Though fairly well-read in constitutional law, history, and political science, I am no expert on the gun rights v. gun control debate.  But since I do have a policy preference with respect to guns, and I intend to involve myself in discussions with people on both sides of this discussion as a way to promote my preferred policy, perhaps I should lay out my thinking on the subject.

First, as I’ve written here on this blog and elsewhere, I do not accept the concept of “inalienable” rights.  Rights are always contestable, and justice claims compete with one another.  This competition occurs in a context of social discourse and relations that privilege some claims over others.  Sometimes power and force determines winners, and sometimes prevailing social norms settle the claims.  But rights have no source other than power, discourse, and shared social understandings.  They exist only in the sense and to the extent that we understand them as part of social reality.  Indeed, writing them down in constitutional documents and then applying them inconsistently (non-citizens have no constitutional protection, for example) suggests that even people who claim a natural source of rights do not believe that this make specific justice claims universally valid.

Also, I think that the people who wrote the founding constitutional documents for the United States included the Second Amendment as a balance to the Article 1 Section 8 power of Congress “To provide for organizing, arming, and disciplining the Militia.”  Anti-Federalists worried that the central government would provide for a standing army and then use this authority to disarm state militias, leaving the States less sovereign and vulnerable to abuse.  Southerners, especially, felt open to an indirect attack on slavery–without militias, they could not control the slave population or quell slave revolts, so they worried that Congress could end the institution by disarming them.  Without this collective power to subdue the black population, they could not continue to keep them in servitude, whether or not the institution remained technically legal.  In any event, the Founder’s writings and the debates on the Constitution contain more evidence for this view than for the alternative–that they intended to protect an individual right to self defense.

With respect to policy, I am familiar with the academic literature and statistical evidence on the effectiveness of gun control laws, and the research on whether the prevalence of gun ownership or carry laws deter crime or limit criminal activity.  I know that John Lott fabricated at least some of his surveys, and that Duggan offers a powerful critique, first in terms of increased gun ownership correlating with an increased homicide rate, but more importantly with respect to the limited effect increased gun ownership has on other crime.  I am also familiar enough with the work of other researchers, (e.g., Kleck, Gertz, Hemenway, McDowall, Loftin and Presser, and others) to think that their work does not conclusively establish that gun control is effective, or that increased gun ownership has an effect on crime except to make it more likely in households where guns are present.  This should surprise no one, since research like this rarely gives conclusive answers.

My experience discussing the issue over the last week or so (e.g. here, here, and here, with these four gentlemen participating, as well as on FBL), has given me insight into non-academic arguments in support of gun rights.  This consists chiefly of a claim that any collective right to keep and bear arms must carry embedded within it a corollary individual right, since, variously, militia members could not fight their way to the formation site, or would have to depend on government to arm them, or…something.  I think this could be an interesting and potentially persuasive point in the hands of someone willing and able to support it with logic and evidence, and I would like to hear the argument.  Instead, gun rights supporters like Mike and Linoge rely on repetitive stating of the point in the form of “gotcha” questions, along with “if I’m one so are you” finger pointing, or whining that gun control supporters are bad people because one of them admitted owning a gun illegally, another threatened to punch someone’s face in, and that British woman says mean things about gun owners.  This rhetorical debating style makes them sound more like ten year olds on a playground worried that the teacher will take their toys than grown up humans with a principled point to make.  In any event, I haven’t seen a coherent defense of this claim beyond repetitive demands that I explain how they could be wrong about this (which I give, at least in part, here, by the way).

The gun rights proponents with whom I have discussed this issue lately also like to argue from anecdote.  Many gun rights sites consist largely of examples of criminal acts combined with an assertion that the victim(s) could have defended themselves had they been armed, or of armed citizens who somehow deterred or stopped a criminal.  This often includes massaged statistics (see links above) showing the prevalence of crime and the failure of government to act, whether generally or in specific cases.  This seems intended to create an impression that rampant crime requires an armed citizenry, and usually comes couched in “don’t-you-want-to-protect-your-family,” and “what-if-your-daughter-gets-raped” rhetoric. *  All of this suggests belief in a “1% solution” social environment, where the slightest risk of becoming a crime victim requires constant vigilance and pervasive arming of  citizens, both public and private, to keep the evil criminals, who are everywhere, from walking up the driveway to rape and pillage while pretending to ask for help because their car broke down.

Interestingly, gun rights proponents also claim a right to kill in defense of property, often of small and inconsequential nature.  This proposes an interesting perspective on a serious justice claim conflict: that one can forfeit their “natural” claim to a survival right by committing a property crime, even if the crime in question comes in the interest of protecting the “natural” survival right.  That is, a property owner has a right to kill a trespasser in an apple orchard, for example, even if the trespasser seeks only food for survival, but the starving trespasser has no right to a justice claim on the food as part of his own “natural right” to live.  For many, this is true without regard to whether the option of calling authorities to enforce property crime laws is available.  This suggests that gun rights proponents believe that they need weapons in part to self-enforce their property rights against others’ right to survival.  If so, this puts them in the position of arguing that competing rights claims can be adjudicated only by brute force–whichever party has more power can win the claim–or by development of social understandings which shame one party or another.  The “natural” source of the right makes no difference here–gun rights proponents often win preference for their claim today because human social relations shame the thief more than the property owner who kills to defend ownership of a couple of apples against a starving man.

In the end, I think Mark Tushnet calls it correctly in Out of Range: Why the Constitution Can’t End the Battle Over Guns. He offers a comprehensive analysis of the Constitutional question which associates the Second Amendment more with militia service than an individual right of arms or self defense, but concludes that the debate is a cultural one which depends more on how the different sides in the debate see themselves as Americans, and how they believe society should organize itself to settle competing claims.  This divide probably cannot be bridged by debates over the Founder’s intent, or by tossing around anecdotes, statistics, or theoretical discussions of the sources of rights.  Tushnet’s conclusion instead supports my view that only cultural change will settle this question, as I believe it eventually will move society toward more restrictions on gun use.**

Whether or not I can change the minds of the gun rights folks I have engaged as of late–or even get them to consider an alternate point of view–I plan to continue, since I learn a lot through this process.  Indeed, this discussion has caused me to reevaluate some of my previously held views on the issue.  It has also helped me think through how normative discourse can change social understandings in some issue areas, which helps with other work I do.  Whether or not they wish to engage in reasoned discussion, I invite gun rights supporters to participate.

* At least one will respond, “Well, don’t you want to protect your family?” as if this makes their point about intrinsic  individual rights.

**Gun rights proponents will take this statement as a sign that I prefer this outcome.  In their world, simply stating that I expect a certain outcome means that I prefer it, if it conflicts with their own preference.