Saturday, March 22, 2014

New Jersey's Law Against Concealed Carry Violates Right to Self-Defense

New Jersey law provides for concealed carry of a gun in public, but the conditions make it virtually impossible in practice for law abiding, upstanding citizens to get a permit to carry a concealed weapon. This, contends NJ resident Max McGuire in a NJ Star-Ledger letter (Gun Rights are Lacking in New Jersey), not only violates the Second Amendment but indirectly threatens all rights:

    [I]n . . . New Jersey, "may issue" might as well be "no issue" [of a concealed carry permit]. You must demonstrate a"justifiable need" and an urgent need for self-defense based on past instances or threats of violence.
    Imagine if you were forced to show a justifiable need before you were allowed to vote or before you were given a trial before a jury of your peers.
    And as long as it's acceptable to require a "justifiable need" to exercise one right, then the entire Bill of Rights is in jeopardy.

Leaving aside the constitutional issue, which is complex, McGuire is correct to identify the role of principles and precedent and how they affect the broader context regarding rights.

The next day, a letter by David Twersky challenged McGuire's assessment, arguing that Constitutional rights come with restrictions:

    Even the writer’s two examples have restrictions. No one argues that you have a right to vote, yet this right is limited to citizens, at least 18 years old and, in many states, not convicted of felony.
    The right to a jury trial is restricted, too. In most states, you are not allowed a jury trial in family law cases, such as divorce and child custody, or when the maximum imprisonment is six months or less.
    Just as freedom of speech doesn’t allow us to yell “fire” in a crowded theater, or freedom of religion does not permit animal sacrifice, the Bill of Rights is regulated. Yet the writer would have us believe that limiting the right to carry concealed weapons . . . puts the entire Bill of Rights in jeopardy.

As I rebutted in some comments to Twersky's letter, there is a major difference between Twersky's examples and NJ's concealed carry law. He confuses the means of rationally implementing rights in law, a philosophical and contextual question, with violating rights. Let's take the rights to vote, a jury trial, speech, and religion in turn.

The "regulations" on voting do not restrict—i.e., violate—the right to vote, unless one believes that every non-American in the world, of any age, should vote in U.S. elections. Voting is a derivative right. Age and citizenship requirements related to choosing political leaders do not violate the fundamental rights to life, liberty, property, or the pursuit of happiness because the state in a free society does not possess the means to violate those rights.

Likewise, the right to a jury trial does not mean the court system should be clogged to the point of disfunctionality with juries for every minor dispute. Again, the issue is contextual. A trial by jury is a derivative right. Restricting that right to serious charges is not at all an infringement on the basic right to a presumption of innocence principle and the right to be judged in an objective venue, or that when a jury is appropriate, it is constituted with one's peers.

The free speech example is not about freedom of speech at all. No right gives anyone the right to violate the rights of others. Yelling fire in a crowded theater fraudulently disrupts the operation of the theater and endangers the physical safety of the patrons, violating the rights of the theater owner and his customers. Rights are sanctions to freedom of action, so long as one's actions don't violate the rights of others. Forbidding a person to yell fire in a crowded theater does not violate anyone's freedom of speech. Such laws protect individual rights by identifying and proscribing a rights-violating action.

The same goes for freedom of religion. (Laws against wanton animal cruelty is a separate issue. Animals do not and logically can not possess rights, so I'm not sure here such laws fit into the structure of a proper government. But again, the issue is not about one's freedom of religion, but about one's actions.)

In none of these cases are the underlying rights expunged.

Not so with NJ's concealed carry law. The right to self-defense, which is inherent in the right to life, IS being expunged—albeit through the back door of making the rules so stringent as to effectively annul the right to carry a gun for self-protection.

McGuire is absolutely correct when he says that "as long as it's acceptable to require a 'justifiable need' to exercise one right, then the entire Bill of Rights is in jeopardy." Principles have consequences for a broad range of related specific concretes, and bad principles have bad consequences. If we accept the premise that individuals must get permission from government officials for the privilege of exercising any one fundamental right, all rights are in danger under that same premise, and the concepts of rights and rights-protecting government are turned on their heads. It is akin to an automatic presumption of guilt without evidence. Such a premise is a regression to the darkest days of humanity—the days of omnipotent government and rule by arbitrary, non-objective law—i.e., brute force—against constitutionally defenseless citizens.

A "regulated right" is a contradiction in terms. One must distinguish between rules and procedures for implementing and anchoring rights in law, and regulations that restrict and violate rights. Twersky fails to do that.

Rules shouldn't effectively prohibit the exercise of rights, as is the case with NJ's concealed carry laws. Protecting rights is not the same as regulating rights.

So how should the specific issue of concealed carry be handled, and why? Guns in the hands of incompetent or irresponsible individuals threatens others. Therefor, a concealed carry permit (or even gun ownership) should not be granted to people who are objectively determined to be mentally incompetent, have a violent criminal history, or are not properly trained in gun use. Otherwise, every individual has a right to own or carry a gun without demonstrating "justifiable need" or some such criteria to government officials. Twersky's free speech example actually makes the point, as noted above. With guns, as with speech and other rights, there should be no restrictions or "regulations" on the exercise of gun rights by rights-respecting citizens.

For more indepth discussion of this issue, read my blog post "Is There a Right to Carry a Gun in Public"?

Related Reading:

Is There a Right to Carry a Gun in Public?

Rand Paul, Title 2, and the Importance of Principles


Mike Kevitt said...

What, as briefly as possible (if that's brief enough here), is the complex constitutional issue about the right to keep and bear arms?

I think it's simply this: you have the inalienable right of self-defense, period, so they wrote it into the Constitution via the 2nd. Amend. It recognizes the right to 'bear arms'. You have your bodily, phys. corporal means, even if you're a 100 lb.,5' tall woman, so use it. If you need more than that, such as a gun or knife, ya gotta get it, within your rights. When you get it, use it when & if needed.

The only complication I see stems from the fact that they couldn't leave the right to implication, to what the Constitution said as drafted, without the amendments, such as the 2nd. Amend. Implication left the right to bear arms too vulnerable to being denied. So they simply wrote it in, as the 2nd. of 10 amendments. That's as complex as it was.

Today, they wanna blatently deny the EXPLICATION! Whaddoowe do about that? What if they want to deny the whole written, explicit Constitution? What would we do about that? I'm not too sure about how complex the issue is.

Any comment?

Michael A. LaFerrara said...

The constitutional issue regarding guns is complex because the 2nd Amendment right to bear arms is where the convergence of individual rights and the government's role as society's designated rights protector takes place.

The government can not fulfill this role unless it has a legal monopoly on the use of retaliatory force. This means, quite simply, that the government must have supervisory authority to regulate private sector gun ownership, while also upholding the individual's right to self-defense in instances where the government is not there in the moment of the commission of an act of aggression. I would call this a complex legal issue. For more, see my further comments on the issue here and here.

Mike Kevitt said...

I'll look at your two further comments. For now, I think laws about this, or about anything else, gives only principled guidance for any and all actual situations. In cases at law (or at 'bar'), the judiciary applies the principle to determine guilt or innocence of the charge, including whether or not a victim of aggression 'took the law into his own hands' or not.