Indiana University Is Owning a Gun Right Michael Huemer Article Discussion Requirments 1. Excellent explanation of all or almost all of the key points of H

Indiana University Is Owning a Gun Right Michael Huemer Article Discussion Requirments 1. Excellent explanation of all or almost all of the key points of Huemer’s view (questioning the claim that a gun is necessary for physical security by talking about other methods of self-defense and the fact that owning a gun is self-defeating, questioning the claim that the right to own a gun cannot be overridden by raising concerns about general welfare and conflict with the right to a safe environment, recommendations to require demonstration of special need and extensive training course) Requirments 2. Excellent analysis of Huemer’s likely judgment about the proposed laws in the article (consideration of special need for assault weapons, presence of assault weapons conflicting with right to safe environment, red-flag provision connecting to worry about owning a gun being self-defeating) Is There a Right to Own a Gun?
1. Introduction
Gun control supporters often assume that the acceptability of gun control
laws turns on whether they increase or decrease crime rates. The notion
that such laws might violate rights, independently of whether they decrease crime rates, is rarely entertained. Nor are the interests of gun owners in keeping and using guns typically given great weight. Thus, a colleague who teaches about the issue once remarked to me that from the
standpoint of rights, as opposed to utilitarian considerations, there wasn’t
much to say. The only right that might be at stake, he said, was “a trivial
right—’the right to own a gun’.” Similarly, Nicholas Dixon has characterized his own projjosed ban on all handjuns as “a minor restriction,”
and the interests of gun owners in retaining their weapons as “trivial”
compared to the dangers of guns.’
I believe these attitudes are misguided. I contend that individuals have
a prima facie right to own firearms, that this right is weighty and protects
important interests, and that it is not overridden by utilitarian considerations. In support of the last point, I shall argue that the harms of private
gun ownership are probably less than the benefits, and that in any case,
these harms would have to be many times greater than the benefits in
order for the right to own a gun to be overridden.
2., Preliminary Remarks about Rights
2.1. Assumptions about the Nature of Rights
I begin with some general remarks about the moral framework that I presuppose. I assume that individuals have at least some moral rights that
are logically prior to the laws enacted by the state, and that these rights
place restrictions on what sort of laws ought to be made. I assume that
we may appeal to intuitions to identify some of these rights. An example
‘Nicholas Dixon, “Why We Should Ban Handguns in the United States,” St. Louis
Untversiiy Public Law Review 12 (1993): 243-83, pp. 283, 244,
© Copyright 2003 by Social neory and Praaice, Vol. 29, No. 2 (April 2003)
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is the right to be free from physical violence: intuitively, it is, ceteris
paribus, wrong for people to do violence to one another, and this limits
what sort of laws may, morally, be made—it explains, for instance, why
the state ought not to pass a law according to which a randomly chosen
person in each district is flogged each week.
I further assume that we normally have a right to do as we wish unless there is a reason why we should not be allowed to do so—and hence
that someone who denies our right to act in a particular way has the dialectical burden to provide reasons against the existence of the right in
question. In contrast, one who asserts a right need only respond to these
alleged reasons.”
What sort of reasons would show that we have no right to engage in a
particular activity? Consider three relevant possibilities:
(i) Plausibly, we lack even a prima facie right to engage in activities
that harm others, treat others as mere means, or use others without their
consent. Thus, I have no claim at all (as opposed to having a claim that is
outweighed by competing claims) to be allowed to beat up or rob other
people.
(ii) Perhaps we lack a prima facie right to engage in activities that,
even unintentionally, impose high risks on others, even if those risks do
not eventuate. If my favorite form of recreation involves shooting my
gun off in random directions in the neighborhood, even if I am not trying
to hit anyone, my would-be right to entertain myself is at least overridden, but perhaps wholly erased, because of the danger to others.
(iii) Perhaps we lack a prima facie right to engage in activities that
reasonably appear to evince an intention to harm or impose unacceptable
risks on others. For example, I may not run towards you brandishing a
sword, even if I do not in fact intend to hurt you. The principle also explains why we punish people for merely attempting or conspiring to
commit crimes.
