Gun Rights as Deontic Constraints
Here, I rebut objections to my earlier-stated case for gun rights ("Is There a Right to Own a Gun?"). My critics misunderstand how rights work.*
[ *Based on: “Gun Rights as Deontic Constraints,” Social Theory and Practice 45 (2020): 601-12. ]
1. Background
The case for gun rights
Elsewhere, I argued that private citizens have a right to own a gun. This stems from the right of self-defense. Some people advocate that the state prohibit all private gun ownership (see Jeff McMahan), while others would only prohibit handguns (see Nicholas Dixon). However, this would prevent some citizens who otherwise would have used a gun to defend themselves from criminals from doing so, with the result that these individuals would be robbed, injured, raped, or murdered.
Forcibly interfering with someone’s self-defense efforts, in a way that predictably leads to their suffering a crime, is morally comparable to committing that crime against them; it makes one an accomplice to the crime. But there are strong, deontological constraints against robbing, injuring, raping, or murdering people. The state would not be justified, for example, in murdering some number of citizens, even if doing so would somehow save a larger but comparable number of people. Similarly, it would be wrong for the state to ban private gun ownership, even if doing so would save a comparable but larger number of people.
The total risk argument
Critics (McMahon and Dixon) have objected to my argument in two ways. First: the right of self-defense is purely derivative from the general right to security. But allegedly, gun control increases everyone’s overall security.
Note: This is probably actually false. See discussion below. But let’s pretend for a moment that we think they decrease crime.
As long as the state does not know in advance which specific individuals are going to suffer crimes as a result of a gun ban, and as long as the overall crime rate goes down, the risk of suffering crime goes down for each individual. Therefore, everyone’s right to security is respected.
The right to be free from gun violence
Second: People have a right to be protected from gun violence. So the failure to enact gun control also violates people’s rights. That counterbalances the alleged right to own a gun.
2. Empirical Background
Do gun control laws make people safer or less safe?
For gun control
Generally, countries with lower gun ownership rates and stricter gun laws tend to have lower homicide rates, within the group of Western, liberal democracies. The U.S. is an outlier, with very high gun ownership rates, permissive laws, and high homicide rates.
Critics object to these comparisons on the grounds of small sample sizes, lack of controls, and possible confounds. The U.S. may have unique cultural factors. If you just look at jurisdictions within the U.S., those with higher gun ownership rates and more permissive laws tend to have lower crime rates. However, these results too could have confounds.
Against gun control
Most gun rights advocates believe that strict gun control laws in the U.S. would increase crime rates. Some cite surveys which suggest that guns are used for self-defense against criminals millions of times per year. Critics worry that these surveys might suffer from overreporting; in general, rare events are easy to overestimate.
Some cite statistical evidence suggesting that the adoption of more permissive laws regarding concealed weapons has resulted in drops in crime rates. The theory is that some criminals are deterred by the fear of encountering armed victims. However, there is no general agreement on the assessment of this evidence.
Gun rights advocates often argue that gun control laws are most likely to be obeyed by ordinary citizens but ignored by the criminals; thus, the effect is to leave criminals armed while disarming their victims — the worst possible situation.
Since gun prohibition laws violate rights and it’s overall not even clear that they would reduce crime rather than increasing it, such laws are unjustified.
3. Why Deontology
Consequentialists believe that we should always do whatever promotes the best consequences overall; thus, they think it is acceptable to sacrifice some people to produce a larger benefit for others. E.g., one could murder someone to prevent 2 murders, etc.
Deontologists reject this. They typically think that it is wrong to sacrifice an innocent person, even when doing so produces larger (but comparable) benefits for others. Often, this is phrased in terms of individuals having “rights”; sometimes, we just say there is a moral constraint against harming individuals.
Why be a deontologist? Consider this famous example from ethics:
Framing: You are the sheriff in a town where a recent crime has caused great public outrage. You know that unless someone is punished, there will be riots, during which multiple innocent people will be unjustly injured and possibly killed. You can’t find the actual perpetrator; you can, however, frame an innocent person, which will cause that person to be seriously and unjustly punished but will forestall the riots. Should you frame the innocent?
