Reply to Gordon: Rights are Inlienable

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The Colorado Freedom

Reply to Gordon: The Right of Self-Defense is Inalienable

by Ari Armstrong, February 20, 2003

Sen. Ken Gordon wrote a rather pleasant article about guns for the February 16 Denver Post. Pleasant, but misguided.

No right is absolute, Gordon claims. After all, he reminds us, "The right to free speech does not allow one to yell 'fire' in a crowded theater," as Holmes put it. Gordon adds, "[A]n absolute right for one is the end of rights for others." Just as laws limit "libel and slander, fighting words, and pornography," Gordon argues, so may laws restrict gun ownership.

But Gordon's formulation is not quite the same as Holmes'. Perhaps Holmes is not saying rights should be limited; perhaps he is saying some things aren't rights at all. The restriction on yelling "fire" does not restrict a right; it delineates an act that is not a right. Nobody has a right to yell "fire" in a way that disrupts another's property; that act is not a part of the right of free speech. Gordon puts the matter agreeably when he writes, "[E]ven speech is not absolutely protected."

I propose that rights are inalienable -- absolute if you will -- but rights do not cover absolutely all forms of any given activity. Yelling "fire" in somebody's theater is an inherently illegal act. Similarly, shooting an innocent person with a gun is not included in the "right to keep and bear arms."

On a superficial level it might seem I'm picking nits, but the distinction I'm describing is profound. If we follow Gordon's line and describe rights as non-absolute, we assume there is some arbitrary line we must draw, allowing some rights but disallowing others. Gordon's formulation precludes moral principles and commits us to pragmatism. On the other hand, when we think of rights as inalienable or absolute, but not covering absolutely all forms of a given behavior, we are compelled to dig for principles that distinguish different types of acts.

According to Gordon's formulation, giving a speech on one's own property is the same type of action as yelling "fire" in a crowded theater. Both are speech. We have a "right" to both acts, but, because rights are not absolute, we choose to restrict one act but not the other.

Of course there's nothing wrong with calling both acts "speech." The problem lies in suggesting we have a right to commit both acts. The view I'm promoting requires us to categorize acts along a different plane: into those acts which are protected as rights and those which aren't.

Perhaps the "absolutist" view will be more clear in light of a discussion of goodness and justice. Is good an "absolute" value? Or do we want to limit the amount of goodness? Similarly, should we limit justice, or should we advocate the absolute maximum amount of justice? The same pragmatist mindset that counsels, "We should usually strive to be good, but we can't always be good," also suggests, "We can't always protect people's rights."

The pragmatist might argue the principled view commits us to imprudent action, but that would be a circular critique. A proper set of principles is not blind to practicality; it is built from the ground up to ensure it. The pragmatist, on the other hand, fails to develop a fundamental understanding of concepts like good, justice, and rights, and so ends up counseling imprudent behavior. In short, principles are practical, and pragmatism isn't.

Yelling "fire" in a crowded theater is not a right; it is an act that violates the rights of others. Specifically, whoever owns the theater has a property right in that theater. People who pay to see the show are entering into a contract with the theater owner. Certain behaviors are compatible with that agreement, and certain behaviors aren't.

Similarly, we have no right to carry a gun onto a the property of a person who forbids the act. We have no right to use a gun in a way that hurts or directly endangers the person or property of anybody else. According to the principled view, it would be improper to say our rights are being restricted by such limitations. Instead, we should say our (inalienable) rights do not entail hurting others or violating their property.

Obviously, we don't want to get stuck in debates over semantics. It's possible to use the phrase, "rights aren't absolute," in a way compatible with the principled view. But we also need to be careful not to muddle the distinction between principles and pragmatism.

When Gordon writes, "[A]n absolute right for one is the end of rights for others," he seems to be endorsing the notion that rights compete. Because the rights of different people are incompatible, the rights of all people must be restricted to achieve social harmony. The principled view, on the other hand, sees inalienable rights as the means to achieve social harmony. The more consistently rights are protected, the more harmoniously people will live. If rights are curtailed or violated, social conflict will necessarily result.

