In the first installment of this topic, I established what I understand to be the correct interpretation of the Second Amendment, namely that it established an individual right to own weapons, albeit to serve the collective purpose of creating a pool of armed citizens who could be mustered to respond to threats to the general populace and, by extension, the state which represents them. I left unaddressed the issues of the use of weapons for self-defense and deterring and/or resisting "domestic usurpations of power by rulers" (to quote Justice Joseph Story); it is the former of these two that I will turn to now, leaving the latter for a third installment.
The Second Amendment does not explicitly provide for the right to use the weapons a citizen may keep and bear for the purpose of self-protection, but it may readily be construed from constitutional "penumbras" (so detested by American conservatives where personal privacy is concerned, but readily embraced when it comes to matters of gun ownership), other law and historical evidence. First, the right to defend oneself against an assailant is well established in every legal system with which I am at least passingly familiar. However, while the right to self-defense may be uncontroversial, considerable variation may be found in which means are considered permissible. In the case of the United States, this is where historical context comes into play. It must be considered that from the beginning of the Colonial Era through to the end of the War of 1812, the militia was "enrolled"; that is to say, conscripted.
The Militia Act of 1792 required all free, able-bodied men ages 18-45 to serve in the enrolled militia and to provide their own weapons and equipment. (Michael Doubler, 2003, Civilian in Peace, Soldier in War: The Army National Guard, 1636-2000, Lawrence: University Press of Kansas)
In doing so, the Act essentially formalized into American law what had already been more or less the case prior to and during the gaining of independence*, and indeed in Anglo-Saxon culture going back centuries (as I noted in my previous post with regard to the practice of fyrd). In a context where the state requires a free man not only to bear arms in its defense, but also to acquire at his own expense the weapons he needs for that task, it would seem more than a little unreasonable to then forbid him to use those same weapons for the immediate protection of himself and his family. It must also be borne in mind that, for colonists in early American history, the distinction between defending oneself and defending one's community was largely a matter of degree; the problems colonists had to deal with, like bandit, pirate, Indian or (later) British raiding parties, presented a threat to the entire community, and participating in repelling such threats was simply a matter of enlightened self-interest, for even if such raiders did not (yet) specifically menace one's own residence and its occupants, it was only a matter of time before they got round to doing so. There was a long-standing tradition among New England Puritans that, following Sunday worship, the men left the church first; the reason for this was so that the men, who came to church armed (as required by law in Massachusetts from 1640 onwards), would be the first to meet any hostiles who might have come into town during the service, while the women and children remained in the comparative safety of the church (or, to use the correct term, meetinghouse). New Englanders were also legally obliged to provide armed assistance to law enforcement, in the form of the village constable, if the latter encountered a problem too great to deal with single-handedly.
However, this is the 21st century, not the 18th or the 19th; entire communities are no longer menaced by marauding groups of pirates or Native Americans, and even biker gangs are more of a threat to each other (fighting over illegal drug markets) than they are to the average citizen. Police departments are larger, and their members can usually call on the assistance of a special response team of some sort, be it the department's own SWAT team in large cities, or some kind of inter-agency unit (here in Thurston County, Washington, the local SWAT team is administered by the county Sheriff's Department, and composed of members of that department and various municipal police departments in the county). There are nonetheless legitimate arguments to be made why private citizens should not be prevented from owning, and using, guns for the purpose of self-defense. The Supreme Court of the United States has ruled on numerous occasions that law enforcement agencies cannot be held accountable for failing to prevent crime, or intervene in those taking place. Even when, as in the case of Castle Rock, CO v Gonzales, said failure strongly appeared to stem from unwillingness, rather than inability, on the part of the police to adequately perform their job. When the state abdicates its responsibility to protect the life and limb of its citizens, those citizens may legitimately claim the right to perform that task themselves, and to do so with the most effective means available, which at present means firearms.
In an appendix to his book The Gift of Fear, Gavin de Becker argues, while not advocating gun control, that there is a practical need for what he calls "bullet control." While I disagree with the details of his argument (which mainly relate to gun locks), I think his principal point is valid. Bullets do not respect property lines, or make the distinction between legitimate targets and innocent bystanders. Given current population densities, the nature of construction materials used in American housing, and advances in firearm ballistics since the 18th century, discharging a firearm in an inhabited area is significantly more likely to lead to an innocent being hit than in the past. Gun advocates argue that the right to self-defense is predicated upon the human rights to life and security of person (as expressed, for example, in Article 3 of the Universal Declaration of Human Rights; note that the UDHR did not establish the "classic" human rights, but rather, codified ideas which had been articulated during the Enlightenment at the latest). These latter rights, however, also grant persons the right not to be killed as a result of incompetent handling of firearms by their fellow citizens.