Almost everyone intuitively answers “no”. This supports deontological ethics, as against consequentialism. There are many other examples like this.
4. The Right to Be Protected from Guns
It is plausible to hold that we have a right to be protected by the government from gun crimes (and other crimes). Why does this not counter-balance the (alleged) right to own a gun? If the government prohibits guns, perhaps that will violate rights, but if the government fails to prohibit guns, then that will also violate citizens’ rights since the government will then be refusing to protect them from gun violence.
Indeed, we have some sort of right to be protected by the government. This is created by the fact that we hired the government to do that, that they are forcibly collecting money from us for that purpose, etc. So they are obligated to do it.
However, this obligation is itself constrained by other people’s pre-existing rights (which cannot be suspended merely by our hiring the government to do so). Consider the Framing example above. The sheriff has a general obligation to protect the town from riots. Nevertheless, he may not do so by violating the right of an innocent person not to be unjustly punished.
Another way to think of it is that the right to be protected is only a right to be protected in certain ways, not including ways that violate other people’s pre-existing negative rights. Hence, the townsfolk have no right to be protected from riots via the framing of an innocent person.
Similarly, though the state has a duty to protect us from gun violence, it may not do so by violating the rights of innocent gun owners. Citizens have no right to protected via the violation of other citizens’ pre-existing negative rights.
5. The Risk-Reduction Argument
Maybe gun control laws reduce the overall risk of crime victimization that each citizen bears and therefore satisfy everyone’s general “right to security”.
But of course that’s false. Consider the case of the woman who wants to buy a gun to protect herself from her mentally unstable, estranged ex-husband. He outweighs her by 70 pounds, and he has abused her before. She has no hope of defending herself using her own strength; she needs a gun. If neither she nor the ex-husband are allowed to buy a gun, they won’t both be safe; rather, she will be at his mercy. No one could seriously claim that this individual is rendered overall safer by gun control.
This is hardly an outlandish scenario. Many Americans are in positions like that. That is precisely the kind of situation that makes a person want to buy a gun for self-defense. The police cannot or will not protect you in such a situation; indeed, they themselves may tell you to buy a gun.
Dixon and McMahan’s mistake is to think about society at large, not the individual; they think that if society is overall safer, there’s no problem. But rights are individual. To claim that gun control doesn’t violate rights, one would have to claim that each individual is rendered safer.
[ Another problem is that the risk-reduction argument does not seem to work if we rephrase the original case for gun rights (as suggested in sec. 1 above) in terms of the state’s becoming an accomplice to crime: by preventing individuals from defending themselves from certain crimes, the state becomes an accomplice to those crimes, which is morally comparable to committing the crimes. ]
Maybe they would argue that since the state does not know which individuals will become crime victims as a result of the gun ban (nor do they know, e.g., who has a violent ex-husband), from the state’s point of view, each individual’s risk will go down. However, I find it super-implausible that the state’s knowledge could be morally relevant in this way.
In the Framing example above (sec. 3), imagine this modification: suppose the sheriff is planning on framing the person (whoever it is) who owns the car with license plate E71 41A. Again, assume that this will prevent the riots. It is super-implausible to claim that the sheriff may do this as long as he doesn’t yet know who the owner of that license plate is, but may not do it if he knows. (If you think that, try saying how much the sheriff may know about the car-owner before it becomes impermissible to frame that person. What if he knows the first but not last name of the person? What if he has seen a blurry photograph of the person? Etc.)
6. Conclusion
Gun prohibition would violate individual rights and make the state an accomplice to many crimes every year. It is not justified by the state’s general obligation to protect individuals from gun violence, since the state’s positive duty to protect individuals is constrained by everyone’s negative rights. It also is not justified by the argument that it renders everyone safer, since many specific individuals would obviously be put at greater risk. So gun prohibition remains overall unjustified.