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Monday, February 16, 2009

What is the Second Amendment for? (Part Four)

This multi-part post canvasses possible accounts of the Second Amendment’s purpose (a matter that I have discussed in greater detail in a recent article). Justice Scalia’s opinion in District of Columbia v. Heller doesn’t answer this question, beyond saying that the right to bear arms is tied to a natural right of self-defense. This does not tell us what interest stands behind the right of self-defense and how bearing arms is connected to that interest.

After discussing one failed argument for a relationship between arms possession and a right of self-defense, I then discuss what is probably the most popular interpretation of Scalia’s statement – namely that a legal system in which there is a right to self-defense makes us safer from violence at the hands of our fellow citizens and that the right to bear arms can be justified on the same basis. I argue that even if it is true that a system of private arms possession makes us safer than one in which we are forcibly disarmed, this is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government to disarm the population. 

The primary goal of my article is to explore autonomy arguments that I believe are occasionally voiced by Second Amendment advocates (often without their being even aware of the difference between these arguments and those that appeal to safety). The idea that there is a natural right to bear arms – that is a right to bear arms when living independently of any governmental authority – makes a good deal of sense. In the Lockean state of nature we each have an entitlement to defend and enforce natural rights privately. Each of us is like a private police force. This is true even though private enforcement leads to feuding. The likelihood of feuding does not put on us a duty to submit to governmental authority. We have an autonomy right to enforce our vision of natural rights and bear the costs of our mistakes. But, in the interest of avoiding conflict, we may choose to submit to governmental authority (something we presumably have done).

A natural right to bear arms can be derived from this natural entitlement to private enforcement of rights, because arms allow us to execute our judgments about natural rights more effectively. This is true even though feuding becomes more deadly when we are armed.

But it does not follow from the fact that we have this right to bear arms in the state of nature that we have a right to bear arms against the government. We relinquish our entitlement to private enforcement when submitting to governmental authority. Since the right to bear arms is tied to this entitlement, it appears that we would also alienate our right to bear arms.

Last time I considered an anarchistic argument for the Second Amendment, which claims that we have a right to bear arms against the government because we have returned to the state of nature to some extent. One benefit of this argument is that it could work even if the collective exercise of our rights to bear arms makes us less safe than we would be if we were forcibly disarmed. Under this theory it is not safety that justifies the Second Amendment, but Lockean autonomy.

But there is another autonomy argument that does not depend upon the anarchistic assumption that we have escaped the authority of the government. There are a number of rights that we take ourselves to have against the government that appear to preserve part (although not all) of the entitlement to private enforcement that we possess in the state of nature. One example is the privilege against self-incrimination (which I have analogized to the Second Amendment here). Someone asserting the privilege appears to claim an autonomy right to make her own assessment about her possible wrongdoing. Although this idea is deeply attractive, it is also in tension with governmental authority, which exists to keep people from relying on their own judgments about the scope of their own and other people’s wrongdoing.

A similar problem exists with the right of a plaintiff to bring a civil lawsuit. This right has many of the “feuding” costs that we associate with the state of nature. People bring more suits than they should because they tend to read the scope of their rights in their own favor. Although the idea that we have a right to a civil suit is also deeply attractive, once again it is in tension with governmental authority.

The idea, then, is that the right to bear arms is like these rights to private participation in rights-enforcement that we retain even within a system of governmental authority. The complete entitlement to private enforcement that we possess in the state of nature is not retained of course (or we would be back in the state of nature, with all its costs). But part of it is retained, not because we are made safer as a result, but out of respect for Lockean principles of autonomy and individualism.

The trick, of course, is determining just how much of the natural right to bear arms is reserved. I discuss these issues, once again, in the recent article.

Posted by Michael S. Green on February 16, 2009 at 11:02 AM in Constitutional thoughts | Permalink

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