Huemer Defends the Right to Own a Gun
by Ari Armstrong, July 8, 2003
Michael Huemer, a philosophy professor at the University of Colorado, Boulder, has written a compelling essay defending the right to own firearms. He argues at length that preventing people from using effective means of self-defense is morally wrong. The essay was published by Social Theory and Practice, Vol. 29, No. 2 (April 2003), and it is reprinted (with permission) on Huemer's web page (http://home.sprynet.com/~owl1/guncontrol.htm).
As a philosopher, Huemer makes no reference to the Second Amendment or any other legal claim regarding a right to bear arms. Instead, Huemer discusses "moral rights that are logically prior to the laws enacted by the state" (297). For Huemer, rights are not "absolute," and in some cases they may be overridden by other concerns or limited by exceptions (299). Thus, most of Huemer's case consists of demonstrating that the right to own guns is a significant "prima facie" right. Lay people who advocate gun-ownership, then, will find much of value in Huemer's essay, though, in exchange, some may have to surrender simplistic arguments such that a right is guaranteed only because it is enshrined in law.
Of course, there are important considerations concerning the Constitution that aren't relevant to Huemer's essay. For instance, one might argue that, even if legal protections of gun ownership are ill-conceived or inappropriate for modern life, legal protections that exist should be respected until they can be overturned. Thus, regardless of what one thinks about gun ownership as social policy, one might (and I think should) argue Constitutional protections of the practice should be respected unless a specific amendment to the contrary is adopted. The basic argument is that government officials should respect existing Constitutional protections, even if they believe this results in some specific bad policies, because otherwise the power of these officials becomes practically unlimited. This view allows plenty of room for disobeying obviously unjust laws (such as those enforcing slavery or genocide), and it also is compatible with an advocacy of civil disobedience (in some cases) to protest unjust laws.
Huemer argues, "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" (299). However, I think "overriding" a right is essentially one way of finding an "exception" to it. I have argued previously the best approach is to describe as a "right" that realm of activity that is not limited by exceptions. Thus, we do not have a "right," say, to yell fire in a theater or (arguably) to own certain weapons (such as nuclear warheads (323)) or to use guns in certain ways (such as to shoot on a residential street (298)).
While Huemer focuses on the relationship of gun ownership to self-defense, something he argues "must be a very weighty right" (307), he also discusses the value of guns for recreational use. The fact that millions of American gun owners shoot billions of rounds every year for recreational purposes cannot simply be dismissed when discussing rights. By comparison, deaths involving automobile accidents, which are much more common than deaths involving guns, often involve recreational uses of a vehicle. Yet many of us would argue we have a right to use vehicles to travel to recreational events of our choosing.
Also, Huemer argues, the beliefs of the individual matter. He offers the example of homosexual relationships (301). Regardless of how one might evaluate homosexual activities, one should recognize such activities are important *to the participants*, and this carries some moral weight. Similarly, shooting for recreational purposes is important to the participants, and this cannot be blithely ignored.
Huemer's general take is that individuals matter, that their goals and beliefs matter, and that the state is properly limited in how it can curtail the activities of individuals. Thus, for Huemer, the issue of gun ownership is fundamentally part of the liberal tradition (311).
Huemer's liberal bent also provides him with an interesting take on suicide. He notes the empirical matter that people who commit suicide with guns can, in the absence of guns, easily substitute some other tool or method. But this is of limited relevance to the debate. After all, "it is doubtful that the restriction of gun ownership for the purpose of preventing suicides would fall within the prerogatives of a liberal state, even if such a policy would be effective. One cause for doubt is that such policies infringe upon the rights of gun-owners (both the suicidal ones and the non-suicidal majority) without protecting anyone else's rights" (311).
Thus, it becomes apparent that, for Huemer, simple cost-benefit comparisons (say, in terms of lives cost or saved) are inadequate to provide a moral framework. Even though he argues that, on net, gun ownership saves more lives than it costs (313), he concludes, "[i]n order to be justified as a case of the overriding of prima facie rights, gun prohibition would have to save many times as many lives as it cost" (317).
On one issue I'm uncomfortable with Huemer's terminology. He describes a purely consequentialist view as contrary to a view that adheres to a theory of rights (317). Huemer thus conflates consequentialism with utilitarianism. Yet, as I've argued, it is essential to distinguish these concepts. Ultimately, I believe rights have a consequentialist grounding, and so there is no inherent conflict between rights and consequences. But this is a lengthy discussion for another time.
Huemer thus argues forcefully that gun ownership is an important right that cannot easily be overridden. But virtually no one on today's political scene openly advocates a total gun ban. Huemer devotes 328 words out of more than 11,000 to the matter of limited gun restrictions, though his general arguments may be adapted to specific cases. Huemer addresses handgun bans and concealed-carry bans (323-4), and he concludes such restrictions significantly violate the right of self-defense.
Elsewhere, Huemer outlines a "Seller Responsibility principle" that assigns moral blame to a gun seller who "willfully or negligently fails to take reasonable steps to reduce the chances of selling to criminal users" (322). Surely those who advocate background checks for gun sales would argue such a restriction fits this principle. However, I have argued the Brady law now in place harms gun owners in two main ways. First, because of faulty and incomplete records, people who need a gun for self-defense are sometimes temporarily denied their right to purchase a gun. Second, the existing law registers gun owners with the federal government, and this constitutes a significant risk of future abusive action by government agents.
At the same time, the existing checks have had no discernible benefits in terms of lowering crime rates. This fits the theory that the average criminal can substitute other weapons more easily than can the average potential victim, and criminals often have access to illegal markets for guns. Criminals can also fake documentation or find somebody with a clean record to conduct a "straw" purchase. Another problem is that Brady checks divert scarce police resources to tracking law-abiding citizens rather than criminals.
It remains an open question, though, whether a system could be implemented that is useful and that doesn't violate people's rights. Obviously (as Huemer notes), knowingly selling a gun to a person with criminal intent is morally blameworthy. But what exactly constitutes negligence?
A good argument can be made that requiring gun sellers to conduct background checks is simply ineffective, for the reasons stated. Thus, a gun seller should be held liable only if he or she has specific information that the buyer intends harm. However, without committing myself to support of the policy, I will describe one possible alternative to the current background-check law. Let us say that criminal records could be kept that are highly accurate, and these records could be made available via the internet. Gun sellers could then check the criminal records against the identification documents of a buyer. It is crucial that the gun seller never enters the name of the buyer into any computer, but instead scrolls through an alphabetical listing of names. The on-line files could also show photographs for confirmation. Failure to check the records could be made a criminal matter or left to the civil courts. The burden of proof would be on the prosecution (as I think is appropriate) to show the check was not conducted.
I believe the system described would be vastly superior to current law. It is not without its problems, however. First and most important, I do not believe the practice of any right should be dependent on getting government-mandated identification documents. Second, I'm not entirely convinced it's a good idea to apply sanctions to criminals for their entire lives. If the person is demonstrably dangerous, the person should be separated from society. If the person has paid his or her dues and reformed, I see little reason to prevent that person from regaining the rights of citizenship. Of course, it's possible to limit the check to criminals who are evading arrest. However, I will be surprised if any background check system can be implemented that doesn't spend enormous resources for minimal or no benefit.
Huemer's essay does not promise to resolve all of the disputes surrounding the ownership of guns. However, it provides a forceful -- I think impregnable -- defense of gun ownership as an important moral right. Both the advocates and opponents of gun ownership will do well to read it.