21 February 2008

Why Protect Private Arms Possession?

An interesting article by law professor Michael Steven Green that shares the title of this post about the Second Amendment has been posted on the Social Science Research Network (hat tip to How Appealing).

The importance of the subject is described in the final paragraph of the abstract:

Clarity about the value of private arms possession is essential for determining the scope of the Second Amendment under an individual right interpretation - a project that lower courts will be forced to undertake if Parker [ed. v. District of Columbia (the D.C. Circuit case appealed in Heller)] is affirmed. Courts commonly interpret the scope of a constitutional right in light of the interests the right protects. For this reason, they need a clear conception of why individuals have an interest in private arms possession. I offer this article as a first, but crucial, step toward answering this question.

The core headings in the paper broadly outline his analysis:

1. Does private arms possession make us safer?
2. If private arms possession makes us safer, does that mean we have a fundamental interest in bearing arms?
3. Are constitutional rights that promote public safety necessary?
4. A puzzle concerning scope.
1. The natural right to bear arms.
2. Wasn’t the natural right to bear arms alienated upon entering the social contract?
3. A thought experiment.
4. Problems of scope.
1. Will allowing individuals to vindicate their visions of reserved rights make it more likely that reserved rights are respected?
2. Blackstone on auxiliary rights.

A Brief Overview

Self-defense is at the core of the reason why most Americans who own firearms which the government is inclined to regulate do so. Thus, justifications other than self-defense for an individual right to bear arms leave open considerable room to contrain the value of bearing arms for the purposes of self-defense, so long as another justification is adopted. For example, if the core of the right is the right to protect your household in the anarchy of a foreign invasion or insurrection, it might be reasonable to restrict the right to regulate concealed carrying of guns away from home to a much greater extent than it would be otherwise.

The conventional reading of the Second Amendment focuses on revolution against tyranny. This is on one hand, one of the most narrow readings of the right, but on the other hand, opens up the door to private ownership of all sorts of weapons relevant to that purpose that have no legitimate justification for self-defense against ordinary crime or for hunting. Defense against tyranny by a government with its own military, rightfully ought to require heavy machine guns, anti-tank weapons, ground to air missiles and the like. The absurdity of widespread ownership of these kinds of weapons suggests the impracticality of reading an individual right to bear arms, as opposed to a collectively one belonging to state governments, from this kind of justification.

While many people agree that hunting is a legitimate use for firearms, very few people argue that the Second Amendment protects a right to hunt, or that there is a right to hunt. Indeed, almost every state comprehensively regulates hunting in a matter that elaborate controls the amount of game that may be taken, the places where game may be taken, the time of year when game may be taken, and the kind of game that may be taken, usually in connection with licensing and fee conditions. The legitimacy of these regulations is almost never seriously doubted by anti-gun control advocates (other than those extemists who question of the legitimacy of almost all governmental entities). And, if the state is perfectly entitled to tell you what kind of gun and what kind of ammunition you may use to hunt, and at what time and in what manner you manner you may do so, then that doesn't look much like a constitutional right.

The Second Amendment As An Unincorporated Collective Right

I personally favor viewing the Second Amendment as a collective right, that restrains only to the federal government, which allows state and local governments to continue to have armed individuals who enforce their laws, notwithstanding a federal monopoly on the maintenance of a genuine Army or Navy.

One important historical fact that buttresses this approach is that formation in 1854(63 years after the Bill of Rights was adopted) of the Boston Police Department constituted the first paid, professional police service in the United States. Equally important, its means of crime control prior to the formation of the Boston Police Department, which was common throughout the urban areas of the American colonies before that point in time was a citizen's militia:

The first night watch was established in Boston in 1631 with an officer and six men. By 1635 the watch consisted of property owning males over 16 who were required to take turns at the duty without pay. In 1703 pay in the sum of 35 shillings a month was set. In 1796, the Watch was reorganized and the watchmen carried a badge of office, a rattle, and a six-foot pole, which was painted blue and white with a hook on one end and a bill on the other. The hook was used to grab fleeing criminals, and the rounded “bill” was used as a weapon. The rattle was a noise-making device used for calling for assistance.

In 1838 the Day Police was organized, having no connection with the Night Watch. The Day Police operated under the city marshal and had six appointed officers. In 1853, the Harbor Police was created in response to the increase in robberies of occupied vessels in the waters of Boston Harbor. They were furnished with rowboats and armed with Colt revolvers. This was the first unit furnished with firearms.

