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Gun control and the regulation of fundamental rights.


Gun control (1) has always had two vectors: the first, a common sense, regulatory interest inherent in the rule of law, namely, to keep guns away from the untrustworthy and incompetent; the second, an ancient but still-live controversy in political philosophy, namely, whether an explication of full and equal citizenship must include a serious individual right to possess arms.

In practice, these vectors have tended to converge. For example, in America's colonial period, classes of persons regarded as ineligible or unfit for citizenship (the indigenous population and imported slaves) were specifically excluded from gun rights on grounds that they were untrustworthy, violence-prone and / or incompetent. (2) Over time, black freemen became increasingly numerous. (3) This development raised questions of philosophy and of policy--should there be a distinction between "freemen" and "citizens" and, if so, should this distinction be recognized in gun law? And indeed, white unwillingness to recognize free blacks as equal citizens prompted enactment of distinctive gun control measures for "free persons of color." (4) This "free-but-not-(full)citizen" regime reached its apogee in Dred Scott, in which the U.S. Supreme Court ruled that blacks lacked standing to bring claims into federal court. In his majority opinion, Chief Justice Taney precluded blacks from claiming as their patrimony the "privileges and immunities" of citizenship, alluded to in Article IV, Section 2 of the Federal Constitution. How so? Because to think otherwise would entail (in Taney's mind) an absurdity, namely, recognizing (contrary to fact) that blacks were entitled "to keep and carry guns wherever they went." (5)

America was not unique in premising its gun-control measures on "equality-skepticism" and/or "trustworthiness-skepticism." In the twelfth century, Henry II enacted The Assize of Arms. This restricted possession of arms to knights (professional fighters, often retained by aristocrats to defend their interests), freemen who held chattels of rent of 16 marks, and burgesses who had sworn allegiance to the King. Notably, Henry specifically disabled Jews from possessing Arms. (6) The King's message to those disabled from possessing arms could not be more clear: "We Do Not Trust You!"

Aristotle on Citizenship and Arms

LaFollete claims: "guns are mere means to independent citizenship. They are not constitutive of that citizenship." (7) LaFollette's disagreement with the major architect of the Western conception of citizenship could not be starker.

Aristotle, in his Politics, argues that the basic principles shaping a political society's understanding of who its full citizens are determine its understanding of the "who, what, where and how" of arms possession, namely, its "constitution." (8) By "constitution," Aristotle did not mean what LaFollette seems to mean, namely, a written outline of important legal rights amendable, albeit with difficulty, by democratic process.

On the contrary, by "constitution" Aristotle meant a society's fundamental ethical understanding concerning how those with serious "standing" in its political life should be identified. In other words, a constitution expresses a political society's understanding of who qualify as its full and equal citizens, of who should be recognized as having "a right to have rights." For Aristotle, you can tell who the citizens are by the rights they bear--the right to participate in political affairs, to hold public offices of trust, to own land, and to possess arms. Taken together, these rights constitute full citizenship. By implication, deleting any of them, by placing a person under a disability for example, diminishes his citizenship.

On Aristotle's view, the inequality between full citizens who have a serious right to bear arms and those who do not is constitutionally fundamental, "constitutive" of citizenship--not derivative. Aristotle drives home the point in his critique of Hippodamus. His comments deserve careful attention. Aristotle attacks directly a view that remains common in the world today--namely, that the division of labor in sophisticated societies can distribute unequally the right to bear arms without diminishing citizenship for those disabled:
 The city of Hippodamus was composed of 10,000 citizens divided into three
 parts--one of artisans, one of husbandmen, and a third of armed defenders
 of the state.... The artisans, and the husbandmen, and the warriors, all
 [supposedly] have a[n equal] share in government. But the husbandmen have
 no arms, and the artisans have neither arms nor land, and they therefore
 become all but slaves of the warrior class. That they should share in all
 the offices is an impossibility; for generals and guardians of the
 citizens, and nearly all the principal magistrates, must be taken from the
 class of those who carry arms. Yet, if the two other classes have no share
 in the government, how can they be loyal citizens? (9)

