative every two years, for a senator every six years. These officials have the right to make laws, judges do not. Citizens have the right to appeal to their representatives for a redress of grievances. If a president dies in office, the vice-president has the right to become president. Someone taken by the police has the right to be released if not soon charged with a crime; if charged, the accused has a right to trial by jury.

Natural rights derive from a person’s nature as a human being. (I don’t share some Objectivists’ aversion to the term “natural rights.” I think we can use it without sanctioning the misuse.) Civil rights, on the other hand, are specific to particular times, cultures, and technologies. What is a proper civil right today might not have been proper in medieval Europe and might not be proper in future Martian colonies. Maybe someday we won’t need trials by jury to protect a citizen’s right to life. Maybe someday we will invent a better mechanism, one more reliable and more efficient, one that doesn’t have the complex trade-offs that jury trials have. The civil right to a trial by jury would then get replaced, and the timeless natural human right not to get locked up for no reason at all would be protected by some other civil right.

One Natural Right Not Protected by Civil Rights

In well-designed governments, civil rights are there to protect natural rights. If the jury system fails to protect natural human rights, for example, it should be altered. If the term of legislators is turning out to threaten citizens’ natural rights, the term should be changed.

A whole science of private property, involving titles, liens, collateral, bequests, probate, encumbrances, estates, tenancy, licenses, surveys, boundaries, deeds, easements, water rights, use rights, air rights, and so on, has been invented to protect your natural right to keep the fruits of your labor. (See “Life, Liberty, Pursuit of Happiness, but Not Property.”)

There is one natural right that a government is not obligated to protect: The natural right to violently overthrow the government itself. Yes, you have a natural moral right to violently overthrow a sufficiently corrupt government. But you won’t have a legal right to do so. You won’t get far—and shouldn’t get far—saying to the cop, “Yes, I plan to assassinate the senator, but I will just be exercising my natural right to protect myself from tyranny. So you have an obligation to protect me as I buy the gun, drive to the senator’s house, and shoot my way past the guards.” The cops might have a moral obligation to help you but not a legal obligation.

You might have a moral right, but—logically—you can’t have a legal right to undermine the very legal authority that grants legal rights. And what gives a political government its legal authority is simply its ability to en-force its laws.

The Legal Monopoly on the Use of Force

“A government holds a legal monopoly on the use of physical force.” When Ayn Rand wrote this, she used the italics, and followed that with this: “Let me repeat it: a government holds a legal monopoly on the use of physical force.” She wasn’t the first or last to say this, but she was correct to stress it.

There is nothing particularly profound or distinctly Objectivist here. Whether a government is corrupt or moral, whether it claims jurisdiction over everyone in a territory or just those who have sworn allegiance to it, what makes a political government a political government is that it enforces laws. Government is a use of force.

As such, a political government must act to maintain the ultimate say over how force is to be used among its citizens. To the extent something is a tool of force for use by some citizens against others—to the extent something is an inter-personal weapon—a government may legitimately regulate it.

Justification for Gun Rights

You may have a moral natural right to build up an arsenal for the coming revolution. But as long as the government is the government, it has an obligation to keep you from doing so. It need grant no civil rights whose only task is to protect that arsenal of yours.

What criteria should a government use to regulate weapons? The same one it should use for any law or civil right: What will protect the individual natural human rights of its citizens.

If the government could ensure that it alone can protect all its citizens from any violation of natural rights, then it could legitimately outlaw all weapons.

But it cannot, and so it does not.

In the United States, for example, the government grants you the civil right to have and use some weapons to thwart an assailant. But how should the government draw the line? Which weapons, for example? Used under what conditions?

The Collectivist Calculus

One candidate would be some calculation of social utility. But that’s just as immoral when applied to guns as when applied to anything else. Calculating what is good for society as a whole instead of for the individuals in it is a bad way to justify any law or civil right.

There is no doubt that when guns are available, they get used to maim and kill innocent people. But there is also no doubt that when guns are available, they get used to protect and save innocent people. So, some say, we just need to run the calculation, compare number saved to number killed, with and without guns, and regulate guns in whatever way saves the most lives.

The calculation, of course, is notoriously difficult to run. Determining whether guns were a cause can be impossible. Had the deranged criminal not had access to a gun, wouldn’t he or she simply have used the gas pedal of a speeding car, or a pressure-cooker bomb, or a can of gasoline? Without a gun, can we know that someone would not have committed suicide (the main fatal use of legal guns)? And, of course, counting lives saved is necessarily hypothetical. We can count the dead students. How do we count the students not killed when an armed teacher holds a shooter at bay? And how should we count the deaths by guns that are already illegal to own and carry? As for or against more controls? And how useful are statistics anyway, when the ones for, say, high-school shootings, rely on such statistically rare events? Would the death of three innocent suburban kids in a rare high-school shooting count more than the three deaths in a regular weekend of gang warfare in Chicago? Count them less? Moreover, do people really care about the hard facts when we have television news drama, emotional photos, and innocent children?

I now believe that the most objective analyses show that, net, lives are saved and crimes are lower when defensive handguns are widely available and carried. But whether I’m right or not doesn’t matter here. For this whole collectivist approach is corrupt. If I could save a thousand children by killing you and redistributing your wealth, so what? Would that make it right to kill you? If widespread gun ownership saves 0.85 lives or 1.35 lives per life lost, so what? We know absolutely nothing about the morality of gun laws until we identify what, if any, natural individual human rights would be violated or protected by such laws.

If a restriction violates individual citizens’ natural rights—not civil rights, for that’s what we are trying to determine—and not the natural right to revolution, because the government isn’t obligated to protect that—if a restriction violates individual citizens’ natural rights, then the restriction would be immoral. Period. Even if  the violation could arguably help the society at large.