Thus, in early Boston, law enforcement was conducted by citizen militias who used their own firearms to carry out that duty.

In my view, the natural successor to the militia of the Second Amendment is not primarily the National Guard, as claimed by many commentators. Instead, it is the local government operated police force, which is now ubiquitous. Hence, I see the Second Amendment (which was widely agreed in its original context to be a restraint on the federal government only, not a protection from state regulation which was subject to state constitutional limitations) as a prohibition against the creation of a federal monopoly on armed law enforcement.

In this analysis, the "well regulated" language of the Second Amendment comports well with the notion that most state governments require police officer standards training before someone can receive recognition as a law enforcement officer.

The Strongest Argument For An Individual Right To Bear Arms

While I don't agree that the Second Amendment creates an individual right to bear arms, some state constitutional protections probably do, and there are some non-trivial arguments that there ought to be an individual right to bear arms.

The most compelling arguments for an individual right to bear arms in self-defense, in my view, are the mirror image of the fact that there is no individually enforceable right to receive protection from violence through governmental law enforcement authorities.

The government has no obligation to help you even when informed through proper channels and court certified determinations, in no uncertain terms, of a known and imminent deadly threat to your personal safety which would be possible for law enforcement officers to respond to if the responsible government manager chose to do so. This proposition is settled law enunciated by the U.S. Supreme Court in a case out of Castle Rock, Colorado. The principal exception to this rule (for law enforcement-created dangers) does not materially alter this analysis.

Remarkably, the author of the linked article maxed on at length about the political theory notion that there is an obligation on the part of the government to provide a minimal level of personal safety to its citizens, while failing to note that no such enforceable individual right has ever been recognized. Our constitutional scheme is largely not designed to protect people from non-state actors; private law is largely the province of the states and of statutory federal law. Civil rights violations, for example, by definition, involve acts by state actors under color of law.

Similarly, in American law (unlike the law of most European countries where there is a duty to prosecte crimes subject to certain limitations), prosecutors likewise have the absolute right not to pursue a prosecution even in the face of irrefutable proof that a crime has been committed at a time when the prosecutor's office has sufficient resources to take on the case. This right, called prosecutorial discretion, is rarely systemically abused (although the recent U.S. attorneys' scandal illustrates how bringing excessive prosecutions can be abused). But, this doctrine has the potential to allow violent private actors empowered by an indifferent prosecutor to commit crimes against innocent citizens with impunity in circumstances where the rest of the government, motivated by majoritarian political motives, isn't offended enough by this act to remove the prosector from office.

Thus, an individual right to bear arms may be the only available recourse available to someone who needs to secure their personal safety from private violence. Viewed in this manner, the universal privilege to use deadly force in self-defense in some circumstances is reinforced by the right to bear arms, and both recognize the inability or unwillingness of the government to provide adequate protection to everyone.

This most compelling justification has lost some of its currency in the popular mind, because it rarely manifests itself in modern urban life which is were most voters live their lives. Cases like the one in Castle Rock are a notable product of unusual incompetence, lack of leadership and a bueaucratic bad attitude, more than they are a product of any active malice. The modern urban reality is that it is rare for law enforcement to show deliberate disregard for the safety of the general public. Also, while law enforcement responses are never instantaneous, in violent emergencies, police in the vast majority of the territory of most modern urban areas can usually be counted upon to arrive in a matter of minutes.

But, like cell phone coverage, the quality and good faith of police protection varies from place to place.

In low density urban areas, particularly in the early days of the Republic when muscle power was the only way to travel overland, but even now in remote areas, the ability of law enforcement to mount a prompt response to violent actors was negligible. In places like the pre-civil rights era rural South, law enforcement often deliberately refused to protect citizens from lynch mobs. In a deeply distressed urban ghetto, the kind often called a "war zone," police are often not effective at securing minimal personal protection for residents. A temporary interlude of lost law enforcement authority can arise when a large criminal motorcycle gang sudden drives into town outnumbering local law enforcement officers ten to one or more. In natural disasters, the police may be to overwhelmed to act or unable to reach you and protect you. Calling the cops isn't a viable options if your cell phone battery is dead, the landline is down or has been cut, and you are out of earshot from potentially helpful neighbors. Use your imagination and you can conjure up similar situations.