Aristotle criticizes Hippodamus for proposing an incoherent conception of political equality--full and equal citizenship but unequal rights to arms and land. Thus Aristotle says, "the government should be confined to those who [may] carry arms." (10) And, under a constitution in which ultimate power and responsibility is vested in the people, Aristotle argued that the people must have arms, "for the members of a community have need of them, and in their own hands, too, in order to maintain authority both against disobedient subjects and against external assailants." (11)

Notice, Aristotle's claim is "distributive" not "collective." It is the "members" of a community that must have (a serious right to) arms, not "the community" as distinguished from it members. To think that one could somehow vest the power of arms in "the community" and then prohibit possession to the citizens who are its (supposedly) full-and-equal members is not a "policy matter." On the contrary, the thought is essentially confused. It denies what it affirms--equality of citizenship but inequality of citizenship-constitutive rights--precisely the incoherence of which Hippodamus was guilty.

LaFollette's Argument in a Nutshell

LaFollette forgoes any analysis of America's gun control history, and he does not attempt to show how Aristotle got citizenship wrong. Instead, he premises his argument on the manifest unacceptability of America's "status quo." (12) This judgment is so obvious to him that he finds it unnecessary to summarize existing legal restrictions, except to insinuate their inadequacy; he does not review Justice Department data on homicide trends over the last century to determine what civilian ownership of guns might have to do with them. However, as a proponent of additional restrictions, LaFollette recognizes that he would bear a heavy burden of justification were there a citizenship-based "serious right to bear arms" since serious moral rights ordinarily trump arguments based on utilitarian or majoritarian foundations. LaFollette further argues that were there a serious citizenship-based right to bear arms, it would have to be grounded in the fundamental interests of persons, not in the U.S. Constitution, because the issue is moral, that is, concerned with what the Constitution ought to be, not what it is. (13) He argues that there is no serious, citizenship-based right to bear arms.

Points of Agreement

LaFollette rightly insists that policy choices with respect to guns are more nuanced than people commonly suppose. Thus, he says: "our choice is not merely to support or oppose gun control but to decide who can own which guns under what conditions." (14) He also correctly insists that defenders of a serious right to bear arms must ground their argument in an account of fundamental human interests. (Remarkably, LaFollette seems to assume that defenders of a state gun-monopoly do not similarly bear a burden of justification for their position.)

Again, LaFollette commendably pays more attention to empirical matters than is usual for partisan commentators. After all, a major controversy associated with gun control concerns whether the incidence and/or prevalence of guns (that is, the number of guns per 100,000 population or the percentage of households owning one or more guns) is a significant "social cause" of America's homicide and suicide rates.

Of course, for many partisans the answer is predetermined and obviously affirmative. But intellectually it remains a serious empirical question. And it is important philosophically to be clear about what sort of empirical question it is. The question is not whether guns are used to commit murder and suicide. Obviously guns are used that way. But they are also used to prevent murder and to deter harm. Presumably, that is a reason for society's arming law enforcement officers and also a reason why uniformed police officers are not generally targets for robbery.

But on conceptual grounds neither the gun-slaughter of innocents at Columbine High School nor NRA-cited examples of heroic gun rescues can settle anything about macro-level, net-effects of gun incidence and gun prevalence in society. (15) At the macro-level it may well be the case that bad and good cancel each other out. No anecdote-war can settle this.

Similarly, the question is not whether gun-possession might have corroded the meager self-control resources of a gender-identity-unsure male, thus leading him to use guns violently. (16) Gun possession may indeed have interacted with his abnormal psychology in that way. But gun possession may also serve to strengthen others' sense of personal responsibility and self-restraint. (17) Anecdotes seeming to exemplify either possibility show nothing whatsoever about the net social effects of the incidence/prevalence of guns in society. Only strong, antecedent motivation can explain how folk psychology, mixed with a newsworthy event (or several), can underwrite a credible-seeming macro-level inference. From the standpoint of "social causation" we want to know what is the overall net effect of America's gun-incidence and/or gun prevalence on its homicide rate.

