by Tim Sommers
Do you have a right to own a microwave oven? To be clear, ideally in a free society, absent a clear showing of harm to others, there’s a presumption that you can do whatever you want and own whatever you can make or buy. So, you do have a basic right to own things – to acquire property, as political philosophers like to say. But it’s consistent with that right for there to be a lot of rules and regulations around what you can own – and even prohibitions on owning certain kinds of things.
Microwave ovens are complicated physical objects, tools or machines, that require pretty advanced technology and technical know-how to make and that almost no one can make all on their own. It would be odd to think of a microwave as the sort of thing you could have a right to. Before they were invented did people have a fundamental, but unexercisable right to own them? They also contain dangerous chemicals and heavy metals and are not entirely safe to discard or recycle. If new information revealed them to be even less safe than we think now, or if changing standards raised the safety bar on all appliances, microwaves could be banned. It’s hard to picture anyone arguing that microwaves couldn’t be banned because we have a fundamental right to own them.
What about cars? They kill a lot of people. But in many places, they are essential, or nearly essential, to mobility and mobility is essential to equality of fair opportunity – and some part of mobility should probably even be counted as a fundamental liberty. Still, we don’t have a fundamental right to own or drive a car – must less an unregulated, unlicensed right to own or drive one. Microwave ovens and cars and guns are just metaphysically the wrong kinds of things to be the object of basic rights, liberties, or political freedoms.
Let’s talk about guns.
Set aside whether you have legal right to own a gun. If you live in the United States, you almost certainly do. It may depend on where exactly you live and whether you have been convicted of a felony or have a history of mental illness, but in the prosaic legal sense, you very likely currently have a right to own a gun.
But whether any or all guns should be banned or regulated is not settled by the fact that in America, right now, you can legally own a gun. That sort of legal right is subject to change at any time and is wholly controlled by ordinary democratic processes, hopefully, guided by the calculus of social costs and benefits. But that’s not what most people mean when they say they have a right to own a gun. And, anyway, the fact that, right now, I can legally do something is not an argument that I should be allowed to continue doing it indefinitely even where there are good reasons I should be put a stop to.
Set aside the question of whether or not it is good public policy to permit private gun ownership and/or what sorts of regulations should be promulgated in regard to gun ownership. I want to focus on a more fundamental question.
Set aside whether you have a Constitutional right to own a gun. You do. You have the “right to keep and bear arms”. That’s the Second Amendment. As of 2008 the Supreme Court “incorporated” the Second Amendment (via the 14th Amendment and “equal protection” doctrine). It had been the last unincorporated fundamental right. You are now officially Constitutionally protected against State and Federal Laws that might otherwise undermine your right to own a gun.
Some would argue that it’s never been clear that the Second Amendment meant that you personally, as an individual (as opposed to a member of a state militia), had a right to own a gun. And for the 230+ years prior to incorporation the courts gave states broad powers to regulate firearms. But I don’t want to argue jurisprudence. The Constitution once allowed slavery. So, I don’t want to focus on whether it is currently Constitutional for you to own a gun. It is. I want to know if it’s plausible that you have a fundamental political right to own a gun.
In other words, would it be an injustice if you were prohibited from owning a gun? Is gun ownership on par with freedom of speech or religion, freedom of association, or the rights of political participation?
I think that question is more like this one than most people admit: Do you have a fundamental right to own a set of socket wrenches? How do specific things, literally things, make it onto the list of fundamental rights? Again, a gun is just metaphysically the wrong kind of thing to be the object of a fundamental right.
Something can still be essential to some fundamental right without itself being a fundamental right, of course. But notice, if that covers guns or cars or microwaves, it admits that the right to own a gun is not, in and of itself, a fundamental right. In other words, you might say that the fundamental right involved in gun ownership is not the owning of a specific piece of equipment, but the having of what’s necessary to get, or to have, something that is plausibly covered by a fundamental right.
But that’s not a counterargument, that is my argument. The right to a gun just can’t be a fundamental right the way free speech is a fundamental right.
Consider. Even if you think that having your own web site is essential to your freedom of expression, you shouldn’t think that you have a fundamental right to a web site. You should think, I have a fundamental right to free expression and I might, therefore, have a derivative claim to not being unnecessarily prevented from having a web site. Things like cars, that are connected to fundamental freedoms, are important but, by definition, they are not, in and of themselves, something we can have a fundamental right to.
What fundamental rights are guns supposed to be derivative of? Some very broad right of self-defense, I take it. But you don’t really have a right to self-defense per se either. You have a right to life. But the point of the state, any state, is to use its more or less “monopoly on the use of force” to protect your life. Exactly to what extent it should sub-contract back to you the right to defend yourself directly in some circumstances and with what sorts of equipment you will be supplied or allowed to acquire is a matter, again, of ordinary public policy as controlled by the democratic process. There’s no competing right to own guns or socket wrenches or cars or even microwave ovens.
Do you have a right to own guns so as to be prepared to defend yourself against your own state? If you are any kind of anarchist, this question is irrelevant. You don’t have any kind of fundamental political rights afforded by any state ever, at all. Politically, you can do whatever you want. But complaining that a wholly illegitimate state is coming for your guns in particular borders on nonsensical. And the point generalizes.
If the state you live in is not both legitimate and reasonably just you have no obligation not to have and to use guns against it. But it’s senseless to argue in that context that you have a “right” visa-a-via that very same illegitimate and unjust state to have a gun. You have either got a gun or you haven’t. Right doesn’t come into it.
On the other hand, if you live in a reasonably just, legitimate state, you have no right to arm yourself against it. It’s worth noting that, even though it’s inconsistent, it’s perfectly predictable that insistence on a right to own a gun often goes hand in hand with a comtempt for the government. What’s odd is the plaintive tone of so many insisting that their right to be unregulated in arming themselves against the state should be sanctified by that self-same state.
But what if the state that is now reasonably just goes bad in the future? Don’t we have the right to arm ourselves against that contingency?
Suppose I am stockpiling food against the imminent end of civilization. I am allowed to do that. There are probably even some basic liberties relevant to the project. But suppose I demand a certain piece of farm equipment to complete my preparations. What if that piece of farm equipment has been banned or I am not licensed to operate it or I just can’t get my hands on it? Does this threaten a fundamental right of mine?
In the U.S. about 40,000 deaths a year are attributable to guns. Guns don’t kill people some say, but people who own guns sure do. The assertion of a right to own a gun is nonsense, “nonsense on stilts”. Why argue otherwise? Because all the reasonable arguments have run out. Gun violence everywhere unabated, school children practice what to do when their school is invaded by a mass shooter, and our Capital has been stormed. It’s “rights”, as much as “patriotism”, that is the last refuge of scoundrels.