is there a right to bear arms?

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Is There a Right to Bear Arms?Author(s): Timothy HallSource: Public Affairs Quarterly, Vol. 20, No. 4 (Oct., 2006), pp. 293-312Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40441446 .

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Public Affairs Quarterly Volume 20, Number 4, October 2006

IS THERE A RIGHT TO BEAR ARMS?

Timothy Hall

i.

we are to evaluate various gun control proposals, it is not enough to be informed about their expected outcomes. We must know whether there is a right to own

and use guns, or, as it will be called in what follows, "a right to bear arms." Whether there is a right to bear arms might be an even more important question

for some liberals than whether there are rights such as to free expression, or to free exercise of religion, for it is a common belief that widespread gun possession results in higher levels of violent crime. Unlike some other familiar rights, it is a disturbing possibility for many liberals that a right to bear arms would protect a largely harmful behavior.

Whether there is a right to bear arms is of broader interest to liberal political theory, too. One way of understanding the right to bear arms is as protecting a means to satisfying the interest one has in protecting oneself against unjust violence. When, more generally, one has a right to a specific means of satisfying an important interest is an underdiscussed question in liberal political theory. Yet the question is of great importance in deciding what the concrete limits of a liberal right are. The answer will determine such matters as whether the right of free expression implies a stringent right to specific modes of communication, such as web pages, e-mail, and the like. It will also determine whether the state may tax specific modes of expression heavily. An inquiry into the right to bear arms is a case study of the larger question of means-rights.

Within the past several years, there have been a number of notable commentar- ies on the right to bear arms, by Wheeler, Hughes and Hunt, LaFollette, Dixon, Stark, and Stell.1 This paper will discuss several of these. It will also offer a general account of how a non-consequentialist should think about means-rights: the reasonable cost account. On the reasonable cost account, for a given important interest an individual has a stringent right to some means that satisfies that interest at a reasonable cost to her. It will be argued that the reasonable cost account, in conjunction with empirical information about guns, yields a surprisingly strong case for a stringent right to bear arms.2

293



294 PUBLIC AFFAIRS QUARTERLY

Section 2 clarifies the paper's aims and the use of some terms. Section 3 ad- dresses three accounts of liberal-means rights. The reasonable cost account is offered, and defended, in section 4. Section 5 considers some empirical material, and suggests that the reasonable cost account implies a right to bear arms. This section also considers and replies to three objections of general interest to a right to bear arms, apart from the specific argument offered here for it. They are that the right to bear arms is overridden by the prospect of preventing harm, that restrictions on guns would further the interest in self-defense more than respecting a right to bear arms, and that respecting a right to bear arms would violate other rights of citizens. Section 6 concludes.

2.

In what follows, a "right" is a non-consequentialist right. Such a right tells against certain activity even in the face of doing significant good or preventing significant harm. A classic example is the right a person has against being killed so that his organs might be distributed among several others facing organ failure. A right is not necessarily an absolute right, however. Should there be the prospect of doing great amounts of good, or preventing sufficiently grave harms to a great many people, then the right might be overridden. A stringent right has a high threshold for being overridden.

This paper will discuss political rights, and so will be restricted to rights that an individual has against the state. These rights are moral rights, not legal rights, though the discussion of the former will obviously have implications for the latter.

The discussion will be restricted to what are called "negative" rights, or "rights of non-interference." Loosely speaking, these are rights that others not do certain things to one. A paradigm case is a right against others that they not do physical harm to one. It is now a common view in both interpersonal morality and political theory that people have certain positive rights that others come to their assistance even without special mechanisms such as promises or previous bad acts. This paper shall not argue for rights in that sense.

It will be assumed throughout that there is, at least sometimes, a permission to kill in self-defense. Only the least controversial case of killing in self-defense will be addressed: an innocent person, faced with a malevolent attacker, who has no alternative to suffering a grievous, unjust attack other than killing the aggressor. It will be assumed that the victim is permitted to kill in self-defense in such a case.3

This permission exists within a political society, it will be assumed. Even given a state-funded and -operated professional police service, individuals are permitted to use violence to protect themselves against violent, unjust attacks when police are unavailable. People also have a stringent right against the state that it not disrupt permissible acts of self-defense in progress.



IS THERE A RIGHT TO BEAR ARMS? 295

The question of violent self-defense against an unjust state itself will be left aside. While such defense has been, historically, a reason offered in favor of private ownership of weapons, this paper will be limited to interpersonal self-defense.

A "right to bear arms" is in what follows a right to own guns privately, to have guns ready for defensive use, and to use guns defensively when morally justified. The right, if it exists, includes the right to carry guns at least sometimes outside of the home. Restricted as it is to interpersonal defense, a right to bear arms will not be taken to include rights to large military weapons, such as motorized artil- lery, war planes, warships, or nuclear weapons.

The liberal state taken for granted in what follows is characterized by two features. On the one hand, it recognizes a range of stringent, classically asserted liberal rights: a right of free expression, a right to counsel in criminal proceedings, a right to free exercise of one's religion, and the like.

These rights, it will be assumed, protect important interests of individuals.4 A right to life, for example, protects individuals' interests in continued life. A right of free expression protects individuals' interests in expression and receipt of artistic works, political commentary, and other matters. Precisely which interests are protected by which stringent liberal rights is controversial. This controversy will be largely left aside. The arguments offered below should go through on any of a range of plausible views.

The liberal view assumed below also permits the state to act in some ways without implicating stringent rights. Contemporary liberals believe that at least some forms of redistributive taxation, or regulations on business conduct like environmental regulation, affirmative action, and the like, do not infringe rights.5 The account offered here will be consistent, at least in important particulars, with this view.

The question, then, is this. Given an important interest in self-defense, an interest important enough to give rise to a stringent right, does a stringent right to bear arms follow?

Answering this question requires a more general account of when means-rights follow from rights more abstractly characterized.