Fortunately, the United States is unique in having readily available on the Internet more national data on its homicide rate, gathered over a long period of time, than any other country in the world. This enables us to forgo the illogical brandishing of newsworthy anecdotes involving gun abuse or gun heroism. It enables us to avoid the tendentious slicing and dicing of a few years of data, drawn from selected places, tailor-fit to one's prejudices of whatever kind. Indeed, we have 100 years of data, presented in graphic format by the Department of Justice. (18) These data show long-term non-association between America's homicide rate and America's concomitant, steady increase in guns per 100,000 population over the century. Non-association between variation in the homicide rate and variation (always increasing) in society's gun aggregate rules out social causation. (19) Overcoming the social-causation rule-out is enabled by selective data slicing. And there is no question that selective slicing of the data can result in a tailored fit between periodic increases in the homicide rate and increases in gun-incidence. But periodic sharp declines in the nation's homicide rate must embarrass such tailoring, must they not? (20) Indeed, over the past decade, the homicide rate has declined, with a decline in handgun homicides accounting for the bulk of that decline. At the end of the day, (hand)gun-proliferation hypotheses which putatively explain trends in lethal violence must confront the data. In the instant case, their proponents must be embarrassed by it.

Also, the National Safety Council (NSC)has nearly 100 years of data on fatal firearms accidents. (21) Many people think that fatal firearm accidents are increasing and that they claim an increasing number of childrens' lives. The Council's data enable an assessment of this belief about trends too. And it turns out, contrary to popular perception, that fatal firearms accidents have been declining since the mid-1930s and at an accelerating rate over the last decade. According to the NSC, fatal firearms accidents declined 40 percent in the last decade and now sit at the lowest levels ever recorded. If these facts surprise the reader, she should ask from where she has been getting her information. From advocacy organizations, perhaps?

Fundamental Interests and Gun Control

LaFollette says: "I see no compelling reason to think that owning a gun is a fundamental interest." (22)

Hobbes emphasized that all human beings are susceptible to intentionally inflicted, crippling injury and violent death. (23) Exploitation of this vulnerability by credible threat or actual attack jeopardizes everything we care about. Therefore, everyone has a fundamental interest in avoiding these harms. It follows that the right to self-defense must be fundamental on LaFollette's account because it protects a fundamental interest.

Despite the fact that no human being is invulnerable to assault, individual vulnerability to it is not equal. Some people are smaller, weaker, or of lesser interest to society's elite than others. Other things being equal, assaulting them has a lower cost. Recognizing a fundamental right to equalizers eliminates the social discount. Therefore, if fundamental rights should, as far as reasonably possible, have equal value to their possessors, then the state has a duty not to prohibit possession of "equalizers," especially since it recognizes no duty whatsoever to protect any individual from violent victimization.

However, LaFollette disagrees. He is unimpressed by the fact that a gun ban would enrich assaulters and disproportionately impoverish smaller, weaker, less well-connected potential victims of assault by reducing the costs of assaulting them. Nor, apparently, would he see any fundamental incoherence in a situation in which a person wins a homicide acquittal by successfully invoking his self-defense privilege, but yet is convicted for violating a gun-possession ban, despite the fact that, at trial, his gun-use counted as "necessary but not excessive" force when he exercised his defensive privilege.

Perhaps LaFollette thinks that, in a civilized society, the state has a duty to provide individuals all the physical protection they deserve. If so, individuals deserve no protection because the state owes them none.


(1) For clarity's sake, it is important to parse "gun control" even more finely than LaFollette. Otherwise, we will not be able to understand why partisans disagree sharply about what counts as "real" or "serious" gun control.

Generic Gun Control (GGC) refers to legally enforced restrictions specifying: who may not possess guns (and ammunition); who may not purchase guns (and ammunition); impermissible commerce in guns (and ammunition); mandatory record-keeping associated with the manufacture and sale of guns (and ammunition); where guns may not be carried; who may not carry guns concealed; where guns may not be fired; types of guns that may not be possessed; types of guns that may not be manufactured or imported. Generic gun control includes the fine, analytically helpful distinctions LaFollette makes at the beginning of his original Ethics article. Every known society in the world today has GGC. There is nothing about GGC to suggest that it pursues a goal of gun-scarcity in the civilian population.

