PHILOSOPHY - RKBA and the Right of Self Defense...

[Old Ironsights]

Philosophy of Law
Gun Control and The Right to Self-defense
by Adam Mossoff
June 1998

As a gun owner, collector, and aspiring legal philosopher, the issue of gun control fascinates me. In the early 1990s, when Sarah Brady's Handgun Control, Inc. was on a lobbying rampage, and the government was banning firearms left and right, I wrote a lengthy article for the OSG on the topic. The public fanfare surrounding the topic mostly died in the following years, but surged recently following the made-for-TV movie, 'The Long Island Incident.' Directed by Barbara Streisand, the movie was ostensibly about the massacre of innocent people on the Long Island Rail Road by a lone gunman. However, Streisand also used the movie as a propaganda vehicle for her misinformed, irrational gun control agenda. Thus, I believe its time again to repeat why every man has a right to own firearms.

Yes, there is a right to own firearms, which is a derivative of man's right to self-defense, which is itself derived from man's right to life.

The field of battle on which gun control should be fought is exactly on this issue: man's rights. Statistical arguments on gun control are a red herring--as the leftists' appeals to hungry children or the environmentalists' appeals to clean parks are also meant to distract their opponents from the fundamental issues at stake. While the National Rifle Association (NRA) and other defenders of the right to bear arms argue over statistics and interpreting the Constitution, the real issues remain untouched and are sacrificed to the enemies of our freedom.

As stated, the gun control debate should be addressed as a debate over man's rights. A man's right to own a gun is based on his right to self-defense. This right itself is not a primary, but rather is a corollary of the right to life. Clearly, if a man has a right to his life, then he necessarily has the right to defend that life in times of need, i.e., against those who act to violate his rights. This is the "ten-second outline" of the source of the right to self-defense.

Given the prior acceptance of an individual's right to his life and his corollary right to self-defense, the conclusion that weapons should be privately owned follows logically. To argue otherwise is to drive a wedge between our moral rights and the physical means by which these rights are implemented. If a man chooses to argue for a right, but denies its reality, then he has stepped into an explicit dichotomy between value and facts. The ultimate conclusion is that man has no rights at all. This was best illustrated in Nazi Germany, where businessmen had the "right" to their property, but the state controlled every aspect of its use and disposal, e.g., setting wages, prices, production levels, etc. Thus, in reality, there were no such rights under the Nazis, regardless of the pieces of paper providing for deeds and titles to property. For the same reason, the rights to life and liberty are meaningless words without the right to control and use the tools necessary to protect these values.

In sum, the moral sanction for why man has the right to own firearms is the right to self-defense. Why? Because a man who possesses the right to defend his life must have the right to possess the means for defending that life: weapons.

An interesting question I have heard at this point is whether the right to own firearms is based in man's right to property or man's right to self-defense. This is a false dichotomy. There are no autonomous rights that stand distinct from each other in our conceptual hierarchy. However, in asking which is the essential right in question, the answer is the right to self-defense. The reason is that a right to property would not distinguish between owning a rocket launcher or a handgun, because in principle both are held as property. On the other hand, the right to self-defense does clearly delimit what types of weapons an individual may own within civilized society. Nonetheless, why it is valid to own a handgun, and not a tank or howitzer, is not self-evident. This issue is what I'll address next.

The classic question that I'm certain many people have heard at this stage--especially anyone who has ever spoken with a Libertarian--is typically phrased in the following syllogism: "I have a right to own weapons (in accordance with my right to defend my life), howitzer cannons are weapons, therefore, I have a right to own a howitzer." Beyond the obvious methodological problem of rationalism, this argument represents a serious misunderstanding of the right to self-defense, and the action that this right sanctions.

Rights are moral principles sanctioning man's freedom of action in a social context. The right to property, for example "is the right to gain, to keep, to use, and to dispose of material values." The right to self-defense sanctions only those actions you take at the moment a crime occurs. However, if you take the punishment of the criminal into your own hands subsequent to a crime, then you are a vigilante. Vigilantism is appropriately outlawed in civil society--the power of punishment is rightfully delegated to the government.

