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Thursday, February 05, 2009

What is the Second Amendment for? (Part Two)

As I’m sure you all know, in District of Columbia v. Heller the Supreme Court held that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. In this series of blogposts, I’m asking the following question: What are these interests? (This is a topic I have pursued in greater detail in a recent article.). It is not enough to say, as Scalia did, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

My first post discussed one conception of a right of self-defense, which failed to justify a right to bear arms. Today I am going to consider an alternative argument – that the right of self-defense and the right to bear arms can be justified on safety grounds.

But first a quick distinction between two senses in which possessing a firearm might increase one’s safety. There are good reasons to believe that possessing a firearm makes one safer compared to a fixed population. Firearm possession is, as the game theorists say, the dominant strategy.  If no one else owns a firearm, one is safer if one is armed.  If everyone else owns a firearm, one is safer if one is armed. That means that each individual will tend to have a strong desire to own a firearm and will rightly point to considerations of safety as the ground for this desire.

But that does not mean that a system of private arms possession, in which others are also allowed to own firearms, makes us safer. The mutually-imposed risks of accidental or improper use of firearms might make us all less safe than we would be in a world of compelled disarmament. Guns might, as the game theorists put it, present a prisoners’ dilemma

But let us assume, as is surely possible, that a system of private arms possession does make us safer than a policy of disarmament. One reason could be because a policy of disarmament would primarily affect only the law-abiding, leaving criminals with guns. If so, we would be safer if we let the law-abiding have guns as well. Another (less likely) reason is because a system of private arms possession would be very good at keeping guns out of the hands of those who would use them improperly, such that the predominant use of guns would be in justified self-defense.

Whatever the underlying reason, we are now assuming not merely that firearm possession is the dominant strategy, but that a system of firearms possession makes us safer than a policy of disarmament. The question remains, however, why we have a right to bear arms. To see why there is a problem here, consider the safety argument for a right of self-defense.

Imagine that the government prohibited all acts of self-defense, even when retreat is impossible. If confronted by a violent attacker, we could not defend ourselves, although we could inform the attacker that his actions are illegal and subject to punishment by the government. I think just about everyone would agree that we would be less safe in such a world. But why does it follow from this that there is a right of self-defense?

It appears that when Scalia speaks of the rights of self-defense and bearing arms, he means that these rights are pre-existing limits on the authority of the government. Individuals enjoy these rights even if they are not legally recognized. But does it follow from the fact that self-defense makes us safer that it is beyond the authority of the government to prohibit it? Keep in mind that the whole point of governmental authority is to obligate us to do what the government says even if it is wrong. If we were obligated to do what the government said only when it got things right, governmental authority would evaporate. The minute people disagreed with a law, they would conclude that the law was outside the government’s authority and could be permissibly ignored.

I’m not saying that there are no limits on the government’s authority. We can assume that the government would be acting outside its authority if it prohibited free speech or imposed cruel and unusual punishments, even if there had been no 1st or 8th Amendments. But the question remains why self-defense is among those limits. The fact that allowing self-defense is a good idea cannot be the reason, since governmental authority can obligate us to obey even the government’s bad ideas.

Nor do I think we can say that there is a right of self-defense because we have no duty to obey laws that are wrong concerning issues of public safety. The government constantly passes laws that impact our safety, laws that we think are binding upon us even when they are misguided.

Here are two other possibilities. The first is that laws that are manifestly bad at promoting public safety are beyond the government’s authority, and a law prohibiting self-defense would be such a manifestly bad law. (Notice that governmental authority would not evaporate if we were freed of an obligation to obey manifestly bad laws.) Another possibility is that we have a right to a certain minimal level of security (say, a level higher than what we would experience in the state of nature) and the government, by prohibiting self-defense, would take us below that threshold.

Of these two, I like the first better. One problem with second is that it is not clear that a government that prohibits self-defense would take us below the threshold of safety that is our due, since it may be doing a sufficiently good job at protecting us from violence in other respects that we are safer than we would be in the state of nature, even though we cannot engage in self-defense.

