Friday, June 27, 2008

Heller and the right to bear arms

By Donald Sensing

I originally wrote this essay in 2002 in response to another blogger's dismay that the Bush administration was defending in federal court the Second Amendment as protecting the right of individual Americans to own firearms. My original title was, "Civilization, Violence, Sovereignty and the Second Amendment: Why the right to keep and bear arms is the fundamental right of a sovereign people." The other blogger held that keeping guns away from ordinary people was "the dividing line of civilization." I've herein removed references to the other blog and offer it now simply as a reflection on what's at stake regarding the right of individuals to keep and bear arms. This edit springs from Joe Katzman's essay at Winds of Change, "Zimbabwe Changed My Mind: Guns Are A Human Right." Links were good at the time of writing. I repost it in reaction to the Heller decision of the US Supreme Court, released this week, affirming that the Second Amendment protects the right of individual Americans to keep and near arms.

I think the fundamental dividing line of civilization is whether sovereignty resides in the people or in the government. Sovereignty means the source of authority in the state. Americans see the people as the only legitimate source of political legitimacy. In the United States, the state's authority lies in the voters. In America, the state apparatus grants no rights at all to the people because the government has no rights to grant. All rights reside in the people to begin with. The American founders understood that human rights are simply a fact of human existence.

Therefore, in America, the people grant powers to the government, but no rights. Yet, sadly, I still hear in conversation with my fellow Americans statements such as, "The First Amendment gives us free speech." In fact, the First Amendment, the Bill of Rights, and the Constitution as a whole give or grant no rights at all: all rights automatically are always held by the people in the first place. The Bill of Rights was intended to restrict the power of the government -- to make darn sure that government apparatchiks didn't step on the rights of the people.

That is as clear a "dividing line" of civilization as is ever going to be found. If indeed the ultimate authority of the state is to be found in the people (as a condition of nature, as the Founders understood), then the people must also have the ultimate power to protect their sovereignty. That means, bluntly, the power of coercion. And coercion necessarily includes the use of violence.

In fact, civilization's very existence rests on coercion. Mahatma Gandhi explicitly recognized this fact. His struggle was not whether the state (that is, Britain) should use force, but whether it was justly using force. Christian philosopher-ethicist Jacques Ellul in writing about violence observed, "Violence is to be found everywhere and at all times, even where people pretend that it does not exist. . . every state is founded on violence and cannot maintain itself save by and through violence."
Ellul disagrees with the the classic distinction between violence and force: it's lawyers who have invented the idea that when the state uses coercion, even brutally, it is exercising "force" and that only individuals or nongovernmental groups use violence. All states are established by violence. A government stays in power by violence or its threat and the threat is meaningless unless it can be and is employed. "Everywhere we turn," writes Ellul, "we find society riddled with violence. Violence is its natural condition, as Thomas Hobbes saw clearly."

If you don't believe this, try not paying your taxes. The government will treat you with violence. We obey the law because fundamentally the state compels us to obey it with violence or the threat thereof.

When sovereignty resides in the people, there is a self-check on state power. Sometimes this self-check does not seem very strong, but in the end it always prevails unless the people surrender their sovereignty. (Remember, the Germans elected Hitler dictator, and it was the last decision they got to make for many long, bloody years.)

The Founders clearly understood something: a people armed are much less likely to surrender their sovereignty than otherwise. If necessary, an armed people can defend their rights by wielding the ultimate power of sovereignty, violence. It may be defense against a foreign invader (which in the Founders' day was a quite real threat) or it may be against a sovereignty-grabbing domestic government, which the Federalist Papers show was of even greater fear to the Founders than foreign invasion. In either case, the ability of the people themselves to exercise the ultimate state power was crucial. That was why the Second Amendment insists that the people are the militia: an armed people are the sovereign state.

Of course, we have come a long way since a yeoman farmer could grab old Betsy off the mantle and go redcoat hunting. The threat of foreign invasion is nil, although the threat of terrorism in the US by foreign powers is real. Even so, few kinds of potential terrorist acts here will likely be the kind that armed citizens will be able to stop. Many Israeli citizens go armed, but terrorism there continues. So the present crisis does not, in my view, buttress much the argument for the right of individual citizens to be armed, except perhaps obliquely.