3-

LaFollette

LaFollette argues that there are no stringent means-rights at all. He distinguishes between fundamental rights and derivative rights. The former are those rights that protect fundamental interests: interests a person has irrespective of any particular desires, interests, or beliefs she has. Rights such as the right to life, the right to freedom of expression, and the right to live one's life as one wishes are examples. Derivative rights derive from fundamental rights. Though LaFol- lette doesn't elaborate on the notion of derivation, he offers two examples. One is the application of fundamental rights to particular circumstances. A right to




buy and consume alcohol, for example, derives from the more fundamental right of a person to live her life as she sees fit, in conjunction with a desire to include alcohol consumption in that life. Another case of derivation is a right being a means to the protection of another right. LaFollette considers the case of a right protecting gun possession. Respecting this right would be a means to respecting the more fundamental right of self-defense.

For LaFollette, fundamental rights are stringent. They require "compelling" or "overwhelming" reasons to be restricted. Derivative rights are less stringent. Derivative rights can be restricted if, as LaFollette puts it, the restriction is an "effective means of protecting the public from harm."6

An immediate question for LaFollette is how he distinguishes this latter condition from consequentialism. For it prohibits only ineffective attempts to prevent harm. LaFollette might point out that, unlike consequentialism, his formulation does not permit restrictions to realize benefits other than the prevention of harm. This clarification would be unlikely to go far enough to satisfy friends of liberal rights, however.

One natural suggestion to make on LaFollette's behalf would be that derivative rights provide a more stringent barrier to restriction than would consequentialism, but not so stringent a barrier as do fundamental rights. Some harms, the thought would be, must be endured in preference to enacting restrictions on a derivative right.7 A derivative right may be restricted, though, in circumstances in which a fundamental right might not. While a detailed schedule of stringency would remain to be specified, this interpretation seems amenable to LaFollette's larger purposes. It will be assumed, at any rate, that LaFollette's view can be elaborated in this way.

Even with LaFollette's view so clarified, the relation between fundamentality and stringency is not plausible. If a right is derived from some more fundamental right, one would not expect that the derivative right would be more stringent than the fundamental right. However, there is no reason to believe the derivative right must be less stringent than the fundamental right simply in virtue of its derivative status. Consider a case in which a derivative right is derivative in virtue of its being the more fundamental right applied in specific circumstances. One might have a right against state interference with one's attempts to make a living as an artist, for example. One might have this right in virtue of the more fundamental right to live one's life in the manner one pleases, conjoined with a desire to pursue one's devotion to one's art. It is not clear what it would mean in this case for the derivative right to be less stringent than the fundamental right. For the fundamental right is present in this case only in its application. More generally, it seems the only way to make sense of a fundamental right's being stringent is in terms of at least many of its instances being stringent.

Moreover, even if we were told what it amounted to that a fundamental right was more stringent than in its application, in the case under discussion the point




of a stringent fundamental right would be lost if the concrete instance of the right was not stringent. Given the importance of the specific interest at stake, the person's choice of occupation, a stringent right to live one's life as one wishes should tell here if it ever did.

LaFollette's other example of a derived right is a right that protects a means to the satisfaction of a fundamental interest. Here, too, one cannot infer that the means-right is less stringent than the fundamental right from its derivative status alone. Suppose a government were considering restricting access to all of the effective means of mass communication: printing presses, copying machines, radio and television broadcasting systems, internet servers and other means of electronic communication. Suppose the government offered a sincere non-expression- suppressing rationale for such restrictions. Perhaps these technologies were all imported from an economic rival, it was thought that dramatically reducing these imports would be good for the economy, and restricting the technologies altogether was the only practical way to defeat a black market. Most liberals would agree that stringent rights would still be at stake in these proposed restrictions. Most liberals would argue that a stringent right of free expression protects not only small-scale oral or written communications. The right issues in stringent protections for the means required for widespread and effective mass communication. These rights are comparable in stringency to the rights protecting small scale written and oral communication, many liberals would claim.8

LaFollette might reply that the various means of communication in this example are protected by fundamental, and not derivative, rights. He might argue that anyone has an interest in the use and products of printing machinery and electronic communication devices, whatever her specific interests, desires, and beliefs. So, the stringency of the rights protecting these devices does not affect the claim that derivative rights are less stringent than fundamental rights.

This reply concedes that rights to the means of satisfying one's fundamental interests can themselves be fundamental, however. For in this case one does not have a fundamental interest in the various means of communication themselves, but in the expression and receipt of the communications that the means enable. If one might have a fundamental, and hence a stringent, right to such means, it is open for a proponent of a right to bear arms to argue that there is a fundamental right to bear arms. For while one does not have a fundamental interest in guns themselves, one has a fundamental interest in the defensive abilities they enable.

So, a reduced stringency of a right protecting gun possession cannot be in- ferred from the fact that a gun is a means to the satisfaction of a fundamental interest. If that fact makes a right to own a gun a derivative right, one cannot infer immediately that the right is not stringent for being derivative. If the right might be fundamental despite the fact that a gun is a means to the satisfaction of a fundamental interest, then a proponent of a right to bear arms can argue precisely that the right is fundamental and therefore stringent.




The Intention Account

Considerations similar to those advanced above tell against another view of means-rights. On a variant of a view offered by Dworkin, at least some means- rights are rights against the state acting with the intention to frustrate an important interest. Consider the case of freedom of speech, or at least the freedom to produce or enjoy obscene material, for example. On this view, one has a right that the state not restrict the means of expression with the intent of restricting the expression on the basis of moral condemnation of its content. If a town is considering zoning laws that will have the effect of prohibiting only businesses that sell obscene materials, for example, the town must provide a plausible rationale for the zoning restrictions that is independent of any condemnation of the speech. A sincere appeal to the only plausible route for a limited access highway being through the properties housing businesses trafficking in the obscene is one thing. An appeal to the immorality of prurient materials is another.9

This account gives the state powers of restriction that many liberals will, or should, object to as too broad. Consider, again, the example I offered above, in which the state was considering restricting access to all effective means of mass communication. In that case, the state could offer a non-expression-targeting rationale for the restrictions: the economic benefits of restricting imports. However, it seems that one concerned to protect a right of free expression should still object that there are stringent rights in the way of the proposed restrictions. The important interests protected by the right of free expression - the interest in considering the expression of others, and in offering one's own forms of expression - would still be frustrated, even absent the intent to do so.