There may be other sorts of reasons for excepting an activity from the
presumption in favor of liberty. The above list, however, seems to exhaust the reasons that might be relevant to the existence of a right to own
a gun. I assume, in particular, that the following sort of consideration
would not suffice to reject a prima facie right to do A: that a modest statistical correlation exists between doing A and engaging in other, wrongful activities.^ Thus, suppose that people who read the Communist
^See Joel Feinberg, ffarm to Others: The Moral Limits of the Criminal Law (Oxford:
Oxford University Press, 1984), p. 9, on the “presumption in favor of liberty.”
^It may, however, provide grounds for overriding the prima facie right to do A; see
below, §2.2.
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Manifesto are slightly more likely than the average person to attempt the
violent overthrow of the govemment. (This might be because such people are more likely to already have designs for overthrowing the government, and/or because the reading of the book occasionally causes
people to acquire such intentions.) I take it that this would not show that
there is no prima facie right to read the Communist Manifesto—though
perhups the situation would be otherwise if the reading of the Manifesto
had a very strong tendency to cause revolutionary efforts, or if the occurrence of this effect did not depend on further free choices on the part of
the reader.
2.2. What Sort of Right Is the Right to Own a Gun?
First, I distinguish heWeen fundamental and derivative rights. A right is
derivative when it derives at least some of its weight from its relationship
to another, independent right. A right is fundamental when it has some
force that is independent of other rights. On these definitions, it is possible for a right to be both fundamental and derivative. Derivative rights
are usually related to fundamental rights as means to the protection or
enforcement of the latter, though this need not be the only way in which
a right may be derivative. I claim that the right to own a gun is both fundamental and derivative; however, it is in its derivative aspect—as derived from the right of self-defense—that it is most important.
Second, I distinguish between absolute and pritna facie rights. An
absctee right is one with overriding impon;ance, such that no considerations can justify violating it. A prima facie right is one that must be given
soirie weight in moral deliberation but that can be overridden by sufficiently important countervailing considerations.” Thus, if it would be
perrnissible to steal for sufficiently important reasons—say, to save
someone’s life—then property rights are not absolute but at most prima
facie. It is doubtfol whether any rights are absolute. At any rate, I do not
propose any absolute rights; I argue only that there is a strong prima facie right to own a gun.
It is important to distinguish cases in which a prima facie right is
overridden from cases in which we have exceptions to a generalization
about what one has a right to. Speaking metaphorically, the difference is
between removing something from the moral scale, and placing something heavier on the opposite side of the scale. To illustrate the distinction: assume that it is morally permissible to kill an aggressor in self*Compare W.D. Ross’s notion of “prima facie duties” in Tne Right and the Good
(Indianapolis: Hacketi, 1988), pp. 19-20, but note that, contrary to the impression created
by the comparison with Ross, as I use the term, a prima facie right is a genuine right,
albeit of limited weight, not oiereiy something that is usually a right.
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defense. This might be permissible in virtue of an exception to the right
to life (the aggressor temporarily loses his right not to be killed by his
intended victim), rather than because the aggressor’s right to life is overridden. This is plausible since the permissibility of self-defense killing
does not depend upon the defender’s having either a stronger right to life
or a more valuable life than the aggressor.^ In contrast, suppose it is permissible to kill an innocent person to save the lives of 1000 others. Plausibly, this is a case of the overriding of the first individual’s right to life,
rather than an exception to his right to life. In the second case but not the
first, we would still say that the person killed had his rights violated.
Thus, the sort of reasons discussed in §2.1 for refusing to recognize a
prima facie right to engage in an activity do not exhaust the possible reasons for not allowing a given activity. If none of the former sort of reasons applies to a given activity, then there is a prima facie right to engage
in the activity, but that right could still be overridden by countervailing
reasons.
2.3. Weighing Rights
The more weight a right has, the more serious its violation is and the
more difficult it is to override the right. I assume three broad principles
about the weighing of rights.
First: Ceteris paribus, the weight of a fundamental right increases
with the importance of the right to an individual’s plans for his own life
or other purposes. This is not to say that every action that interferes with
an individual’s aims is a rights violation, but only that if sn action violates rights, it does so more seriously as it interferes more with the victim’s aims.