Gordon's pragmatism allows him to place the acts of yelling "fire" and producing pornography in the same category. However, for the libertarian, yelling "fire" in a theater is an inherently improper act, whereas pornography is legally acceptable if its production does not violate the property rights of others. (E.g., forcing people to pose for pornographic photos is obviously not a right.)

The principled view immediately rejects proposals to censor the press or limit any right of speech. Such restrictions are fundamentally different from restrictions against yelling "fire." For the pragmatist, however, such proposals differ only in degree, not in kind.

Gordon writes, "Certainly, Americans have a right to bear arms. But what does that mean? Did it mean one thing in 1791 when a frontier nation won a revolution using muskets and another in 2003 when drug gangs use handguns? When the U.S. Constitution protects a specific right, it's clear that this is important and that the individual has some protection against the majority. It does not mean that the right is absolute."

We won't dwell on Gordon's admittance that drug prohibition is a major driver of the U.S. homicide rate. As Mises warned, socialist programs create unintended harmful consequences that tend to encourage more socialist programs. In this case, drug prohibition dramatically increased the homicide rate, so now politicians are trying to address the symptom of the disease by restricting gun ownership. Nevermind the obvious point that "drug gangs" are already experts at smuggling prohibited items.

But let me place Gordon's argument in another context: "Certainly, Americans have a right to speak and write. But what does that mean? Did it mean one thing in 1791 when a frontier nation galvanized a revolution using primitive printing presses and another in 2003 when terrorists communicate via the internet and cellular phones?"

It is only an historical accident that Gordon values the First Amendment more than he values the Second. Mostly it has to do with demographics: leftists tend to be more urban, where gun ownership rates are lower, while rightists tend to be more rural. Thus, on this one issue, the Republican Party tends to supports civil liberties, while the Democratic Party tends to oppose them. What unites most Republicans and Democrats, though, is a belief that (the other person's) rights must be curtailed.

Those who adhere to a principled view, on the other hand, value both the right of speech and the right of self-defense and wish to restrict neither.

Specifically, Gordon wishes to retain local restrictions on concealed carry, arbitrarily selected semiautomatic rifles, and the transportation of guns. Two competing concealed carry bills would require local sheriffs to issue permits to all qualifying residents, and another so-called "preemption" bill would remove several local ordinances that restrict the right to keep and bear arms.

Gordon states "there is no 'right' to carry a hidden gun in Colorado" based on the wording of the state constitution. Clearly, Gordon believes rights are granted to citizens by the state. This is compatible with the pragmatist view and at odds with the principled view (which holds rights as inalienable). I have argued that Colorado citizens indeed have a right to carry concealed handguns, despite the wording of the state constitution. The question is, will the state violate our rights or not?

Gordon skewers two straw men in his article. Concerning concealed carry, he alleges "[p]roponents feel that the world is a dangerous place and... an individual can only depend on himself. Opponents feel that people carrying concealed weapons help to make the world more dangerous and that our best hope for safety is in the hands of a sane and just community." Besides the faulty exercise in psychoanalysis, Gordon presents a false alternative. Our choice is not between individual action and cooperative action; life requires both. The "sane and just community" is irrelevant at the point when somebody tries to kill you on a dark street. Also, concealed carriers can directly protect others in the community as well as help deter crime generally. Our choice is not between Robinson Crusoe and singing Kumbaya around the campfire.

Against the bill that would prevent localities from limiting the right of self-defense, Gordon writes, "[Bill sponsor] Jim Dyer... argues that we need statewide uniformity. I don't see why... [I]f we go to one-size-fits-all, [some] places will be over-regulated or, more likely -- and this is what the gun lobby would prefer -- Denver will be under-regulated." Of course, the argument about uniformity is the most trivial argument in the bill's defense. And Gordon's language is curious. He speaks of regulating cities, but of course it is not cities that are regulated, it is individual citizens. The phrase, "Denver will be under-regulated," is a euphemism for, "Citizens living in Denver will no longer see their rights violated by local politicians."