The Right of Self-Defense

If there is a legitimate civil right to guns, the timeless, inborn, natural, inalienable right to self-defense is its only possible moral justification.

An ancient Egyptian attacked by a hippopotamus had the moral right to kill the hippo, even if some pharaoh said doing so would be illegal. A woman about to be raped has the right to defend herself—had, has, and always will have—even if some mullah makes that defense in practice impossible. An innocent fellow trapped in a lethal ground-and-pound by a thug working out his anger at the world has a natural inalienable right to fight back with any lethal force he can bring to bear—always has, always will.

Any legitimate government has a charter to devise and implement civil rights that make self-defense legal and practicable. For cases where effective government security forces cannot be right at hand to do the job, denying a person effective tools for self-defense, when he or she is in immediate danger, is a violation of the inalienable natural right of self-defense and is morally wrong, even if violating that right could be said to have some benefit to society as a whole.

What access to arms citizens should be allowed to own and use depends heavily on social and technological conditions.

Objective Control Over Use of Force

Every legal act of self-defense is an act authorized by the government, as holder of that legal monopoly on physical force. The authorization is the granting of a civil right. You have a natural—a moral—right to defend yourself in any way necessary, using unlimited force if necessary. But if you have a civil right to use force, it is because the government has granted you that right.

Rand was also right to say (again, she used the italics), “A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.” These laws include laws that specify when and how a citizen may forcefully defend him- or herself.

Any properly legal exercise of force by one citizen against another is the exercise of a civil right granted by the government.

This does not mean, however, that such grants need be subjective. A proper government grants such rights objectively. The prevailing social and technological conditions objectively necessitate some such grants and objectively prohibit others. What is objective depends on the context.

Is the land sparsely populated, or densely? How much firepower does the government have at its disposal? How quickly can it bring that to bear? Where are the threats? What are the threats? Snakes or criminals? Big snakes or little ones? What firepower do the criminals have? Is there a police force? (There was not when the US Constitution was written.) Are we talking about Afghanistan, Israel, or Chicago?

In rural Alaska where there is no 9-1-1 and more bears than people, it might be wrong for the government to limit citizens’ access to rifles. In a big city, where the police can helicopter in a SWAT team in 4.3 minutes, different gun limits are appropriate. It matters what kinds of weapons common criminals are carrying. If they are all carrying neutron-powered gamma-ray blasters and no other defensive weapon is available, then the government must allow its citizens to carry neutron-powered gamma-ray blasters or find some other way to protect them.

Second Amendment

Unfortunately, gun rights in America rely on the Second Amendment, an amendment designed for a different purpose.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” When Massachusetts, New York, Virginia, etc. were each sovereign and independent states (each “a free State”), each ready, willing, and able to raise “a well regulated Militia” of citizens who would bring their own weapons, and when each state was willing to join the proposed federation only if its own military capability was left unconstrained, the Second Amendment was straightforward.

That is no longer the case. The idea that some states would take military action against others ended with the Civil War.

Is the Second Amendment relevant anymore? Those who think there should be an enumerated constitutional right to keep and bear firearms have nowhere else to turn. That is the only place arms are mentioned and, after all, the apodosis of the sentence seems pretty clear—“the right of the people to keep and bear Arms, shall not be infringed.”

But then there is that pesky protasis. “A well regulated Militia, being necessary to the security of a free State.” We fight over whether the phrase really matters and if so what it could be taken to presume, assume, or imply. (Note to my students: As I’ve said, avoid the inherently ambiguous absolute construction. Especially when writing constitutions.)

In 2008, five Supreme Court justices agreed that a right to bear arms for personal self-defense was somehow contained, implied, presumed, or whatever, in that pesky protasis. Four of the nine judges thought otherwise. And the majority added a big caveat: “Nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions on the commercial sale of arms.” If the Second Amendment protects owning a gun for personal self-defense, it just does not do so in a simple, plain, and obvious way.

All would be much simpler and morally sounder if there were a clause in the Constitution saying in plain and explicit language that Congress shall make no laws denying citizens effective means of self-defense.

Remember, the proper question is not, “Why can the government restrict my access to guns?” The proper question is, “What share of its legal monopoly on the use of force should the government share with its citizens?” The proper answer is, “Whatever is needed for those citizens to protect themselves when the government cannot.” Unfortunately, this principle is not articulated in the Constitution and we are stuck twisting the Second Amendment into service. Things would be better if we didn’t have to.

A Mess

The current situation in the US is a moral mess. The plainest constitutional defense for a right to own and carry a gun is no longer relevant. The main defense hangs by the thread of a 5–4 Supreme Court ruling weakened by its own caveat. The argument by economists and social scientists is morally empty. And the one possibly valid moral argument doesn’t appeal to any principle that is explicitly in the Constitution or that American politicians are sworn to uphold or, sadly, that people much believe in anymore.

Those wanting a morally strong argument for gun ownership should demand, primarily, protection of the natural right to self-defense and not of the civil rights of the Second Amendment. Those who want to help potential victims of murder, assault, and rape should not demand that those victims also surrender their natural right to defend themselves against such threats. Those social scientists honestly trying to determine social effects of particular gun laws should not propose that those determinations qualify as moral arguments, one way or the other. And those who believe a government’s job is to protect citizens’ natural rights should recognize that a government legitimately possesses a monopoly on force and with it a responsibility to regulate weapons.

Until we again recognize the difference between—and the relations between—civil rights and natural rights, and until we learn to again ground legislation in the protection of citizens’ natural rights and not on social statistics, arguments about gun rights will remain a mess.