The objection here is an instance of a broader objection against intention-based non-consequentialist constraints. Many behaviors that do not involve an intention to do harm should nonetheless be restricted by non-consequentialist constraints. Suppose a person were contemplating driving through a busy crosswalk to save the lives of two passengers in immediate need of emergency medical attention. Driving through the crosswalk would kill one person. The killing of one person in the crosswalk need not be intentional, as it is not strictly part of the driver's plan. It is (only) something the driver foresees. Nevertheless, most people would object that the right to life of the one would tell against driving through the crosswalk. As most people would argue, the right to life of the one protects the most important interests of the one, whether or not the interests are intentionally frustrated.

The Necessity Account

The necessity account holds that if a means is necessary to the satisfaction of an important interest then the means is protected by a stringent right. This view is intuitive, and a common answer to the question of whether there are stringent means-rights. Some version of this view is maintained in two different commen- taries on the right to bear arms.




Wheeler argues that if one has a right of self-defense against unjust violent attacks, one has a right to the means necessary to defend oneself against unjust violent attacks. That right extends so far as to protect the acquisition and prepara- tion of means to defend oneself, including guns, well prior to any attack.10

Hughes and Hunt recount an actual event in which an armed woman was violently attacked. She faced either shooting her attacker or being killed herself. Hughes and Hunt imagine that, contrary to fact, someone interfered with the woman's use of her gun at the last moment, leaving her vulnerable to attack. They conclude, rightly, that interfering with this justified act of self-defense would have constituted a very serious rights violation. They also conclude that the state's confiscating guns from gun owners would be an equivalently serious violation. Because guns are necessary to defend oneself in cases like this woman's, they argue, one has a stringent right to possess guns prior to an attack.11

One can offer a plausible sounding argument for the necessity account. We assume an interest important enough to ground a stringent right. We assume that access to some particular means is necessary for the satisfaction of that interest. The implication of the two assumptions is that restrictions on that means are, or are on a moral par with, the frustration of that interest. From this we infer that one has a stringent right to the means necessary for the satisfaction of a fundamental interest.

Stark rejects the necessity account. She argues that we do not always have a stringent right to the means necessary to satisfy a fundamental interest. For example, the necessity account implies that if a person has a fundamental interest that could be satisfied only through constantly causing mild embarrassment to others the person has a stringent right to cause mild embarrassment to others. Or, if a person's religion called for the painless sacrifice of animals, that person would have a stringent right to sacrifice animals. These results are counterintuitive, Stark claims.12

Stark's first alleged counterexample is difficult to evaluate. If we suppose that the person in question has a fundamental interest that can only be satisfied through constantly causing mild embarrassment to others, it is not clear why we should balk at the implication that this behavior is protected by a stringent right. One can imagine a performance artist specializing in embarrassment, for example. It is not clear that liberals should find this person's having a stringent right to the behavior in question counterintuitive. Perhaps great stress is meant to be placed on the "constantly" in the example's description, so that we imagine that the person is doing such things as disturbing the sleep or invading the privacy of others. In that case, we should grant Stark's point.

Stark's second example is clearer. To the extent that liberals would reject a stringent right to sacrifice animals in religious ceremonies - this response would not be universal, one should expect - it would be owing to an unwillingness to




protect the harming of the animals. Here too, many liberals would concede that a necessary means to the satisfaction of a fundamental interest is not protected.

What follows from Stark's objections? Stark reminds us that stringent rights are, on the liberal view, constrained by various conditions. Liberals will reject a right to do bodily harm to others, and some liberals will include animals in the restriction, for example. Certain other conditions, such as time and place restrictions on the freedom of expression, are also recognized. Insofar as the necessity account is offered unqualified, then, Stark is correct it should be rejected.

However, an alternative version of the necessity account might claim that a means being necessary to the satisfaction of a fundamental interest presumptively establishes a right to that means. If various defeating conditions are not met, then, there is a right to that means. The defeating conditions referred to by Stark are straightforward. No impermissible bodily harming, even to animals, is protected by a means-right. Means-rights do not protect privacy violations, or harms like sleep deprivation (assuming it is not a bodily harm), either.

A proponent of the right to bear arms could then point out we have not been told how the right to bear arms fails. Gun possession is not itself harmful. It is not clear that there is an analog to the time and place problems with speech, either. The unspecified possibility of a decisive objection to a right to bear arms is not itself a decisive objection. In the face of the necessity of guns for self-defense, the opponent of a right to bear arms means must explain specifically what the failure of the case for a right to bear arms is.

There is another problem with the necessity account. It is, at best, incomplete. The reason is the notorious indeterminacy of the notion of necessity, and its companion notion, possibility. In general, a claim of necessity is not unqualified, but is made against a set of background conditions. What background conditions are appropriate is not itself determined by the notion of necessity, but assumed by it.

Consider, for example, the claim that books are necessary for satisfying one's important interest in free expression. This claim must be filled out in something like the following way: "books are necessary for satisfying one's important interest in free expression given that . . . ," followed by some further specification of background conditions.

Assume, for the moment, that alternatives to books - printed periodicals, or electronic texts - are more expensive than books. Two alternatives to fill out the necessity claim above would be:

(a.) "given that a person spends no more money on satisfying her important interests in free expression than she now does on books."

(b.) "given that a person spends sufficiently more money to avail herself of alternatives than she does now on books."




Whether the (a.) or (b.) clause is chosen determines whether the necessity claim comes out true. Yet, deciding between the (a.) and (b.) clauses reproduces a significant part of the controversy over whether there are rights to publish, buy, or sell books.

Applying the notion of necessity does not resolve the controversy. It assumes a resolution of it.