A much greater and more insidious threat to popular sovereignty is the swallowing of sovereign authority and power by the federal, state or local governments. This danger remains real (heck, it's going on!) but it is a topic for another post.

It has been said that the only thing necessary for evil to triumph is for good people to do nothing. There is a third way for the people to surrender their sovereignty. It is by failing to resist those who act destructively toward the common welfare of the people. In terms of the founding documents, there are people among us who deliberately damage the ability of the people to pursue happiness, live their lives in liberty, "form a more perfect union, establish justice, insure domestic tranquility . . . promote the general welfare, and secure the blessings of liberty" for themselves and their posterity.

We call them criminals. Many are violent. If the sovereign people surrender their freedom to live in peace, pursuing happiness by peaceful, lawful means, they have surrendered their sovereignty. They are no longer free. Only if the people are armed can this surrender be avoided. This a lesson that Great Britain and Australia are bitterly learning now. Having disarmed their people about five years ago (because the people there are subjects, not sovereigns), they now discover that criminal violence against persons and property is way up. (See here and here. )

Twenty-six percent of English citizens -- roughly one-quarter of the population -- have been victimized by violent crime. Australia led the list with more than 30 percent of its population victimized. The United States didn't even make the "top 10" list of industrialized nations whose citizens were victimized by crime. (citation)
Do not count on the police to maintain domestic tranquility in the final analysis. Their role is certainly important in enforcement, but they are reactive. They do not generally stop criminals; they apprehend them. As the saying goes, "When seconds count, the police are only minutes away." But no criminal actually believes he will be caught, else he would not commit the crime.

Furthermore, there is no moral difference between the homeowner who protects his life or property with a gun and one who does not but summons a police officer. If the police arrive on time (problematic), they use violence or its threat to protect the law-abiding. The unarmed homeowner has merely "outsourced" his wielding of deadly force or the threat of it.

I have heard this point in rebuttal to Second Amendment rights: "I don't understand why anyone would want to own a gun. Guns are not fun; they are not macho . . . "

Well, I have just explained keeping arms is a fundamental right of sovereignty and the means of retention thereof, including for self defense. Self defense is a very powerful incentive to want a gun. As the old western saying went, "God made some men big and some little, but Colonel Colt made them all the same size." Hence the original six-shooter's nickname, The Equalizer. However, guns are also implements of sport. Rifle, pistol and shotgun shooting are Olympic events. And shooting sports are, well, sports.

"Guns are not fun, they are not macho. . ." No, toys are fun, and guns are not toys. That's why I never permitted my kids to play with toy guns. "Toy guns" is an oxymoron. But a basketball is not "fun," either; it is the basketball game that is fun. Similarly, a sporting firearm, by itself, is not fun, but shooting sports are fun - not the laugh-out-loud, clap-your-hands- kind of fun, but the fun that comes from honing a physical skill and performing it expertly. Some people don't enjoy shooting sports, but millions do. Shall the gun-control curmudgeons have the right to deny me my sport?

I have heard some of my friends tell me yes. Only they put it this way: "No one really needs a gun." Well, that's false; re-read what I wrote above. But more frightening is the notion that we should define our freedoms based on what we think someone else "needs" to do. One lady told me, "No one needs an AK-47 to hunt deer." Well, yes, that's true, and in fact an AK-47 would be a rather miserable hunting gun. But freedom is not about what we "need," is about being able to do what we want. And if someone wants to hunt with an AK-47, then as misguided as that is, gun-wise, he should be able to do so. After all, we have in our Constitution a Bill of Rights, not a "Bill of Needs."

Look at it this way: no one needs a BMW or a Cadillac. A Chevy will do just as well. People buy a luxury auto not because they need it over a Chevy but because they want it. No other reason.

As for the "macho" bit, this is a non-sequitur. Personally, I don't feel more manly on the firing range. If manliness was the issue, I would not be teaching my wife and daughter to shoot, lest their skills threaten my macho image (and my wife is a good shot).

But maybe there are some men who doubt themselves, who think that a gun compensates for their perception of lack of manliness. So what? The issue is not what they think of their firearm, or what it may do to their self-image, but only - only - whether they use it safely and lawfully. There is no other issue involved. "Machismo" as a criticism of gun ownership is a patriarchal argument anyway, since it inherently fails to account for ownership of guns by women.

