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Tuesday, February 10, 2009

What is the Second Amendment for? (Part Three)

The previous two installments to this post are here and here. At this point, some of you might be asking: How many parts can there be to this post? Aren’t two enough? Well, in a recent article I identified nine distinct arguments (of varying degrees of persuasiveness) that have been offered in favor of the Second Amendment. And that’s ignoring the collective-right interpretation rejected in District of Columbia v. Heller. In short, the question of the purpose, or purposes, of the Second Amendment is much more complicated than has generally been assumed.

In the last post, I addressed the argument that the Second Amendment protects our interest in security from violence at the hands of our fellow citizens. This heart of this argument is the empirical judgment that a system of private arms possession is better at making us safe from private violence than a policy of compulsory disarmament. Notice that the idea is not merely that the choice to arm dominates, in the sense that it makes one safer with respect to any given population. For that could be true even though the collective result of each of us making the dominant choice is that we are all less safe (due to the mutually-imposed risks of accidental or improper use of arms).

The idea must instead be that we are all truly safer when allowed to bear arms than we would be in a system of compelled disarmament. Although this is indeed possible, I argued last time that it is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government.

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 aware of the differences between these arguments and those that appeal to safety).  One benefit of autonomy arguments is that they could work even if, as many gun control advocates claim, private arms possession makes us less safe.

To get a feel for these autonomy arguments, it is best to begin with the idea of the Lockean state of nature. In the state of nature, each of us is entitled to defend and enforce natural right privately. For example, if you have violated my natural rights (e.g. to life or property) or indeed someone else’s natural rights, I may punish you.

The problem with the state of nature, of course, is that creates excessive conflict, because we tend to read the scope of natural rights in favor of ourselves and our kin. We would all be better off, and our natural rights more secure, if we gave over our power of enforcement to the government, even though it too can make mistakes about the scope of our rights.

But it is crucial to see that for Locke the fact that the state of nature can descend into a state of war does not mean we have a duty to submit to governmental authority. We may remain in the state of nature if we choose. To force us to submit to the government, even if it is for our own good, would violate our autonomy. Our ability to enforce our visions of natural rights (and bear the costs of our mistakes) is of value, despite its costs.

A natural right to bear arms can be derived from this autonomy interest in private enforcement of rights, because arms allow us to more effectively vindicate this interest. In a very real sense, guns increase our autonomy. Of course, for just this reason they exacerbate the problems of the state of nature. Feuding becomes more deadly when people are armed. But one cannot point to these costs to claim that we have no right to bear arms in the state of nature – for if that argument worked, there would be a duty not merely to disarm, but to submit to governmental authority. And that is contrary to Lockean values of autonomy and individualism.

So far so good. But to say that there is a natural right to bear arms does not mean that governmental authority is limited by this right. The whole point of the social contract, by means of which the authority of the government is created under Lockean consent theories of the state, is that we give over some of our natural rights to the government. Foremost among these alienated natural rights is the right to private enforcement. Since the right to bear arms is tied to the right to private enforcement, it appears that we would also alienate our right to bear arms.

The justification I am considering today assumes, however, that we have returned, at least partially, to the state of nature. One reason might be because the government cannot promise the level of protection from violence that is a requirement for governmental authority. Returned to the state of nature, we regain our natural right to bear arms even though – and this is important – the collective exercise of our right to bear arms can make 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.

The argument has some plausibility given the circumstances of the founding of the Republic, since there was no regular police force at the time. Particularly in the backcountry, American citizens were, at least partially, in the state of nature. This arguably returned to them some of their alienated natural rights, including the right to bear arms. Notice that it follows from this theory that not all governments have a duty to allow private arms possession. A government that offers its citizens sufficient protection from violence would be within its authority if it forcibly disarmed the population in the interest of public safety. The theory is anarchistic in the sense that it depends upon our escaping, to some extent, the authority of the state.

I discuss this theory in greater detail – including some of its problems – in my article. One of the biggest problems with theory is its anarchistic premise that we have escaped the authority of the government. In my next post, I will consider an autonomy argument that does not depend upon anarchistic premises.


 

Posted by Michael S. Green on February 10, 2009 at 10:40 AM in Constitutional thoughts | Permalink

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