Furthermore, many liberals will argue that the necessity account does not go far enough in determining means-rights. In some cases, many liberals would be prepared to admit that a particular means was not strictly necessary for the satisfaction of one's important interests. The costs of satisfying those interests without that means, however, would be so high as to warrant the protection of the means by a stringent right nevertheless.

A right to counsel in criminal proceedings might be seen as an example. Lib- erals will agree that there is a stringent right to a fair trial, including extensive protections of a defendant's interests throughout criminal proceedings. Strictly speaking, it might be conceded that professional legal representation is not necessary for a fair trial. Many people could represent themselves. Even what might seem like the impossibility of learning the relevant details of criminal procedure after being charged need not be a barrier. A person could study law during time she might otherwise have spent in leisure, or working overtime, in anticipation of being involved in criminal proceedings, after all. Many liberals will agree, however, that even given this possibility the cost is too high to make the state's restricting access to counsel on consequentialist grounds acceptable. They will argue that a stringent right to a fair trial requires a stringent right to legal representation, as well.

4- The Reasonable Cost Account

These considerations suggest the reasonable cost account. On the reasonable cost account, given an important interest an individual has a right to some means that satisfies the interest at a reasonable cost to her.

The reasonable cost account appeals to a certain view of a liberal state. In protecting its citizens' most important interests, the state must refrain from frustrating those interests not just formally, but practically. It is not enough, on this view, that the state's actions preserve the bare legal possibility of satisfying one's important interests. The state must preserve a practical option for a person to satisfy her most important interests. A practical option is one that can be un- dertaken at reasonable cost.13

The reasonable cost account might be understood as an elaboration of the necessity account, that is, as a filling out of the background conditions against which claims of necessity are assessed. The account is not offered here in this way. Thus, one ground of dispute can be left aside: the proper interpretation of




necessity in the claim that a means is necessary for the satisfaction of a fundamental interest. A means might be protected by the reasonable cost account even if it is not, in some preferred sense, necessary.

The reasonable cost account is an account of negative rights, again. So, there is no question of the state's assuring that a reasonable cost option for one satisfying one's important interest is available. Rather, the state may not act so as to deny all reasonably costly means for the satisfying of an important interest that would otherwise be available.

The reasonable cost condition might be nuanced in its application. There might be factors working in opposite directions. On the one hand, the more important the interest in question, the less a person is able to forgo its satisfaction. Hence, one might think it is unfair for the state to make satisfying a vital interest too costly. Suppose the state taxed a unique, life-saving medicine, for example. If the state taxed the medicine at a very high rate, knowing that people had no real alternative to using the medicine, one might complain that that policy took unfair advantage of people's lack of options. On the other hand, one might argue that because an interest is important it is reasonable for a person to pay a higher cost for its satisfaction. So, some tax might be consistent with the medicine's being reasonably costly, even if it was expected that a person would have to forgo substantial goods to pay it.14

The account is meant to be applied to individuals, and to be sensitive to the details of their circumstances. Whether the state's prohibiting guns, for example, would make the prospects of self-defense unreasonably costly depends on the specific circumstances of each individual. Whether a person lived in an area in which violent crimes were frequent would play a role in determining the cost to that person of defending herself. Whether an individual person could afford alternatives such as high security buildings, moving to lower crime areas, or private security would determine whether a restriction on guns makes self-defense unreasonably costly.

As the previous discussion suggests, the reasonable cost account specifies a right to some means of satisfying an important interest, not any means. The state is permitted to restrict a reasonably costly means to interest satisfaction, provided a reasonable-cost alternative remains. Suppose, for example, that the state considered restricting printed publications. If there were alternatives for satisfying individual citizens' interests in free expression that were reasonably costly - as there might be in a hypothetical computerized society, in which political communication, artistic expression, and the like, were also broadcast electronically - then the restriction would satisfy the reasonable cost account.15

This flexibility in state restrictions might seem to offend liberal sensibilities. It should not. The reasonable cost account offers a condition for a stringent non- consequentialist right. Such a right should be asserted only on the basis of serious reasons. To claim that the state should be prevented from realizing some overall




good because some particular means is protected by a stringent right, even when adequate alternatives to that means would be available, seems fetishistic.

A more serious objection is that the reasonable cost account does not distin- guish among ways the state might cause an unreasonable cost of satisfying one's important interests. So, the reasonable cost account implies an embarrassing proliferation of means-rights.16

Consider, again, the freedom of expression. The state might impose unreasonable costs by restricting means of communication. On the other hand, the state might enact environmental regulation, or a tax policy, that results in a person losing her job. The state might regulate the sale of motor vehicles in a way that dramatically increases the cost of living. Or the state might close a particular roadway, thus increasing the cost in time and money to many people of travel- ing. All of these things might make the cost of satisfying one's interest in free expression unreasonable, as the total amount of time, effort, and money a person has available decreases.

However, when properly understood these results are not inimical to liberalism. By hypothesis, the various items mentioned are necessary for satisfying one's important interests at a reasonable cost. Some of these items - access to the roadways, private control of at least some money - are not specific to the interest in free expression. However, that the state may not act in ways that restrict access to these items to the extent that it is unreasonably costly for a person to satisfy her important interests is not an absurdity. Indeed, one might regard the result as friendly to spirit of liberalism. An individual's core of control over resources necessary for her most important interests is protected by stringent rights.17

Some liberal writers see a principled difference between policies like speech restrictions, or restrictions on the important means of expression, and policies like general taxation and regulation.18 The reasonable cost account denies this principled difference. But this denial too has its liberal pedigree. Writers such as Hayek and Friedman argue for the unity of what are often regarded as strictly civil-liberties protections and economic-liberties protections.19 This unity is furthermore plausible, given that the practical effects of "strictly" economic legislation can be identical to those of civil liberties legislation. Indeed, sensitivity to this fact is one motivation for the reasonable cost account.20

The suggestion is, then, that the reasonable cost account is superior to skepticism, to an intention-based condition, and to the necessity account as an account of means-rights. The reasonable cost account accords well with this paper's initial assumptions regarding a liberal state, as well.