With respect to self-defense, the law requires that your action is commensurate with the crime committed against you. For instance, you cannot pull out a shotgun and shoot a man for simply grabbing an orange out of your backpack in the park. You do have the right, however, to chase him down and hold him until the authorities arrive, or to enlist others in your attempt to stop him. The point is: the purpose of self-defense is to stop the crime, not eradicate the world of all criminals. When the crime is not violent or potentially life threatening, then your reaction cannot be violent or life threatening as well. Firearms are thus available for only those times that the nature of the crime is life threatening or violent. Firearms are the best (and sometimes only) means to defend your life and property in these contexts.

Another way to understand the appropriateness of degrees of responses to criminals is to consider the actual way criminals are punished by the government. A pick pocket is not given the same punishment as a murderer or rapist. Why? The severity of the criminal's actions determines the severity of the punishment that he deserves. That is, justice is not a Platonic directive applied irrespective of context. This is operative in all instances of justice, whether rewarding the good or punishing the bad.

Given the principle of self-defense as the moral sanction of owning weapons, one can now distinguish between two general types of weapons: (i) those capable of very limited destruction, and (ii) those capable of mass destruction. Examples of the former are handguns, rifles, and shotguns, and examples of the latter are machine guns, rocket launchers, tanks, bombs, nuclear weapons. Weapons of mass destruction only have a single use: destruction of as many people and as much property as is possible. These weapons are not legitimately owned by private citizens; they are designed for and used in wars between countries. Again, this is a function of only the government--a function which is legitimately delegated to this institution to protect the rights of its citizens on a large scale (such as dealing with Nazi Germany, the Soviet Union, or Iraq).

As such, weapons of mass destruction do not meet the requirements for self-defense. When, for example, is a homeowner ever threatened at 2 a.m. by a regiment of Iraqi tanks, thus requiring the use of anti-tank rockets and grenades? In what alley would a citizen require a machine gun capable of firing 3000 rounds per minute simply to stop a mugger? On the other hand, handguns, rifles, and other types of "small arms" do fulfill the needs of self-defense. That is, the limited need to stop at most a small number of criminals in one's home, business, or neighborhood. It is for this reason that every individual has the right to own such firearms, and use them in the protection of life and property.

It is also important to realize that this is a principle of ownership we are speaking about, and as with all principles, its application is contextual. If a citizen can demonstrate a legitimate need for a weapon that is typically used for mass destruction, then there is no reason why he should not be able to purchase it. For example, a mining company can demonstrate a need for high explosives that a citizen living in New York City has no need for. Texans who live on the border with Mexico could plausibly demonstrate a need to the government to purchase larger-scale machine guns if they had problems with border raids from large gangs of Mexican criminals. Although the government would probably just dispatch troops to the area, if the Texans had a legitimate claim then it is the government's responsibility to ensure that its citizens can adequately protect themselves. The point being that the principle determining private ownership of firearms should never be interpreted as an intrinsicist, dogmatic rule.

Having established the context of the ownership of guns--the right to self-defense and the validity of owning small firearms--the issue of "gun control" can now be fruitfully discussed.