Even though many gun ownership advocates may be loth to admit it, no right is absolute. In a free society, as the United States purports to be (and which, to a very great extent, it still is, certainly more so than most, possibly all, others currently in existence), the freedom of any one individual or group can and must be limited to the extent that this freedom does not infringe upon the freedom of others, and vice-versa. We accept, for example, that the right to freedom of religion does not extend torturing or killing members of other sects which one's own considers to be heretics (as Massachusetts Puritans did to Quakers during the Colonial Era). As the saying goes, "your right [i.e. freedom] to throw a punch stops where my face begins"; a negligently discharged firearm throws the equivalent of a punch capable of traveling several hundred meters, penetrating one or more walls and killing a human being on the other side. John Stuart Mill, in the first chapter of his essay "On Liberty," states that:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
Emphasis in italics mine. The state, then, has a legitimate interest, acting on behalf of its citizens, to regulate ownership of firearms for the sake of limiting the likelihood of unintentional deaths resulting from unsafe firearm use by others. That doesn't mean I favor gun control measures, as that term is commonly used; in my opinion, the overwhelming bulk of restrictions imposed on gun owners with regard to what kind of firearms (and firearms accessories) they are allowed to possess utterly fails to address actual public safety concerns.
Here's a scenario I believe is preventable, and should be prevented: A man is at home, familiarizing himself with a newly bought handgun by "dry firing" it. Unfortunately, he has failed to properly clear (that is, remove all ammunition from) the weapon, and when he pulls the trigger, it discharges. The bullet exits the man's house, penetrates the house across the street, and strikes a female occupant in the head, killing her, and narrowly missing her eight month-old infant (who is left motherless as a result). This is not a hypothetical scenario: I took it from Kathy Jackson's page on safe dry fire**. It is also not a scenario that would have been prevented by any legal restriction advocated by the gun control lobby:
- Limitations on handgun ownership? This particular case involved a handgun, but it could have happened with any cartridge-firing weapon.
- Restrictions on magazine size? All it takes is for one round to be left in the chamber.
- Limits on semi-automatic weapon ownership? See previous points.
- Bans on "assault weapon" features, like pistol grips, folding/collapsing stocks, muzzle flash hiders etc.? None of these make a difference to the ballistics of the unintentionally fired bullet.
- Mandatory magazine disconnects? You can't practice dry fire if the gun won't fire, so the shooter would have inserted a magazine, and even if that magazine had been empty, that one round in the chamber would still have gone off.
- Requirements that guns be equipped with trigger locks or internal locks? Again, you can't practice dry fire if the gun won't fire, so any such locks would have been disengaged.
- Requirements that guns be stored in lockable containers? That may keep weapons out of the hands of unauthorized persons, but the shooter was the owner of the weapon, and in any event, he would have had to take the weapon out to practice dry fire.
- Mandatory background checks on would-be gun purchasers? Evidently, the shooter passed his, which is not surprising since he didn't intend to shoot his neighbor. For that same reason, a waiting period wouldn't have helped either.
This incident illustrates that what is commonly understood under the term "gun control" largely misses the point when it comes to providing for public safety. The main threat to citizens' life and limb where guns are concerned stems not from any specific piece of firearms technology—be it magazines capable of holding more than ten rounds, pistol grips on long guns, or whatnot—but from irresponsible handling, both intentionally (i.e. deliberately using a firearm for criminal activity) and unintentionally (as in the aforementioned scenario). Ensuring that private owners are competent to handle firearms will go significantly further in cutting down on deaths and injuries inflicted by otherwise law-abiding citizens than limiting the types of firearms they can own.
That said, this incident also illustrates a fallacy in the rhetoric employed by "gun rights" advocates, namely that humanity is divided into "criminals" on the one hand and "law-abiding citizens" on the other, that ne'er the twain shall meet, and that public safety is best achieved by keeping guns out of the hands of the former while not in any way limiting the latter's ownership of firearms. The obvious problem is that, if those are the only two categories you allow for, the difference may be just a single negligent discharge, and a subsequent assault or manslaughter conviction, away. Conversely, in any country operating under rule of law, a person is not legally considered a criminal until he has, at the very least, been convicted of committing a crime; thus, measures designed to keep firearms out of the hands of convicted felons will not be effective on individuals who do not yet have a criminal record, but are acquiring a weapon which will be used in a crime at a future date. Very simply, there is no way to reliably distinguish a law-abiding citizen from a prospective offender. Or, indeed, a responsible gun owner from some idiot who's going to wind up shooting a neighbor or other bystander†. In addition, one cannot ignore cases of spree killers like James Huberty, George Hennard, and Mark Barton, who were "law-abiding" gun owners right up to the moment they went on the rampage, each murdering a dozen people or more.