Dangerous-Possessor Gun Control (DPGC) refers to legally enforced restrictions disabling from gun possession classes of persons who, by virtue of past wrongdoing or legal incompetence, are widely perceived as too dangerous to be trusted with guns and ammunition. For example: American federal law disables from gun possession: (1) anyone charged or convicted of a crime carrying more than a one-year sentence (except for state misdemeanors); (2) fugitives from justice; (3) users of or persons addicted to illegal drugs; (4) mentally incompetent persons as determined by a court of law; (5) persons committed to any mental institution; (6) persons dishonorably discharged from the military; (7) anyone who has renounced U.S. citizenship; (8) illegal aliens; (9) anyone under a court restraining order for stalking or presenting a credible threat to an intimate partner or partner's child. Major federal gun control legislation includes: The National Firearms Act, 26 USC 5801, (1934); the Gun Control Act, 1968; the Firearms Owners Protection Act, (1986); the Brady Handgun Violence Prevention Act (1993), and the Public Safety and Recreational Firearms Use Protection Act (a.k.a. The Assault Weapons Ban, 1994). The latter four are found in the United States Code at 18 USC 920ff. Strict Gun Control (SGC) refers to a legal regime designed to achieve gun scarcity, especially handgun scarcity, among the civilian population, irrespective any due-process proven conduct deficiencies or legal incompetence.

SGC is premised on two beliefs: (1) that the state (and its subjurisdictions) enjoys an absolute and uncontestable gun-monopoly; and (2) that handguns have no legitimate civilian purpose. Under an SGC regime, the government may grant gun privileges or it may revoke them, but it has no fundamental duty to grant them, nor a fundamental duty to avoid revoking them. If the premises of SGC are true, it follows that no individual has standing to complain that the state's denying of his petition for gun-privileges infringes any fundamental interest of his.

In societies that do not recognize serious individual rights against the state, that is, rights serious enough so as to require that conflicting-but-bona-fide legislative enactments be "struck down," the political elite easily assumes that a state gun-monopoly is common sense, beyond serious discussion. However, in a society that recognizes and institutionalizes serious rights against the state, every putative state-monopoly is not only open to serious challenge, but is fair game as well.

Jurisdictions in the United States which have adopted SGC with regard to handguns include Washington, DC, and Chicago. The American Academy of Pediatricians has proposed model SGC legislation for the states that would prohibit the manufacture, sale, and possession of handguns within the state. The provisions of the bill are specifically premised on a "legislative finding" that handguns have no legitimate civilian purpose.

The distinction between GGC and SC42 matters. And LaFollette tacitly recognizes its importance by distinguishing between "gun control" and "serious" gun control. Thus, so-called "shall-issue-concealed-carry laws" which have been adopted in 31 states count as "gun control" when GGC is used as a criterion because the right to carry a concealed handgun is legally restricted to individuals who satisfy statutory criteria. However, to a proponent of SGC, concealed carry laws do not count as "genuine" or "serious" gun control. On the contrary, by their lights, concealed carry laws are the antithesis of gun control because they fail to promote gun-scarcity.

(2) See generally A.L. HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS (1978). According to Higginbotham, American gun laws date back to at least 1639, when Virginia enacted Act X. It provided: "All persons except Negroes are to be provided with arms and ammunition or be fined at the pleasure of the governor and council." (id. at 32) This statute made gun possession by (adult, white male) civilians a duty, albeit underwritten at public expense. Blacks were excluded from the responsibility (and its subsidy), but they were not prohibited from possessing guns. However, in 1680, Virginia passed America's first explicit gun-possession, restriction: A Whereas the frequent meetings of considerable numbers of Negro slaves under pretense of feasts and burials is judged of dangerous consequence ... no Negro or slave may carry arms, such as any club, staff, gun, sword, or other weapon, nor go from his owner's plantation without a certificate and then only on necessary occasions," id. at 39. See also W.D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812 (1968).

(3) See generally, J.H. FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790-1860 (1971). Franklin finds evidence of a free black population in North Carolina as early as 1701. According to Franklin, the presence of free blacks prompted a "growing realization that free Negroes in a slave society must be carefully regulated lest their very presence serve to overturn the system," id, at 10.