Gordon writes, "My view is that the statistical argument is a wash. I don't believe that people who get permits commit very many crimes, and I don't believe that they stop very many." Well, we know for certain that people with permits commit almost no crimes. And Gary Kleck (Armed, p. 313-316) notes a significant number of defensive gun uses involve carried guns.

However, regression analysis offers less clear conclusions. In a new, extensive study, John Donohue grants the validity of much of John Lott's early work. But he finds that updating the data provides mixed and confusing results. He writes:

The overall evidence suggests to me that broad (and conflicting) crime swings that occurred in the late 1980s and 1990s happened to correlate with the passage of shall-issue laws, and the panel data model seems unable to separate out the contribution of the relatively minor influence of the shall-issue law from the major impacts of these broad swings. With data problems making it unclear whether the county or state data are more reliable, with the lack of good instruments available to directly address the problems of endogeneity and the lack of good controls available to capture the criminogenic influence of crack, it is hard to make strong claims about the likely impact of passing a shall-issue law.

In other words, while we can be sure (based on Kleck's data) that people in fact use concealed guns defensively, it's less clear what the overall impact of the laws is on crime rates.

There are competing causal theories concerning the impacts of concealed carry. The "more guns, less crime hypothesis," as Donohue calls it, argues carriers can successfully stop some violent attacks, and also criminals are less likely to attack people who may be armed. (Survey work indicates criminals indeed fear confronting an armed person.) The contrary view argues criminals may be quicker to use lethal force (to prevent armed defense). (Claims about possible violent behavior by permit holders are disproved by the raw data from the states with permit laws.)

However, it could be the case that concealed carry laws change the behavior of the carriers as well as the criminals. Lott writes:

It is possible that concealed-firearm laws both make individuals safer and increase crime rates at the same time... For example, allowing citizens to carry concealed firearms may encourage them to risk entering more dangerous neighborhoods or to begin traveling during times they previously avoided... (More Guns, 2nd Ed., p. 33-34)

Lott goes on to relate the story of a woman who was fearful to travel alone until she purchased a firearm. Thus, if the ability to carry concealed mitigates a person's risks and thus expands the range of relatively safe activity, "society as a whole might be better off even if crime rates were to rise as a result of concealed-handgun laws."

We know three things, then, with a high degree of confidence. 1. Permit holders do not commit crimes. 2. Some people use concealed guns to defend against violent crime. 3. Criminals say they're less likely to attack those who may be armed. The regression models seem to provide mixed results.

[2/25/03 Update: John Lott, Florenz Plassman, and John Whitley wrote a convincing refutation of Donohue's claims in a January paper. They claim Donohue misreads his own data, and the updated information continues to show liberalized carry laws reduce rates of violent crime.]

At deeper level, though, the statistics are not the only issue or even the most important issue. For instance, no doubt people who regularly read the Quran are more likely to commit acts of terrorism in the U.S. Do we or don't we believe individual rights may be violated based on statistics? Should the government exercise prior restraint based merely on statistical averages?

Rights, and moral principles generally, may not properly be cut off from prudential concerns. Indeed, moral principles are defined as such largely because they tend to promote good consequences for human beings.

The right to bear arms derives from the right of self-defense, which in turn derives from the right to life. Thus, bearing arms must be shown to have actual defensive value to be considered a right. The emperics amply support that view. Rights are also sensitive to the concern that governments tend to abuse power.

Even if (hypothetically) guns had no defensive value (which they obviously do), they would still be property, and thus would fall under the right to property. I am not prepared to argue, on the other hand, that a nuclear bomb falls under the right to property, because such an item poses an imminent threat to the property and safety of others. Similarly, there is no right to walk down a residential street firing one's gun at random.

I am happy that Gordon at least recognizes some right to bear arms, just as he recognizes some right to free speech. But ultimately the pragmatist perspective cannot ably defend rights. It's appropriate to talk about which sorts of acts are rights and which aren't. It's not appropriate, according to the principled perspective, to talk about which rights should be restricted or by how much.

The Colorado Freedom