I don't like the idea of restricting people's freedoms for acts they have not yet committed, and might never commit, but I am equally reluctant to accept that the only way determine that someone is mentally unfit to own a firearm requires that someone else be put in a body bag first. The answer the NRA proposes is heavier sentences for crimes involving guns; this is wholly inadequate for the types of shooters I've described. The deterrent effect of increased judicial punishment is dubious to begin with, but those who inflict injury or death due to negligent discharges do so unintentionally and are thus unlikely to have considered (much less be deterred by) the consequences of the crime they didn't intend to commit. At the other end of the spectrum, spree killers apparently tend to be motivated by an urge to kill as many people as they can before they either kill themselves, or are killed by law enforcement; you might as well try to deter a suicide bomber by threatening him that, if he succeeds, he'll be sent to prison.
And I do believe it's incumbent upon the gun rights advocates to come up with a solution, unpalatable though it may be, lest another, even less palatable one, be imposed upon them. Having read some threads about negligent discharges on gun owners' fora, I'm frankly appalled at the rather nonchalant attitude displayed by many gun owners. Admittedly, I don't know how representative these views are of gun owners as a whole, but I wouldn't want to live within two blocks of these particular people. Many gun rights advocates accuse proponents of gun control of believing that nobody can be trusted with firearms, except agents of the state such as military and police personnel. This is a straw man fallacy (with a dash of ad hominem, as it is implied that gun control advocates hold their opinions because they are "élitist" and/or "statist"), because really, all that is needed to justify the pro-gun control position is that some people can't be trusted with firearms, absent supervision by persons in authority. Given that, every year, there are several hundred unintentional firearm deaths in the United States (730 in 2003, 661 in 2004; source CDC), and probably thousands of non-fatal injuries caused by firearms‡ in addition, such a view is supported by evidence. Nor do gun control advocates necessarily believe that soldiers and policemen are inherently more trustworthy with firearms merely by dint of being agents of the state; the point is that, unlike private citizens, military and law enforcement personnel are required to periodically demonstrate that they are capable of properly handling a firearm, and are subject to at least some measure of scrutiny on the part of the hierarchy of which they are part to determine that they are psychologically stable enough to be trusted with arms and live ammunition.
Admittedly, the number of deaths and injuries inflicted, intentionally or otherwise, using legally possessed firearms (the overwhelming majority of guns used in crimes are acquired illegally) is a drop in a bucket compared to accidental falls (18,535 in 2004), contact with or exposure to toxins (19,250 in 2004) and the 500-pound gorilla of accidental death in America, motor vehicle accidents (46,933 in 2004; source for all three figures CDC, again, with similar figures reported for 2003). Still, for a person to be killed in one of these ways requires a certain voluntary assumption of risk on the part of that individual, by choosing to climb a ladder, or use toxic household chemicals, or participate in traffic. Moreover, because we assume such risks knowingly, we are in a position to take precautions to minimize the risk involved; to be forewarned is to be forearmed, and all that. But we rightly do not willingly and knowingly accept the risk that we might be injured, maimed or killed in our own homes, due to no fault of our own, but purely because some yahoo proved himself incapable of meeting the responsibility concomitant to the exercise of his Second Amendment rights. I am not a gun owner, but I handled firearms on numerous occasions during my (compulsory) military service, and I take pride in having scrupulously observed the safety rules for firearms during that period. I never came close to having a negligent discharge, and I expect no less from those who handle firearms by choice.
For its part, however, the gun control lobby misses the mark by not actually supporting measures which substantially address this concern. Instead, its members operate in an opportunistic fashion, seeking to get any type weapon banned which has recently been used in a high-profile shooting incident, thereby slowly whittling away at the Second Amendment, but without ever challenging it directly, for the lobby knows it would most likely lose such a confrontation. I am not unsympathetic to the position of people who support gun control in general; I believe the overwhelming majority are motivated by a sincere wish to prevent what they perceive to be unnecessary loss of life, though this motivation is often accompanied by a hefty dose of self-righteousness and selective reading of information (though it should be noted that the latter charge applies equally to many gun enthusiasts). The problem I have with the gun control movement is that the organizations at its forefront—the Brady Campaign, the Violence Policy Center, et al.—present highly tendentious, and sometimes downright mendacious, information to support their claims. In my book, if you have to lie and obfuscate to get your point accepted, you yourself evidently don't think it will stand on its own merits. So why should I agree with you?