(4) For example, North Carolina's 1840 law provided:

That if any free negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife, unless he or she shall have obtained a license therefor from the Court of Pleas and Quarter Sessions of his or her county, within one year preceding the wearing, keeping or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor.

In 1844, Elijah Newsom, a free person of color, challenged this law on grounds that it violated his rights under the Second Amendment to the Federal Constitution and under North Carolina's Constitution. North Carolina's Supreme Court rejected both arguments. Newsom's Second Amendment claim was rejected on the ground that the federal Constitution constrained the U.S. Congress, not the legislatures of the several States. In a harbinger of Dred Scott, the Court rejected Newsom's N.C. Constitutional claim on grounds that "free persons of color in this state are not to be considered as citizens in the largest sense of the term," State v. Newsom, 27 N.C. 181 (1844). Newsom partly reversed the Court's 1838 decision in State v. Manuel, 20 N.C. 114 (1838) in which it was held that free persons were indeed citizens of North Carolina, and so could invoke some of its Constitutional protections. However, like women and children, free persons of color were not full, equal citizens.

(5) Scott v. Sanford, 60 U.S. 393 (1856). It bears emphasizing that Dred Scott was a "privileges and immunities" case, not a Second Amendment, militia-related case. Thus, the Court focused on the Constitutional comity provision in Article IV, Section 2, and held that blacks were excluded ab initio from the "privileges and immunities of Citizens in the several States." That Justice Taney saw a distinction between a "privileges and immunities" foundation for a citizen's right to arms and the Second Amendment's "militia purpose" is further underlined by Taney's choice of words, namely, that the right from which blacks were excluded, in perpetuity, was an entitlement "to keep and carry arms wherever they went" not a right "to keep and bear ..." (my italics).

(6) II English Historical Documents 416-17 (D. Douglas, ed. 1953).

(7) LaFollette, Gun Control, 110 ETHICS, 266 (2000).

(8) Aristotle, Politics III.5..1278b, 10-15

(9) Id. at II.8.1267b21-1268a25.

(10) Id. at IV.13.1297b.

(11) Id. at VII.8.1328b, 8-10.

(12) LaFollette, supra note 7, at 281.

(13) Id. at 263.

(14) Id.; see also LaFollette, Gun Control: The Issues, in this volume, at 17.


(16) See Feldman &Johnson, The Self Object Function of Weapons: A Self Psychology Examination, 20 J. AM. ACAD. OF PSYCHOANALYSIS 561 (1992). The authors elaborate a Freudian theory of male deviance (phallic narcissism), according to which gun ownership sublimates subconscious distress resulting from obsessive fears of sexual inadequacy. They note that John Hinkley, killer of John Lennon, wrote a poem entitled, "Guns are Fun," which goes, in part, "This gun gives me pornographic power ... and the world will look at me in disbelief, all because I own this inexpensive gun.... Guns are loveable. Guns are fun. Are you lucky enough to own one?," id. at 570.

(17) For example, Thomas Jefferson wrote to his nephew, Peter Carr: "A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives a modest exercise to the body, it gives boldness, enterprise and independence to the mind ... let your gun, therefore, be the constant companion of your walks. Never think of taking a book with you," 8 THE PAPERS OF THOMAS JEFFERSON 407 (ed. Julian Boyd, 1953).

(18) See <> (2/21/ 01)


(19) See <http// htm#weapons> (2/21/01).


(20) See <http// #gunpctage>(2/21/01).


(21) See <> (3/7/01)


(22) LaFollette, supra note 7, at 265.

(23) T. HOBBES, LEVIATHAN, ch. 13 (E. Curley, ed. 1993).

(24) See Warren v. District of Columbia, 444 A.2d 1 (1981) for a crisp statement of the "no duty" rule in the face of facts likely to provoke outrage in the most mild-mannered; see also DeShaney v. Winnebego Co. Dept. of Soc. Services, 489 U.S. 189 (1989), holding that" a State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services."

Lance K. Stell is Charles A. Dana Professor of Philosophy and Director of the Program in Medical Humanities at Davidson College, North Carolina.
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Comment:Gun control and the regulation of fundamental rights.
Author:Stell, Lance K.
Publication:Criminal Justice Ethics
Geographic Code:1USA
Date:Jan 1, 2001
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