On some theories of self-interest, one’s purposes may diverge from
one’s interests.* In such a case, I maintain that the weight of a right
should be at least partly determined by the rights-bearer’s aims, and not
^Compare Judith Jarvis Thomson’s objections to the overriding theory in “SelfDefense and Rights,” in Rights, Restitution, and Risk (Cambridge, Mass.: Harvard University Press, 1986), pp. 42-44. Of the views of self-defense that Thomson discusses, the
“factual specification” view is closest to mine; however, rather than saying that one
doesn’t have a right to life, I prefer to say one has a “ceteris paribus” right to life (other
things being equal, it is wrong of others to kill one). The difficulty Thomson raises (pp.
38-39) with specifying all of the exceptions is inconclusive, since ceteris paribus clauses
are common in philosophical and other principles, and we rarely expect to list all exceptions.
‘See Derek Parfit’s discussion of the Desire-Fulfillment Theory, the Hedonistic Theory, and the Objective List Theory, in Reasons and Persons (Oxford: Clarendon Press,
1987), p. 4. The latter two allow for interests that diverge from an individual’s purposes.
Is There a Right to Own a Gun?
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merely by the rights-bearer’s actual interests.^ Consider an example to
motivate this view: imagine a proposed law forbidding all homosexual
relationships. Suppose its proponents argue that the law is at most a trivial rights violation, because homosexual relationships are morally bad, so
homosexuals are mistaken in believing that they have a positive interest
in such relationships.* Without entering into a debate conceming the
value of homosexuality, we can say that intuitively, the proponents’ argument is invalid: the law would seem to be a major restriction of the
civil liberties of homosexuals, regardless of whether homosexuality is
healthy or virtuous.’ This is best explained by the hypothesis that rights
function to guard individuals’ autonomy, that is, their ability to pursue
their plans for their own lives, rather than to protect their interests as assessed from a third-person point of view.
Second: In the case of a derivative right, the seriousness of its violation is proportional to the importance of the other right that it subserves.
Thus, a derivative right that functions to protect the right to life is more
important, other things being equal, than one that protects the right to
property.
Third: The seriousness of a violation of a derivative right also depends upon how important the derivative right is to the other right that it
subserves. For example, censorship of books criticizing the govemment
would be a more serious violation of free speech than censorship of porncgTaphic material, because the ability to publish political criticism is
more important to protecting other rights than the ability to publish pornography.
A serious rights violation, then, is not the same thing as a violation of
an important right. One might violate an important right but in a trivial
way, creating an only moderately serious rights violation. The most serious rights violations will be those that are major violations of important
rights.
‘ lliis coPxtrasts with the view suggested by Todd Hughes and Lester Hunt, “The Liberal Basis of the Right to Bear Arms,” Public Affairs Quarterly 14 (2000): 1-25, p. 7:
“Suppose that the strength of the grounds for recognizing a right are proportionate to the
importance of the human interests protected by it.” Bat note that the argument they make
in that passage succeeds equally well on my conception of rights.
‘Tnis inference is questionable; perhaps a person can have an interest in something
that is morally bad. But suppose the proponents argue that this is not the case here, perhaps because one has an overriding interest in being virtuous.
‘Tne point of the example may be obscured by one’s disbelief in the antihomosexjals’ premise. But one can find examples of couples (whether homosexual or
heterosexual) whose relationships are emotionally harmfjl to themselves, and I take it
that even in such cases, forcible interference with such relationships would be a nontrivial
rights violation.
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3. Is There a Prima Facie Right to Own a Gun?
Given the presumption in favor of liberty, there is at least a prima facie
right to own a gun, unless there are positive grounds of the sort discussed
in §2.1 for denying such a right. Are there such grounds?
(i) Begin with the principle that one lacks a right to do things that
harm others, treat others as mere means, or use others without their consent. It is difficult to see how owning a gun could itself be said to do any
of those things, even though owning a gun makes it easier for one to do
those things if one chooses to. But we do not normally prohibit activities
that merely make it easier for one to perform a wrong but require a separate decision to perform the wrongful act.
(ii) Consider the principle that one lacks a right to do things that impose unacceptable, though unintended, risks on others. Since life is replete with risks, to be plausible, the principle must use some notion of
excessive risks. But the risks associated with normal ownership and recreational use of firearms are minimal. While approximately 77 million
Americans now own guns,”‘ the accidental death rate for firearms has
fallen dramatically during the last century, and is now about .3 per
100,000 population. For comparison, the average citizen is nineteen
times more likely to die as a result of an accidental fall, and fifty times
more likely to die in an automobile accident, than to die as a result of a
firearms accident.”