5-

Whether a means-right to bear arms is implied by the reasonable cost account depends, then, on whether a restriction on guns denies some individuals a means to protect themselves at a reasonable cost.




The final word on the relevant empirical matters is best left to professionals in the social sciences. Nevertheless, one might offer some, admittedly incomplete, considerations.

Guns are capable of inflicting devastating injuries immediately. Guns are easy to use, and easy to learn to use, even for individuals lacking physical strength, coor- dination, or experience in hand-to-hand combat. Guns can be effectively employed by a single, physically weak defender even against multiple assailants. Guns can be used far enough from one's target to leave one safe from counter attack by any means other than guns. What direct defense there is against guns - body armor of various kinds - is imperfect, and at any rate is inconvenient and expensive. Some guns are easy to conceal on one's person, and thus easy to carry unobserved. Even when carried covertly they can be used almost immediately when desired.

Furthermore, popular portrayals of guns being what they are, even people with no direct experience with guns know all of these things. Thus, in addition to being powerful weapons, guns are powerful threats.

No other weapon an individual might employ in self-defense unites all of these formidable characteristics.

Formal research suggests so, too. A comprehensive analysis of data taken from the National Crime Victimization Surveys from 1979 to 1985 showed that using a gun in self-defense during a robbery or an assault was the single most effective means of self-defense. Gun use was a more effective defensive measure than the use of any other weapon, and it was more effective than trying to flee or offering no resistance at all. Specifically, guns were anywhere from 30 to 100 percent more effective at preventing injury, depending on the crime attempted, the sex of the defender, and the means to which they were compared.21

The results of this survey should not be surprising. It is taken for granted, even by proponents of various forms of gun control, that the best way for governments and security agencies to protect important people or valuables is with guns. That private citizens should find no other means to be adequate replacements for guns is no more difficult to believe.

The one survey is not decisive, of course. But even if its findings were un- questioned, there would still remain the question of what would happen under a different set of laws. It might be thought that without ready, legal access to guns, many people would adopt alternative defensive strategies that preserved their security as well as guns. While the survey suggests that there would be no such alternative at the moment of the attempted crime, citizens might make arrangements to avoid circumstances in which violent crimes would occur.

However, it is unrealistic in the extreme to suppose violent crime occurs only because the victim failed to take evasive actions before the fact that were available at a reasonable cost. Many victims simply cannot afford to move to, or work in, areas that present a significantly lower risk of violent crime without sacrificing a range of their most important interests. More importantly, it is not possible for




nearly anyone to live a life without putting herself in the proximity of a large number of strangers, and often. As crime victims are often distinguished by their attractiveness relative to other targets, there will always be prospective victims presenting an attractive opportunity for violent criminals. Evasion is not, then, a realistic replacement for guns.22

So there is suggestive, if incomplete, evidence that guns provide a uniquely powerful means of defending oneself at a reasonable cost, at least for many citizens. The reasonable cost account would then imply that there is a right to bear arms, at least for many citizens.

There are objections to be considered, however. It is worth noting that these objections and replies are of interest to many arguments for a right to bear arms, not just the one made here by way of the reasonable cost account.

The first is that a right to bear arms is justifiably overridden by the prospect of preventing great harms by restricting it. This objection claims, as is commonly claimed, that widespread gun possession results in higher levels of violent crime. Were severe restrictions placed on guns, violent crime would diminish considerably. This prevention of harm is sufficient to override a right to bear arms.

The extent to which widespread gun possession results in higher levels of violent crime is much discussed in sociological literature, and is a matter of controversy. At least one researcher, in a summary of criminological literature, reports that widespread gun possession does not have any overall impact on rates of violent crime.23 Other researchers appeal to international comparisons among nations with both high and low levels of gun possession, and conclude that high levels of gun possession cause higher rates of violent crime.24

A clearer result emerges from consideration of the evidence that gun control measures will prevent crime. The inability of prohibition to effect scarcity of illegal drugs, or various forms of illegal obscenity, raises doubts as to whether high gun prevalence could be effectively reduced through legal prohibition. A much noted obstacle is that those whose possession of guns is the most danger- ous - active violent criminals - are least likely to be deterred from gun possession by laws that prohibit it. This is not only because threats of legal punishment are least effective among this group of people, but because of the importance of guns in criminal enterprise.25

Furthermore, crime reduction might be achieved through policies other than gun restrictions. Wealth redistribution, more effective policing strategies, licensing or registration systems of guns that are reasonably costly for legal gun owners, and alternative incarceration strategies are all options.26 A proponent of the right to bear arms can insist that reductions in crime from gun restrictions must be measured against this baseline. If this baseline is adopted, the case for overriding a right to bear arms might be considerably weakened.

It shall be taken, then, that the case that gun restrictions promise sufficient good to override a right to bear arms is unsettled. That case, particularly in its




optimism that prohibition will realize gun scarcity, is weaker than casual proponents of gun restrictions sometimes assume.

A second objection is that prohibition on guns would reduce the likelihood to each law-abiding person of being victimized by violent crime. For a person to be victimized, the person must be attacked, and the attack must succeed. Gun prohibition would reduce the likelihood of one's being attacked, because criminals would be deterred from making some attacks they now make only because they have guns. That reduction in the likelihood of attack would more than compen- sate for any reduced defensive ability once an attack occurred. So, restrictions on gun possession do not violate any stringent rights to means to self-defense, the objection runs, because their net effect is to enhance the overall defense of individuals.

One might, again, doubt the effectiveness of gun prohibition as an attack- preventing measure. Let us assume for the sake of argument that gun prohibition would reduce the frequency of violent attacks, however, and that it would reduce each individual's chances of being victimized.

It is not enough to reduce the net likelihood of an individual's being attacked ex ante to avoid the charge of a rights violation, however. Gun prohibition would deny to some people the only means of reasonable cost by which they might save themselves from violent victimization. Some of those people will be subsequently victimized only because they were denied use of a gun. Those facts suffice for rights violations, even if gun restrictions reduced the ex ante likelihood of being victimized. For the reduction in ex ante likelihood is accomplished by a system that acts directly to frustrate the most important interests of some people.