But let us assume that both of these are arguments for a right to self-defense. It is hard to see how a right to bear arms follows from this right of self-defense. Second Amendment advocates are fond of the following syllogism: There is a right of self-defense; arms are an important instrument of self-defense; therefore there is a right to bear arms. But this is too quick. As we have seen, even though we are clearly made safer by a system that allows self-defense, it does not follow that we are made safer by a system in which people possess arms for use in self-defense. The mutually imposed risks of the misuse of arms may make us less safe compare to a system in which we are disarmed (but can otherwise engage in  self-defense).

Of course, we are now assuming that a system of private arms possession does make us safer. But it still does not follow from this that we have a right to bear arms. After all, even if it is true that such a system makes us safer, it is hardly manifestly true. It is a matter about which reasonable minds differ. Therefore, it is hard to see how this is an issue that it outside the authority of the government to decide. By the same token, it is very unlikely that the contribution of private arms possession to our safety is so profound that the government can satisfy its obligation to provide us with a minimal level of security only by providing us with arms. (It would be odd to say, for example, that countries that prohibit arms are not providing their citizens with a level of safety better than they would experience in the state of nature).

Of course one can always conclude that the Founders simply wanted to constitutionalize this empirical judgment that a system of private arms possession makes us safer, even though there is in fact no genuine right to bear arms. But I would prefer a reading of the Second Amendment that makes better sense of why people think arms possession is truly a right.

Furthermore, if the safety argument does stand behind the Second Amendment, the argument for incorporation into the Fourteenth Amendment seems very weak. After all, if the Second Amendment does not protect a right, but simply constitutionalizes a (controversial) judgment about how best to promote public safety, it is hard to see how it can be “fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

It is for this reason that I think that the most promising argument for the Second Amendment points instead to an autonomy interest in firearms possession, which might be worth protecting even if we are all made less safe as a result. I’ll talk about that in subsequent posts.

Posted by Michael S. Green on February 5, 2009 at 12:50 PM in Constitutional thoughts | Permalink


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Thanks JP - You're absolutely right that I omit the justification that the right to bear arms is tied to the right of self-defense against a tyrannical government. In my article those are the sixth through the eighth justifications - about which I'll say more later, including why I distinguish between three.

A few points though. Scalia suggested that the Second Amendment protects, as least in part, our interest in bearing arms for use in defense against private (that is, non-governmental) violence. I'm trying to understand why that's true and your analysis does not help me.

This is important, because if the Second Amendment is only about bearing arms for the purpose of discouraging or defending ourselves against a tyrannical government, it is hard to see how one of the laws struck down in Heller was unconstitutional, namely the law requiring that firearms be kept disassembled or locked. How does that law seriously impede a revolution against tyranny? If a tyrant arises there will be time to reassemble or unlock our guns. Scalia made it clear that the problem with the law was that keeps us from engaging in self-defense against a (non-governmental) intruder.

Posted by: Michael Steven Green | Feb 5, 2009 3:54:34 PM

I think this analysis has a significant omission to the extent it fails to consider government as a possible threat to safety. If a system of self-defense and private arms ownership increases safety from genocide, and other forms of government tyranny.

Of course, a right to self-defense against the government creates serious definitional problems. Presumably, it should only apply to "tyrannical" government actions, but how do you define, or even predict, those? Therein lies the elegance of a right to bear arms. It creates a de facto right to self defense against tyrannical government actions, without undertaking the impossible task of defining the right. (The concept that a government can't, and so won't, oppress an armed populace.)

[I don't think it's relevant to your argument, but this analysis also makes contextual sense, as it harmonizes the purpose of Amendment II, with Amendment I and III - IX (and maybe X).]

I suppose this can be considered an "autonomy" argument, although that would seem to require an unduly narrow definition of "safety." In any event, great posts, and I'm looking forward to the next installment.

Posted by: JP | Feb 5, 2009 2:57:20 PM

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