If there is one phrase which highlights the dishonesty on the part of both extreme sides of the gun ownership issue, it is the slogan "if guns are outlawed, only outlaws will have guns." On the one hand, this is a gross oversimplification on the part of the gun rights lobby. The overwhelming majority used of guns used in crimes in the US may be acquired illegally, but the primary source for the black market is theft from private owners. The Houston Chronicle conducted a four-part special report on guns in America in 1997. One segment describes how the black market operates:
The street gun trade is inextricably tied to the street drug trade, say Texas convicts.
Addicts burglarize homes and trade stolen guns for drugs. The dealer sells the guns to the more brazen carjackers and robbers. A murder weapon dumped in the bayou is quickly and easily replaced, and so the cycle continues.
"Guys don't steal VCRs no more, TVs no more," Hughes says in an interview at the Texas prison system's Connally Unit in Kenedy. "First thing the guy's going to do is look up under the bed, under the shelves. He's going to look for a gun immediately."
That's it, just guns and jewelry. Everything revolves around he who is selling crack. This crack dealer, all the guns are going to come to him. He's going to distribute the guns how he feels."
According to criminologist Gary Kleck, speaking in 2000, at least three quarters of a million guns are stolen from legitimate gun owners every year, a number which more than meets the criminal demand for guns. Gun rights advocates like to point out that weapons go missing or are stolen from federal law enforcement agencies, but we're talking 1,012 weapons over a four-year period there, for an annual average of 253; negligible when compared to thefts from private owners. Thus, if it were possible to magically cause every legally privately owned firearm in America to disappear tomorrow, it would deprive the criminal arms market of its primary supply source. Thus, "if guns are outlawed," it will be significantly more difficult for outlaws to acquire guns. Unfortunately, it will not be impossible; there will always be a supply from other sources, such as theft from government agencies and smuggling. But even if there were not, even if the elimination of legal firearms would eventually cause the supply of weapons to the criminal black market to dry up, there would be an interim period in which indeed "only outlaws would have guns," and citizens would be unable to offer resistance to armed home invaders and the like. Even if gun death could be completely eliminated over time, how—to paraphrase John Kerry—do you ask a man, or woman, or child, to be the last to die?
* - This fact is eagerly overlooked by the Libertarian Party, which idolizes the Founding Fathers and the Bill of Rights, but blithely ignores the practice of the "enrolled militia" when it claims that "conscription is slavery." Interestingly, it cites the Thirteenth Amendment to support its position, despite the fact that this amendment is not part of the Bill of Rights, and was adopted due in no small part to the efforts of Abraham Lincoln, whom many libertarians vilify. Tempted as I am to engage in an explanation why I (NB as a former conscript) do not think conscription does not equal—in fact, does not even remotely resemble—slavery, that is best left for another post.
** - I should note that, of gun owners who write on the internet (which includes those who only post on discussion fora), Mrs. Jackson is one of the most responsible, least complacent, and thus one of the most effectively safety-conscious, I have come across. If all gun owners were like her, much of this essay would be redundant.
† - I'm not overly concerned about gun owners shooting themselves; that's equivalent to mountain climbers, bungee jumpers or practitioners of other "extreme" sports dying as a result of the risks they take. It's endangering others I object to.
‡ - The CDC reports 30,136 firearms injuries in 2003 and 29,036 in 2004, but this number represents all firearms injuries, including assaults, intentional self-harm (i.e. botched suicides), legal interventions and unintentional shootings. Nevertheless, one may approach the number of unintentional injuries by comparing ratios of firearm deaths by cause. Very roughly, the ratio of firearms deaths for 2004 was: legal intervention - 1: unintentional - 2: assault (homicide) - 34: intentional self-harm (suicide) - 50. Ergo, for every lethal unintentional shooting, there were ~17 homicides and ~25 suicides. Unintentional shootings account for ~2.3% of firearms deaths, and if this percentage were applied to firearm injuries, only 667 (= 0.023 * 29,036) could be attributed to accidental shootings. However, it must be borne in mind that anyone intent on committing suicide with a firearm has the luxury of being able to aim carefully for a vital organ, and even if the shot is not immediately fatal, such an individual may have sequestered himself in a place where he will not be discovered in time for a medical intervention to save him; thus, it may be plausibly argued that suicide will figure far higher proportionally in fatal shootings than in non-fatal ones. Similarly, perpetrators of "assault" shootings are significantly more likely to be "shooting to kill" (deliberately aiming at "center of mass") than those who commit unintentional shootings. It is thus highly plausible that unintentional shootings represent a much higher proportion of non-fatal shootings than they do of fatal shootings, and thus, it is not unreasonable to suspect that unintentional shootings result in at least two or three thousand non-fatal injuries every year.