Compare the present line of reasoning to one criticizing the famous example of society-wide organ lottery. Suppose that healthy individuals were chosen by lot from throughout society to be killed and to have their organs transplanted whenever the organs of one healthy person would save the lives of two or more people dying of organ failure. The fact that the system would increase everyone's survival chances overall, calculated prior to knowing who was susceptible to organ failure and who was not, does not suffice to rebut a complaint that the lottery would violate stringent rights. The fact that the net reduction in risk is achieved by means that sacrifice the most important interests of some people is sufficient for rights violations.

Another, less exotic example would involve rights of the accused in criminal procedure. Suppose that it were true that diminishment of the rights of the accused would decrease violent crime overall. Suppose, then, that the average person would enjoy increased overall security as a result, despite the increased chance of wrongful incarceration or execution. These facts would not suffice in the minds of most liberals to justify the restrictions on the rights of the accused. Some innocent people would be punished wrongfully, and the harm to them would constitute a rights violation despite the increased security they enjoyed ex ante.11




The right to bear arms should be viewed like these other rights. If it is a right, violating it is not justified by the reduced likelihood of attack to the right bearer calculated ex ante.

A final objection is that permitting widespread gun possession violates other rights of citizens. The objection claims that citizens have positive rights against the state that it prevent violent crime. Criminal acquisition of guns is parasitic on the legal trade in guns. Permitting gun possession facilitates violent crime. So, the state violates the rights of citizens by permitting widespread gun possession. Since the state would violate rights whatever it did, then, it should act so as to minimize the number of violations it commits. Minimizing rights violations requires enacting restrictions on guns.

Once again, this objection is subject to the aforementioned skepticism about the crime-reducing effects of gun restrictions. Leaving those doubts aside, it is plausible that there is a positive right against the state for it to protect one from criminal victimization. Even so, it is not obvious that the violation of the positive right is on a par with the violation of a negative right that would occur under gun restrictions. One problem is that were the state to restrict the right to bear arms, it would be intending to do this as a crime fighting measure. Were the state not to restrict the right to bear arms, it would not be intending the failure to prevent crime that would ensue (assuming such failure did ensue). Since it is morally worse to violate a right intentionally than foreseeably, it can be argued, the state should err against restricting a right to bear arms.

Furthermore, there is again the prospect of realizing crime reductions through means other than restrictions on guns. Should it be possible to reduce crime significantly through policies that do not violate a right to bear arms, the question would be whether those crime reductions still possible via restrictions on a right to bear arms justified restricting the right. If alternative crime fighting measures were very successful, gun restriction might well violate more net rights than would permitting widespread gun ownership.

Finally, this objection runs counter to a liberal understanding of other stringent rights. To consider the example again, recognizing stringent rights in criminal procedure is not taken to violate the rights of citizens even if such recognition results in acquittals of criminals who then commit further crimes. Or, if rights are violated in that case, it is not taken to follow on the liberal view that the state may approach protections in criminal procedure with a view to minimizing rights violations. (Indeed, the common refrain regarding the criminal justice system, better ten guilty people go free than that one innocent be imprisoned, expresses the non-consequentialist sentiment clearly.) If there is a right to bear arms, then, it should not give way in the face of the prospect of reducing crime any more than protections in criminal procedure. Indeed, there is an even stronger case for the right to bear arms not giving way. It protects the right a citizen has against




being killed or grievously injured. The rights of the accused in criminal procedure protect against penalties that, while serious, are usually less serious than that.

6.

This paper has outlined a case for a liberal right to bear arms. The case appeals to the reasonable cost account of means-rights and some empirical information about guns. The implication is that there is a serious case for a stringent right to bear arms, a case comparable to that for other stringent liberal rights.

The right to bear arms defended here is not as precise as one would like to make law. The possession of guns, the ability to have them ready to hand for defensive purposes, and the permission to use them in justified self-defense is consistent with a wide variety of detailed legal options. For example, the preceding discussion does not bear directly, it seems, on the question of carrying a gun outside of one's home concealed, as opposed to openly. This practice has been the subject of debate in many state legislatures over the past decade, and is now legal with a license in the large majority of American states. Other forms of gun control that are a common subject of legislative debate - registration of guns, licensing consistent with reasonable costs, the banning of a narrow range of rifles, and so on - do not seem affected by the case offered, either.

It was said at the outset that this paper would not discuss self-defense against the state itself. There are few points worth noting here, though. Even if the case offered here for a right to bear arms for interpersonal defense is sound, the case for weapons necessary to provide a realistic deterrent against the military forces of industrialized nations, with special note taken of those of the United States, will not be parallel. The case for an individual's right being overridden is much stronger, particularly when it comes to weapons with which a single errant misuse would be catastrophic. Nuclear weapons, powerful conventional explosives, chemical weapons, and biological weapons are obvious examples. The prospects for victory of an armed populace against a well-equipped modern military are not comparable to those of an armed person against a single criminal assailant, either.

Nevertheless, it is possible that there is a right to possess some military weapons, such as machine guns, grenades, or other light infantry weapons. It seems

plausible that individuals have an important interest in reducing the prospect of political tyranny even slightly. The prospect of even guerilla resistance against an occupying force might accomplish that much. Unlike weapons to defend against violent crime, military weapons would not need to be ready to hand, either. Ac- ceptable legal restrictions might then require elaborate storage arrangements that reduced the prospect of accident or theft to non-overriding levels. In any case, the reasonable cost account can provide a useful approach to this form of a right to bear arms as well.28

