Saturday, September 21, 2013

Is There a Right to Carry a Gun in Public?

Recently, the US Supreme Court considered, then declined, to hear a case that would have had monumental ramifications for the issue of guns. The case involved a challenge to a strict anti-concealed weapon carry law in New York. The plaintiffs claim that the law violates their Second Amendment rights.

Though the court declined to tackle the issue for now, the issue is timely. As the Associated Press's Mark Sherman notes, "Legal scholars say the issue of whether people have a right to be armed in public is likely to win high court review at some point." When it does, what principles should guide its decision?

The right to self-defense is inherent in the right to life. But, self-defense implies the use of force. Force is the enemy of a civilized society, and therefor must be legally banned from private relationships. But, there are two types of force; initiatory and retaliatory. The first is always unjustified, and the second is not only justified but required if a society is not to be overrun with criminals. So, how should the issue of force be handled?

In any civilized society, the initiation of physical force is strictly banned by use of all citizens, including citizens in any capacity as government officials. At the same time, the defensive use of physical force must be the exclusive monopoly of the government. A society in which every individual can take the law into his own hands in his own self-defense is not a society at all, but anarchy.

Instead, force must be put under the objective control of a government, and subject to ironclad constitutional limits restricting the government's use of force to defensive or retaliatory purposes. All laws must conform to this principle. The transfer of the individual's right to use retaliatory force to the government is a requirement  of any individual who chooses to live among other people.

In a civilized society, where the government holds a monopoly on the use of self-defensive, retaliatory force, government must regulate the use of that force. Private citizens may use retaliatory force only as permitted by government, and government officials may use force only where permitted by a proper constitution. This means that government may not initiate force against citizens who themselves have not initiated force, such as by regulating private voluntary production, trade, and contract.

The government has no right to do so because such regulation entails the initiation of physical force against private citizens where no intended or actual rights-violating actions are evident. Government's sole purpose is to protect individual rights; that is; to act as the individual's agent of self-defense. (See my Where Does Valid Law End and Regulation Begin?)

However, based upon its role of self-defensive agent, with its monopoly on the use of force, the government can and must regulate citizens in the area of defensive or retaliatory force. For example, private citizens may use force in self-defense only when permitted by law, such as when a citizen[s] is in imminent physical danger from a thug. The government may also have licensure authority over private armed security guards and companies. For adult individuals, proof of appropriate training and a criminal and mental background check may legitimately be required for gun ownership, including right-to-carry.

But, given that the right of self-defense is fundamentally an individual right, these regulations should not become a tool of anti-gun zealots to violate rights by unreasonably restricting gun ownership. Getting a gun license, including the right to carry a concealed weapon, should be as easy as getting a drivers license, and no more restrictive. For responsible, properly trained citizens, gun ownership should not only be permitted, it should be encouraged. If morally upstanding citizens can be trusted as armed policemen, then why not as armed private citizens? Imagine a society in which the police force is supplemented by what would in effect be a government regulated private, albeit informal, militia. What chance would armed thugs have in such a society?

The right to life encompasses the right to self-defense, which implies the right to possess the means to protected oneself (and others). This includes the right to concealed carry. Hopefully the Supreme Court will some day take on the issue, and side with individual rights.

Related Reading:

Gun Control Should Focus on Principles, not Guns

2 comments:

Mike Kevitt said...

It might be good to email the contents of this posting to the leadership of the NRA. You mention licensing gun owners. What about registering guns? Couldn't that be done as cheap and easy as licensing? Would it be useful, meaning, a legitimate aid to the government in its proper function? Maybe the NRA needs instruction on these things. That might make it more effective, and more secure and permanent in its effect, especially in the proper philosophical context.

As an aside, I ask, does the idea of government's proper role in guns, their ownership and use, apply to motor vehicles, too? Despite it's exercise of such role for nearly 90 years, now, I'm not sure. Motor vehicles (and roads) don't involve government's proper function in the ways guns do. There must be safety, from unskilled driving, on the roads, but that's not a government function. Crime control on the roads, as everywhere, is, but does that legitimize government licensing of drivers and registering of vehicles?

Mike LaFerrara said...

On the one hand, the registering of guns could aid law enforcement. On the other hand, does the government have any business knowing what type or how many guns one has, so long as those guns are legally permitted? I lean toward no registering of guns, at least for guns obtained for self-defense on one's own property.

Driving is an interesting subject. The government certainly has a role, in my view, since a car is an instrument of deadly force that can victimize innocents. I'm not sure of the best way to codify government's role in law, as it relates to it rights-protecting function. But here's the thing. Traffic laws, licensing, and vehicle registration and identification tags handled by government have been around for a long time, as you say. Do they in and of themselves interfere in an individual's rights to life, liberty, property, or pursuit of happiness? I don't see how they have or can, so long as they are objective and easily attainable, as they generally have been. Of course, licensing and vehicle registration could probably be handled by private organizations.

One thing I do believe: Any nut case should not he legally allowed to use public roads—government or private—just as the mentally ill or people with a violent criminal history should not be allowed to own guns. I think Second Amendment champions are making a big mistake in rejecting any role for government. They are conceding the entire "gun control" debate to anti-gun zealots, helping them to look reasonable.