While some of the individuals have only a passing and transitory need for armed self-defense, and one would expect a majoritarian government to make reasonable laws governing when to allow people to arm themselves for these kinds of eventualities, there is another class of cases in these examples that is systemic and political in nature, without being revolutionary. An individual Second Amendment right to bear arms becomes political when the government chooses to refrain from providing a minimal level of personal protection from private violence to members of some unpopular minority group.

Perhaps that group consists of Korean storekeepers in a large Los Angeles neighborhoods who have dealt sharply with local residents in areas so beset by riots by angry African-Americans protesting an unjust judicial verdict that majority white police are incapable of protecting them or disinclined to risk their own lives to do so. Perhaps that group consists of blacks in a neighborhood beset by private KKK violence that local sheriff's choose to ignore. Perhaps that group consists of lawfully striking union members attacked by goons employed by their employers. Perhaps that group consists of Muslim women targeted for honor killings, or police informants targeted for gang or organized crime hits, whose killings are notoriously difficult to solve. Perhaps the group consists of Jews targeted by private Nazi organizations, in a Warsaw ghetto type situation. As Rwanda illustrated, collective violence even by crowds armed only with machettes and torches from a basically disarmed population can be the ulimate genocidal weapon of a majority unimpeded by governmental authority, against an unpopular minority.

One of the other notable omissions of the linked author is his failure to recognize that even when there is a tyrant government, that tyrants, either majoritarian or minoritarian, can act tyanically simply by letting private actors disregard the rule of law. Inaction can be as much of a force for tyrany as active governmental action in a world with organized private actors willing to take advantage of the license that the tyrant grants to them. Quite a bit of the violence in Iraq under U.S. occupation can be explained through that model.

Of course, the ability of members of a group to buy and own guns when they anticipate a legitimate reason to fear the combination of law enforcement indifference and organized private violence against them, might discourage the use of private violence as a political weapon generally, protecting minority political and personal rights from partisan political violence, and generally keeping politics more civil but keeping violence off the table even if the government is inclined to overlook it. It discourages headlines like the one in the New York Times after Pakistan's most recent election that proclaimed the election mostly orderly because "only 15 people" were murdered in election related violence.

A lens that sees an individual right to bear arms as a backstop against failures of the government to adequately secure public safety for some individuals whom it may lack poltical incentives to protect comes closest to outlining what sort of reasonable regulation of the right makes sense, while recognizing that the Second Amendment does have a political character. This view fits comfortably into a legal regime that does not legitimatize the right of individuals to decide for themselves to carry out treason against the existing state, because they personally see it as illegitimate, which is the usual tyrrany argument.

Seen as a tool to use to enforce the democratically enacted criminal laws when the government fails to do so, so that one may protect the individual rights that the criminal law is a device to ensure, when a lawsuit would be unavailing, an individual right to bear arms seems less threatening to public safety, and develops a framework within which it is possible to assess what regulations of the right are reasonable, and which are not.


Michael Malak said...

"absurdity of widespread ownership of [heavy machine guns, anti-tank weapons, ground to air missiles and the like]"

Why is it absurd? The Constitution is about checks and balances to power, and it stipulates that the citizenry should be a check against the military.

Every year during wildfire season, some individual creates mass destruction with a single match, available at any store. An anti-tank weapon is much more localized in its effect.

The distinction between lone nut and legitimate rebellion is the number of people involved (as well as exhaustion of alternatives, necessity over a serious matter, and liklihood of success). A lone nut with a powerful weapon will be overwhelmed by law enforcement by sheer numbers. A mass rebellion will not.

Without an unlimited second amendment, there is no check against tyranny.

Andrew Oh-Willeke said...

Something tells me you really liked the movie "Red Dawn."

In real life the risks associated with general ownership of serious military weapons by ordinary citizens that could allow them to pass into criminal and terrorist hands overwhelms the virtues to be gains from the very slim possiblity that privately owned weapons could ever match the military power of the United States military gone astray.

Also, in real life, very few people want to waste their money building an arsenal to defend against the might U.S. military for the general good with their own personal money.

The 98%+ majority of people simply want to protect their homes against the unfathomably more likely and manageable threat of private violence by individuals or relatively small groups of criminals (compared to the million and a half soldiers).

The very collective action problem that caused people to invent governments to use military force makes a private citizen counter-military force worthless, expensive and relatively to the benefits it affords us, useless.