Oberlin College




NOTES

1. Samuel Wheeler, "Self-Defense: Rights and Coerced Risk- Acceptance," Public Affairs Quarterly, vol. 1 1, no. 4 (1997), pp. 431-443; "Arms as Insurance," Public Affairs Quarterly, vol. 13, no. 2 (1999), pp. 1 1 1-129; "Gun Violence and Fundamental Rights," Criminal Justice Ethics, vol. 20, no. 1 (2001), pp. 19-24; Hugh LaFollette, "Gun Control," Ethics, vol. 1 10, no. 2 (2000), pp. 263-281 ; "Gun Control: The Issues," Criminal Justice Ethics, vol. 20, no. 1 (2001), pp. 17-18; "Controlling Guns," Criminal Justice Ethics, vol. 20, no. 1 (2001), pp. 34-39; Cynthia Stark, "Fundamental Rights and the Right to Bear Arms," Criminal Justice Ethics, vol. 20, no. 1 (2001), pp 25-27; Lance Stell, "Gun Control and the Regulation of Fundamental Rights," Criminal Justice Ethics, vol. 20, no. 1 (2001), pp. 28-33; Nicholas Dixon, "Handguns, Violent Crime, and Self-Defense "

International Journal of Applied Philosophy, vol. 13, no. 2 (2001), pp. 239-260; Todd Hughes and Lester Hunt, "The Liberal Basis of the Right to Bear Arms," Public Affairs Quarterly, vol. 14, no. 1 (2000), pp. 1-25; Lester Hunt, "Epilogue: Is There an Issue Here?" Criminal Justice Ethics, vol. 20, no. 1, pp. 40-44.

2. In one article, Wheeler makes a case for a right to bear along these lines. In many ways this essay can be understood as an elaboration of Wheeler's argument. See Wheeler, "Gun Violence and Fundamental Rights," p. 23.

3. Questions such as whether it is permissible to kill innocent people in self defense will be left aside. Such cases include innocent aggressors, such as a person who falsely but justifiably believes that another person is going to kill him, and so undertakes to kill the person first. Another difficult case is an innocent non-active threat, such as a fetus in a difficult pregnancy that threatens the woman with death. For an extended discussion of these controversies, see Thomson, "Self-Defense," Philosophy and Public Affairs, vol. 21, no. 4 (1991), pp. 283-310; Otsuka, "Killing the Innocent in Self-Defense" vol. 24, no. 1 (1994), pp. 74-94; Jeff McMahan, "Self-Defense and the Problem of the Innocent Attacker," Ethics, vol. 104, no. 2 (1994), pp. 252-290; Kamm, Creation and Abortion (Oxford: Clarendon, 1991).

4. This assumption does not imply a position on the classical controversy as to whether rights most fundamentally protect interests or protect the exercise of one's will. Even on the latter view, which exercises of one's will are protected will be in part determined by the interests satisfied by the exercise of will. The latter view allows for arguments for the existence of rights, then, on the basis of the importance of interests that would be protected.

5. Further questions such as whether the liberal state furthers a single value are left aside. Dworkin, for example, believes that the distinctive characteristic of liberalism is a commitment to equality. See Ronald Dworkin, "Liberalism," in Public and Private Morality, ed. Stuart Hampshire (Cambridge: Cambridge University Press, 1978), pp. 113-143.

6. LaFollette, "Gun Control," pp. 264-267.

7. LaFollette suggests he might be offering such a view. LaFollette says that one must respect "tokens" of rights even when doing so would be contrary to maximizing the good. One must be prepared to show, though, that "types" of rights maximize the good.

If types of rights must pass consequentialist muster, though, why not individual tokens, as well? If respecting a right token would not maximize the good, why couldn't the state




point that out in refusing to respect the token? If one appealed to consequentialist reasons in response, then one would contradict the hypothesis that restriction of the token would maximize the good. If one appealed to non-consequentialist reasons, then why couldn't one also appeal to similar non-consequentialist reasons to justify right-types that were counter to the general good? See LaFollette, "Gun Control," p. 265.

8. Wheeler also criticizes LaFollette's claim that a derivative right is, on that basis, less stringent than a fundamental right. He offers an example of a derivative right that seems stringent: a right of a severely allergic person not to be touched with peanut products. Wheeler, "Gun Violence and Fundamental Rights," p. 22.

9. Dworkm s account is even narrower than the one explained here. For Dworkin permits some restriction of obscene speech on the grounds that it offends, but not on the grounds that it is immoral. He also claims that the state acting on an intention to prevent harmful consequences believed to follow from obscene speech (under that description) does not run afoul of the right of free expression. The latter concession undermines a large part of the point of the right, it would seem. Ronald Dworkin, "Do We have a Right to Pornography?" in Ronald Dworkin, A Matter of Principle (New York: Cambridge University Press, 1985), pp. 354-359.

10. Wheeler makes this case most straightforwardly in "Self-Defense: Rights and Coerced Risk- Acceptance," pp. 435-438. In a later article he distinguishes between cases in which a particular means is necessary and those in which a disjunction of means is necessary without any one means being necessary. He then goes on to offer an account close to the reasonable cost condition. See Wheeler, "Gun Violence and Fundamental Rights."

11. At least, it would be an equally serious violation in those cases in which gun owners were later attacked, and unable to offer the defense they would have had without a restriction on guns. Hughes and Hunt, "The Liberal Basis of the Right to Bear Arms," pp. 6-9.

12. Stark, "Fundamental Rights and the Right to Bear Arms," p. 27.

1 3 . Wheeler makes this point as well. It seems that Wheeler understands the requirement for a practical option to be an elaboration of what is here called the "necessity account." See Wheeler, "Gun Violence and Fundamental Rights," p. 23.

14. Mill defends the view that the state is permitted to tax commodities in a way designed to maximize revenues, as long as the scheme of taxation is sensitive to the commodities that consumers can "best spare." J. S. Mill, On Liberty (Indianapolis: Hackett, 1978), p. 100.

1 5 . The restriction could meet the reasonable cost account, it should be noted, even if the alternative was more costly for individuals than the restricted option. If, for example, buying a computer and receiving electronic communications was more expensive over time than buying printed materials like magazines and newspapers, a restriction on the latter would still meet the condition as long as the total cost of computerized communications was reasonable.

16. This objection is similar to one LaFollette offers against what this paper calls the "necessity account." See LaFollette, "Gun Control," pp. 265-266.

