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The Right to Self-Defense Against the State

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Abstract

The Second Amendment is accepted as protecting a right, but it is commonly accepted that the right is not unrestricted. I will explore the most commonly suggested restrictions proposed by gun control advocates and show why these restrictions to the Second Amendment are unjustifiably high, especially when compared with restrictions we accept for other Constitutional rights. I argue that these restrictions violate a central function of the Second Amendment—to enable the people to protect themselves against a tyrannical government. The three restrictions I will be discussing are: (1) licensing requirements for gun ownership, (2) gun tracing with a national database of gun owners, and (3) concealed carry restrictions.

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Notes

  1. Huemer 2003. Huemer provides the understanding of derivative rights as “usually related to fundamental rights as means to the protection or enforcement of the latter” (p. 299). A fundamental right is the same as a basic right.

  2. Dixon 1993, pp. 243–83.

  3. McMahan 2012.

  4. LaFollette 2000, p. 264, emphasis in original.

  5. It could be argued that staying alive is not everyone’s most fundamental interest. There are people who are suicidal whose interest would be the opposite. This isn’t a problem for my argument though. A basic right to self-defense doesn’t preclude suicidal people from ending their lives.

  6. The power and privileges vary widely and are dependent upon the individual’s position. I acknowledge that not all government positions would be equally susceptible to corrupt or immoral action, and even individuals who are in an ideal position to take advantage of government power or privilege would not necessarily do so.

  7. Rummel 1994.

  8. Ibid., p. 31. Rummel also provides definitions for genocide, politicide, and mass murder. These definitions and a fuller definition of democide are provided on pp. 36–8.

  9. Ibid. See Rummel pp. 1–27 for additional data and figures that support this number. The Black Book of Communism estimates that nearly 100 million people were killed by communist regimes during the twentieth century (see p. 4 for a breakdown of the estimates by regime).

  10. Rummel., p. 3.

  11. Ibid., p. xvi.

  12. Ibid., p. 19.

  13. Ibid., p. 14.

  14. Ibid., pp. 22–3.

  15. Ibid., p. 27.

  16. I would like to thank an anonymous reviewer for this suggestion.

  17. I discuss this power dispersal later in section 5.1 of the paper when I discuss the equalization of force objection.

  18. Halbrook and Kopel 1999, p. 398.

  19. Kates Jr 1994, p. 361.

  20. Coxe 1789. Coxe wrote under the pseudonym “A Pennsylvanian,” and this statement appeared in the Federal Gazette and Philadelphia Evening Post in a section titled, “Remarks on the first part of the Amendments to the Federal Constitution.”

  21. Kates Jr 1994, p. 361.

  22. Halbrook 1984, pp. 77–8.

  23. Ibid., pp. 77–8. Elbridge Gerry was Massachusetts’ Representative in the Continental Congress, attended the Constitutional Convention, was a signer of the Declaration of Independence, and was Vice President of the United States under James Madison during 1813.

  24. Malcolm 1994. The Framers agreed with English judge Sir William Blackstone’s philosophy surrounding the right to bear arms when he stated, “the sanctions of society and laws are found insufficient to restrain the violence of oppression” (as quoted in Malcolm, p. 162).

  25. Kates Jr 1994, p. 362.

  26. Law Center to Prevent Gun Violence 2016b.

  27. Gun Control Act of 1968 (GCA), 18 U.S.C. §§ 922(t), 923(a)(g)(j) (1968).

  28. Law Center to Prevent Gun Violence 2016b.

  29. Ibid.

  30. Cal. Pen. Code, § 26,850 and §§ 31,610–31,670. California requires that you have a valid Firearm Safety Certificate to purchase or acquire firearm (this requires a 75% or higher score on an objective written test administered by Department of Justice [DOJ] certified instructors). You must also perform competency of “safe handling” of the firearm in front of DOJ certified instructor in order to take possession of the firearm.

  31. DeGrazia 2014, p. 3. His control would not require retroactive application of tracing mechanisms, but rather the requirement would be implemented at some specific date and applied to future transactions.

  32. Ibid., p. 18.

  33. BATF n.d. The ATF Tracing Center provides tracing on guns to aid law enforcement agencies and states that their purpose is to “provide investigative leads in the fight against violent crime and terrorism and to enhance public safety.”