(iii) Some may think that the firearms accident statistics miss the
point: the real risk that gun ownership imposes on others is the risk that
the gun owner or someone else wiil “lose control” during an argument
and decide to shoot his opponent. Nicholas Dixon argues: “In 1990,
34.5% of all murders resulted from domestic or other kinds of argument.
Since we are all capable of heated arguments, we are all, in the wrong
circumstances, capable of losing control and killing our opponent.”‘^ In
‘^Surveys indicate that about half of American men and a quarter of women own
guns. See Harry Henderson, Gun Control (New York: Facts on File, 2(X)0), p. 231; John
Lott, More Guns, Less Crime, 2nd ed. (Chicago: University of Chicago Press, 2000), pp.
37,41.
“National Safety Council, Injury Facts, 1999 Edition (Itasca, 111.: National Safety
Council, 1999), pp. 8-9, 44-45; National Safety Council, “Odds of Death Due to Injury,
United States, 1998” (URL: http://www.nsc.org/lrs/statinfo/odds.htm, accessed 22 May
2002). This is overlooking the fact that most of these accidental deaths would presumably
happen to the gun owner himself; if we counted only accidental deaths of others, the rate
would presumably be much lower.
‘^Dixon, “Why We Should Ban Handguns,” p. 266. Similarly, Jeff McMahan (unpublished comments on this paper, 7 January 2002) writes that “most [murders] occur
when a perfectly ordinary person is pushed over a certain emotional threshold by an unusual concatenation of events.”
Is There a Right to Own a Gun?
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response, we should first note the invalidity of Dixon’s argument. Suppose that 34.5% of people who mn a 4-minute mile have black hdr, and
that I have black hair. It does not follow that I am capable of running a 4minute mile. It seems likely that only very atypical individuals would
respond to heated arguments by killing their opponents. Second, Dixon’s
aiid McMahan’s claims are refuted by the empirical evidence. In the
largest seventy-five counties in the United States in 1988, over 89% of
adult murderers had prior criminal records as adults.’^ This reinforces the
common sense view that normal people are extremely unlikely to commit
a murder, even if they have the means available. So gun ownership does
not typically impose excessive risks on others.
(iv) Consider the idea that individuals lack a right to engage in activities that reasonably appear to evince an intention to harm or impose
unacceptable risks on others. This principle does not apply here, as it is
acknowledged on all sides that only a tiny fraction of America’s 77 million gun owners plan to commit crimes with guns.
(v) It might be argued that the total social cost of private gun ownership is significant, that the state is unable to identify in advance those
persons who are going to misuse their weapons, and that the state’s only
viable method of significantly reducing that social cost is therefore to
prevent even noncriminal citizens from owning guns. But this is not an
argument against the existence of a. prima facie right to own a gun. It is
just HB argument for overriding any such right. In general, the fact that
restricting an activity has beneficial consequences does not show that no
weight at all should be assigned to the freedom to engage in it; it simply
shows that there are competing reasons against allowing the activity.
(Compare: suppose that taking my car from me and giving it to you increases total social welfare. It would not follow that I have no claim a: all
on my car.)
It is difficult to deny the existence of at least a prima facie right to own a
gun. But this says nothing about the strength of this right, nor about the
grounds there may be for overriding it. Most gun control advocates
would claim, not that there is not even a prima facie right to own a gun,
but that the right is a minor one, and that the harms of private gun ownership, ill comparison, are very large.
‘^Lott, More Guns, p. 8; U.S. Department of Justice, “Bureau of Justice Statistics
Special Reports: Murder in Large Urban Counties, 1988” (Washington, D.C.: U.S. Govemment Printing Office, 1993); U.S. Department of Justice, “Bureau of Justice Statistics
Special Reports: Murder in Families” (Washington. D.C.: U.S. Govemment Printing
Office, 1994).
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4. Is the Right to Own a Gun Significant?
I shall confine my consideration of gun control to the proposal to ban all
private firearms ownership.’** This would violate the prima facie right to
own a gun. I contend that the rights violation would be very serious,
owing both to the importance of gun ownership in the lives of firearms
enthusiasts, and to the relationship between the right to own a gun and
the right of self-defense.
4.L The Recreational Value of Guns
The recreational uses of guns include target shooting, various sorts of
shooting competitions, and hunting. In debates over gun contro…
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