17. One might note that the reasonable cost account provides a defense of a progres- sive taxation. The poor are those with the slimmest margin between what is necessary for



IS THERE A RIGHT TO BEAR ARMS? 3 1 1

the satisfaction of their important interests and their total holdings. Hence, they are less vulnerable to coercive taxation than the better off. Again, this result does not embarrass liberals.

18. Dworkin and Rawls are two famous examples. See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), p. 200; John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 243-250.

19. F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), pp. 85-102; The Road to Serfdom (Chicago: University of Chicago Press, 1994), pp. 97-1 1 1 ; Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), pp. 7-21.

20. The wide range of means-rights on the reasonable cost account does not imply that the state may not enact general tax policies, or take other actions, that risk decreas- ing the likelihood of a person's satisfying her important interests, or that risk imposing unreasonable costs. Rather, the condition implies that the state must ensure that comparable alternatives to what is restricted are available, and at reasonable cost. Suppose the state prohibits a class of economic activity, some form of mining for example, on environmental grounds. People previously employed in that area might seem now to face - among other things - an unreasonable cost to satisfying at least some of those interests. However, alternatives for gainful employment in other, legal sectors of the private economy can satisfy the reasonable cost account for those individuals. Alternatively, should the prospect of longer term unemployment loom for some individuals, an unemployment compensation system could satisfy the reasonable cost account. The implication is that the state can take economic policy actions that affect individuals' prospects for the satisfaction of their important interests only against a background in which alternatives for that satisfaction are ensured. This implication is, of course, not illiberal. Indeed, many liberals would welcome it.

21. Specifically, in attempted robberies, those who used guns to defend themselves were attacked 25% of the time, and were injured 17% of the time. Those using knives were attacked 55% of the time, and were injured 40% of the time. Those using any other weapon were attacked 41% of the time, and were injured 22% of the time. Those who offered non- violent resistance, including trying to flee, were attacked 54% of the time, and were injured 34% of the time. Those who undertook no means of self-protection at all - that is, those who cooperated with their robbers - were attacked 41% of the time and injured 24% of the time. The figures for attempted assault favor guns even more. In that case, defenders using guns were injured only 12% of the time, as compared to 29% of knife-wielding defenders, 25% of defenders using any other weapon, and 20% of those employing evasive or non- violent tactics. These data are taken from the incident files of the 1979-1985 National Crime Victimization Survey public use computer tapes, as reported in Gary Kleck, Targeting Guns (New York: Aldine De Gruyter, 1997) p. 190.

For a similar finding with a more recent, but smaller, data set, see Lawrence Southwick, "Self-Defense with Guns: The Consequences," Journal of Criminal Justice, vol. 28, no. 5 (September 2000), pp. 351-370.

For contrary views, see Cook, "The Technology of Personal Violence," in Crime and Justice, ed. Michael Tonry (Chicago: University of Chicago Press, 1991) pp. 1-71; Franklin E. Zimring and James Zeuhl, "Victim Injury and Death in Urban Robbery: A Chicago Study," Journal of Legal Studies, vol. 15, no.l (1986), pp. 1-40; Arthur Keller- man, Frederick P. Rivara, Roberta K. Lee, Joyce G. Banton, Peter Cummings, Bela B.



3 1 2 PUBLIC AFFAIRS QUARTERLY

Hackman, and Grant Somes, "Injuries Due to Firearms in Three Cities," New England Journal of Medicine, vol. 329, pp. 1438-1444.

For replies, see Kleck, Targeting Guns, pp. 170-175.

22. Wheeler makes a similar point, though in service of what I have interpreted as the necessity condition. See Wheeler, "Self-Defense and Coerced Risk- Acceptance," p. 441, n. 3.

23. Kleck, Targeting Guns, p. 384. For data showing that differences in levels of homicide among the United States, Great Britain, and Canada actually decreased following strict gun controls in Great Britain and Canada, see Martin Killias, "Gun Ownership, Suicide, and Homicide: An International Perspective," in Understanding Crime, ed. del Frate, Zvekic, and van Dijk (Rome: UNICRI, 1993), pp. 289-303.

24. See Gregg Lee Carter, The Gun Control Movement (New York: Twayne Publishers, 1997), p. 3; Albert J. Reiss, Jr., and Jeffrey A. Roth, eds., Understanding and Preventing Violence (Washington: National Academy Press, 1993), p. 260.

25. For a comprehensive overview of research showing the general ineffective- ness of various gun controls on reducing violent crime, see Kleck, Targeting Guns, pp. 351-382.

26. In this connection, a proposal of LaFollette's is worth mentioning. LaFollette proposes that gun owners be subject to strict civil liability for any harms their guns are involved in causing, even harms resulting from theft of the gun followed by criminal misuse. The proposal carries with it the prospect that an innocent, non-negligent gun owner might be victimized by theft and thereby made vulnerable to bankrupting liability. Even imposing a small likelihood of this possibility seems an unreasonably high cost to impose on gun ownership.

It also bears mentioning that the most widely discussed federal measures of the last fifteen years, the Brady Bill requiring background checks for some gun purchases and a ban on so-called "assault weapons," appear to have had no effect in reducing crime whatsoever. Lott finds some slight increase in risk to crime victims, however, from the passage of the Brady Bill.

See LaFollette, "Gun Control," pp. 280-281; Kleck, Targeting Guns, pp. 351-382, especially pp. 375-376; John Lott, More Guns, Less Crime (Chicago: University of Chicago Press, 2000), p. 91.

27. It is worth noting that in the case of reduced protections in criminal proceedings, the harm to innocent people is not itself useful. That makes the case of these reduced protections like that of gun restrictions, and unlike the case of the organ lottery.

28. Thanks to David Christensen, Derk Pereboom, Donald Loeb, Todd Ganson, Al Mackay, Peter Mclnerney, Katherine Thomson- Jones, and Martin Thomson- Jones for comments on this essay, and to Samuel Wheeler for editing suggestions. Thanks to Kira Thorien for extensive proofreading.



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