  34. Firearms Owners’ Protection Act (FOPA), Pub. L. No. 99–308 (1986). FOPA revised many provisions of the 1968 GCA. Section 926(a) of 18 was revised and states, “That no such rule or regulation promulgated after the effective date of this Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United State or any State or any political institutions thereof, nor that any systems of registration of firearms, firearms owners, or firearms transactions or dispositions be established.”

  35. 7 of the 9 “may issue” states also require a permit to purchase a handgun, whereas only 4 out of the 31 “shall issue” states require a permit to purchase a handgun. This means that approximately 78% of the “may issue” states require a permit to purchase a handgun and only 13% of the “shall issue” states (NRA-ILA n.d.). New Jersey is an example of a “may issue” state that requires a permit to purchase. First, an individual is required to purchase a Firearms Purchaser Identification Card from their local police department (that can take anywhere from 1 to 6 months to be approved). Then second, if the individual wishes to purchase a handgun, they are required to apply for a Permit to Purchase a Handgun, which requires submitting three character references (NJSP 2017).

  36. Grossman and Lee 2008, pp. 198–206.

  37. Ibid.

  38. It is also common for the “good cause” requirement to stipulate that, in addition to the immediate threat, it must be the case that law enforcement resources are inadequate to assist.

  39. The requirement to prove a special need in order to acquire a firearm permit is distinct from the requirement to prove a special need in order to acquire a concealed carry permit, as an individual could still conceivably own a handgun, but simply just be unable to carry it concealed outside of the home.

  40. Simkin et al. 1994, p. 119.

  41. See Decree of the Council of People’s Commissars in Simkin et al. 1994, pp. 121–23.

  42. Ibid.

  43. See Decree of the Council of People’s Commissars on the issuing, keeping, and handling of firearms in Simkin et al. 1994, pp. 129–31.

  44. Simkin et al. 1994, p. 101.

  45. Ibid., pp. 101, 145.

  46. Rummel 1994, p. 8.

  47. Simkin et al. 1994, p. 151.

  48. Ibid., p. 151.

  49. Ibid., p. 154.

  50. Ibid., p. 183.

  51. Ibid., p. 183.

  52. Ibid., p. 167.

  53. Ibid., p. 167.

  54. Hitler 1953, p. 345.

  55. Rummel 1994, p. 8.

  56. ACLU n.d.-a, “NSA Surveillance”

  57. ACLU n.d.-b, “Warrantless Surveillance Under Section 702 of FISA”

  58. FISA only concerns electronic communication, so perhaps the U.S. government would not be aware of all communication regarding dissent.

  59. I am grateful to an anonymous reviewer for bringing up the issue of surveillance technology.

  60. Near v. Minnesota 1931.

  61. New York Times Co. v. United States 1971.

  62. Ibid.

  63. Nebraska Press Assn. v. Stuart 1976. In 1976, a murder trial in Nebraska attracted so much media attention that the Nebraska state trial judge prohibited the media from releasing certain information on the defendant that he believed could violate the defendant’s Sixth Amendment right to a fair trial (specifically, to have an impartial jury). The Supreme Court later overruled the lower court’s finding given that they had not met the high burden of proof to justify prior restraint.

  64. Ibid.

  65. Kochanek et al., pp. 12, 87. I am using statistics from 2014 as final data is not available for 2015 (or 2016).

  66. Ibid. The breakdown for all 33,599 firearm related death is as follows: 21,334 suicide, 10,945 homicides, 586 accidental discharge, 464 legal interventions/war, and 270 homicides where there was undetermined intent.

  67. Ibid., pp. 5, 87. 614,348 deaths were from heart disease and 591,699 were from cancer.

  68. Truman and Langton 2015, p. 3. The number of incidents does not accurately reflect the level of victimization, which is why I will use the figure for the number of victims when analyzing the effects of gun crimes. These crimes include any crime in which the offender had, used, or showed a gun.

  69. While this sentiment is understandable, it is not sufficient to justify gun restrictions that prohibit individuals from exercising their right to bear arms.

  70. NRA-ILA n.d.; Law Center to Prevent Gun Violence 2016a.

  71. Lott Jr 2010, p. 240; Grossman and Lee 2008, p. 203

  72. Grossman and Lee 2008, p. 206

  73. Lott Jr 2010, pp. 97–9 & pp. 259–74. Lott’s original research covered the years 1977–1992 when only eighteen states had concealed carry laws. He has updated his research twice since then and his most recent research spans from 1977 through 2005 and factors in the concealed carry laws in thirty-nine states. His findings are consistent across all three sets of research and show that states that have concealed carry laws see a reduction in murder and violent crime.