Let me make this point again. It's important. The freedom of a sovereign people does not spring from having or doing only what they "need," but being able to do and have what they want.

The "need" of a gun for self defense is real and legitimate, more so for some people than others. But my "want" for a gun for recreation and sport is also legitimate and cannot be obviated without making me less free.

Another criticism: "guns are dangerous. They kill people." I am reminded of Robert Heinlein's observation, "There are no dangerous weapons, only dangerous men." (Yes, women, too.) Guns are not dangerous. Criminals are dangerous. Terrorists are dangerous. People handling firearms unsafely are dangerous. And guns commit no crimes nor accidents. I have, as a sheriff's department volunteer, been to many fatal scenes of auto accidents, but I do not say, "look what the cars did," because the car didn't do it. The drivers did.

It is a legitimate concern that others who own guns handle them safely. Yet this concern needs to be put into context with other risks we all run every day. According to the NHTSA,

-- 4,739 pedestrians were killed in motor vehicle accidents in 2000, and another 78,000 were injured. On average, a pedestrian is killed every 111 minutes, and one is injured every seven minutes.

-- In 2000, there were 5, 915 occupational fatalities, according to the Bureau of Labor Statistics.

-- In 2000, there were 600 accidental gun deaths, according to the National Safety Council (cited in Sports Afield.) This number was "25% fewer than in 1999, reflects a 58% drop since 1990, and is the lowest number of fatalities reported since records were first kept in 1903."

My question is this: how are firearms themselves fearful? Guns are not fear-worthy, only shooters are. An average American is 10 times more likely to die on the job than from an accident involving his neighbor's guns - or anyone else's. In fact, according to the NSC tables, a person has one chance in 1.92 million of dying by a handgun this year (including by murder, not just accident) which is 2.5 times less than dying from taking a bath. From the accident and safety standpoint, firearms ownership is one of the safest things Americans do. The chances of dying by means of long guns are several multiples lower than by handgun.

If a person fears the possibility of gun accidents, then that person should consider why the fatality rate from firearms continues to decline:
"Much of the credit,” notes Bob Delfay, president and CEO of the National Shooting Sports Foundation (NSSF), “goes to the thousands of volunteers in hunter safety education, the National Rifle Association, Boy Scouts and 4-H firearm safety instruction who are making a positive contribution to increased safe ownership of firearms and enjoyment of the shooting sports.”
Those who fear gun accidents should consider aiding this effort. They should become safety certified by the National Rifle Association and teach firearms safety. Or they can coordinate with their sheriff's department for a deputy to teach classes in various venues. I think that firearms safety should be taught in middle school - a mandatory class, with alternate-year refresher sessions through high school  (safety classes, not shooting).

In general terms, I think that most of the opposition to keeping and bearing arms by ordinary citizens springs from non-rational bases. I didn't say irrational, as in crazy, I said non-rational. The desire to eliminate firearms from American's hands is for many people a emotive reaction rather than a thoughtful one. Education and experience will overcome this, just as education and experience overcame the non-rational fear people used to have of AIDS and AIDS victims.

But I think that others, mostly the various gun-control groups, really just can't stand freedom exercised by others. They want to live their lives a certain way and make sure that everyone else does, too. They seek a highly ordered, regimented society made up of people just like them. This desire to control others is pernicious and dangerous. They are "invincibly ignorant" in their campaigns because the actual facts about guns in America mean nothing to them. They simply do not want you or me to own a gun, period, no matter for what reason. They do not want us to be free and sovereign.

As for licensing and basic government control -- I oppose licensing and basic government control because -- am I getting the message through here? -- I am sovereign in America, not the government, and I do not permit the government to regulate my sovereignty.

Experience in Britain and Australia proves that "licensing and basic government control" don't prevent firearms murders. All three nations have draconian firearms restrictions and controls, but in the first two nations, illegal gun violence has risen directly as legal gun ownership has been oppressed.


RP said...

Great article, well-argued!

Bruce said...

Well done. I've been a big fan of the "surrender of of personal sovereignty" argument for gun ownership for quite a while.