The first step in addressing the topic of gun control is to draw the necessary distinction between contemporary American society and a laissez-faire society based upon a rational philosophy. This distinction is important, because gun control has vastly different implications in either of these societies. In today's society--one that is ruled by pragmatism and collectivism--any initial program of gun control will eventually result in a complete abdication of our rights to gun ownership, and by implication, to self-defense. Observe, for instance, the step-by-step prohibition of semi-automatic rifles over the past few years. First, the federal government banned the production and importation of what it termed "assault rifles." The actual definition of this term is: any firearm that happens to cosmetically look like a military weapon, regardless of its actual function. The full implications of this definition are slowly playing out. The federal government then banned all sales of these "assault rifles" a couple of years later. Then government expanded the number of weapons it included under this term, including some shotguns and rifles commonly used for hunting, because of the arbitrary standard of cosmetics. President Clinton is now pushing for additional restrictions, and the expansion of the powers of the Bureau of Alcohol, Tobacoo and Firearms (BATF) to execute the law. Some recent proposals include the delegation of the "administrative" function of identifying which weapons fall within the government's category of "assault weapons" to the BATF itself. Anyone aware of the extensive abuses of rights perpetrated by the IRS under the rubric of the "administration of the tax code," can only imagine what the BATF can do--and already has done.

Each year, more and more bills are proposed in Congress, calling for such things as the repeal of the Second Amendment, an increase of taxes on ammunition by 10,000%, the outlawing of all 9mm and .45 caliber ammunition sales to private citizens (effectively banning these handguns by default), and the outlawing of all private ownership of handguns. As with the introduction of national health care bills in the early eighties by Ted Kennedy, these anti-gun bills are ominous signs for the laws that will be placed on the books in the coming years. Any restriction of our access to and use of firearms, even such seemingly innocuous acts as national waiting periods, only provide precedent for the further curtailment of our rights in the years to come. This is why I believe that any attempt to expand gun control in the U.S. today must be fought at every step of the way.

In contrast, a rational society is a completely different context with respect to gun control. The society will be far less violent and the government will respect individual rights. The introduction of bills in Congress that call for the prohibition of all firearms or ammunition sales to private individuals would be laughed off the floor, and anti-gunners, such as Sarah Brady or Barbara Streisand, would not be given the time of day by either the press, the government, or the people themselves. Beyond the modicum of gun control that would naturally exist to keep weapons of mass destruction out of private hands, I do not believe that there even would be consideration of the massive regulations and restrictions we are now faced with today. Simply put, gun control in a rational society would not be the moral issue that it is today. It would not exemplify another encroachment upon the shrinking respect for rights that this topic represents today.

But would questions of waiting periods, national registration, or background checks arise in a rational society? I believe that these questions would be considered, and rightly so. Firearms are tools of force, and the government is the institution with a monopoly on the (legitimate) use of force. It is the function of the government to define the legal conditions for when self-defense can be invoked as a sanction of the private use of force, as well as to ensure that weapons are not obtained by criminals. In this vein, I think both registration and background checks would be legitimate laws in a rational, free society. With respect to waiting periods, however, the only justification has been the limitation of "crimes of passion," but there is no evidence that handguns are purchased or even used in a fits of rage as opposed to baseball bats, knives, or other household objects. Thus, I am not inclined to support this proposal even in a free society.

Gun control is clearly an issue that requires a rational legal philosophy. This is not an issue that is self-evident simply given a rational moral and political philosophy. As I have indicated in these posts, it requires a proper understanding of rights, the contextual application of these principles, the integration of the right to self-defense with the observation of different types of weapons, and understanding why certain gun control laws are legitimate (in a free society).

Adam Mossoff, Esq., earned his M.A. in Philosophy from Columbia University, and his J.D. (with Honors) from the University of Chicago Law School.

(Note: I disagree with him on his acceptance of Registration (which serves no purpose but as a prelude to confiscation) and his view that there is no legitimate purpose for civilian ownership of Machineguns. Knob Creek is legitimate reason enough... OI)

[DavidF]

(Note: I disagree with him on his acceptance of Registration (which serves no purpose but as a prelude to confiscation) and his view that there is no legitimate purpose for civilian ownership of Machineguns. Knob Creek is legitimate reason enough... OI)

+1

[Ysabel Kid]

(Note: I disagree with him on his acceptance of Registration (which serves no purpose but as a prelude to confiscation) and his view that there is no legitimate purpose for civilian ownership of Machineguns. Knob Creek is legitimate reason enough... OI)

+1

+2!!!