  74. Wellford et al. 2004. In 2004, the National Research Council reviewed the firearms literature and while the chapter on concealed carry laws concludes that “it is not possible to determine that there is a causal link between the passage of right-to-carry laws and crime rates” (p. 150), the dissenting opinion by James Q. Wilson in Appendix A states that Lott’s results on right to carry laws and crime rates “survive virtually every reanalysis done by the committee” (p. 269). Wilson concludes his dissent by stating, “I find that the evidence presented by Lott and his supporters suggests that RTC laws do in fact help drive down the murder rate, though their effect on other crimes is ambiguous” (p. 271).

  75. Harlow 2001, p.1. The study was conducted by the Bureau of Justice Statistics in 1997 and included 18,000 inmates.

  76. Ibid.

  77. This is simply to say that those who have less money are more likely to live in a less safe neighborhood. Generally, wealthier people live in safer neighborhoods. Living in a less safe neighborhood means you are more likely to find yourself in a self-defense situation where being armed could save your life.

  78. Huemer 2016; Lott Jr 2010, p. 318. Huemer states that people frequently confuse whether it would be good to have the results of some gun law and whether that gun law will be effective. He discusses compliance in terms of a gun prohibition, but the same reasoning can be applied to other gun laws and restrictions. See Huemer 2016 for a full discussion on the noncompliance problem as it relates to criminal gun owners.

  79. Kleck and Kates 2001, pp. 213–28. Something is generally not considered a DGU unless it concerns the threat of another person (not including police officers, military, or security officers), involves contact with an actual person (i.e., not investigating a strange noise or animal), the gun was used in some way (even if just a verbal threat), and the person could state some intended crime they thought might occur.

  80. BATF 2016, p. 1. The ATF reports total firearms manufactured in 1993 was 5,055,637 and 9,050,626 in 2014. See Exhibit 1 for firearms manufactured from 1986 to 2014. While gun manufacturing does not necessarily mean increased defensive gun use, it is reasonable to think that this substantial increase in manufacturing indicates a demand in the market for guns.

  81. Lott Jr 2016, pp. 109–10. See Lott’s discussion of Hillary Clinton and Barack Obama’s praise of Australia’s gun buyback program.

  82. It is worth noting that if there were to be a national registry, there may be some incentive for normally law-abiding gun owners who do not wish to register their guns to break the law. If normally law-abiding gun owners suspect the gun registry could be used for confiscation, then they may consider breaking the law to avoid the risk of gun confiscation.

  83. McMahan 2012.

  84. Additionally, most gun owners do not need to be as well-trained as the police to effectively ward off an attacker. Sometimes simply revealing the gun or stating that you have one deters attackers (recall discussion of DGU’s in section 4.2). Lott also points out that police officers have to pursue the attacker offensively. It is commonly impermissible for police to merely deter an attacker. There is no such “offensive requirement to pursue” for a regular gun owner (Lott Jr 2010, p. 226).

  85. See Warren v. District of Columbia 1981.

  86. Ibid.

  87. Stated in the Memorandum Opinion by Judge Joseph M. Hannon to appeal No. 79–6 in Warren v. District of Columbia 1981.

  88. Huemer 2016. Huemer uses this point to defend an individuals’ right to bear arms.

  89. Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  90. Huemer 2013, pp. 221–26. See Huemer for a more detailed discussion of what programs, laws, and federal agencies would be unconstitutional.

  91. Snyder 1958, pp. 385–92. Reichstag is the German word for parliament.

  92. “Decree of the Reich 1946”.

  93. “Law to Remove the Distress 1943”.

  94. National Archives n.d., executive order #9066.

  95. Ibid.

  96. See Kiyoshi Hirabayashi v. United States 1943; Korematsu v. United States 1944.

  97. Direct military involvement ceased in 1973.

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Acknowledgements

I would like to give a very special thanks to Michael Huemer for his support of this project and his helpful, non sugar coated comments on earlier versions of this paper. I am also grateful to David Boonin, Josh Straight, Chris Coyne, Virgil Storr, Don Boudreaux, and Frank Garmon for valuable discussions about the topic of gun rights and gun control, which helped contribute to the final version of this paper.

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  1. Philosophy Department, University of Colorado, UCB 232, Boulder, CO, 80309, USA

    Jasmine Rae Straight

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Straight, J.R. The Right to Self-Defense Against the State. Philosophia 49, 437–458 (2021). https://doi.org/10.1007/s11406-020-00212-7

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