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Mar 7, 2017

Second Amendment for Me, Gun Control for Thee

The link between American gun culture and white supremacy undermines conservative arguments for gun rights—but not classical liberal arguments.

Introduction

There are two general arguments one finds among those who defend the Second Amendment or the right to bear arms in the United States. One is that the legal protection of everyone’s right to bear arms is morally required since we all have a human right to self-defence, and that gun control has the effect of disarming only the law-abiding sector of society, thus rending them more vulnerable to violence. I refer to this as the classical liberal argument. The other is that a right to bear arms is an essential part of American identity; it reflects American history, etc. It is often thought that these two arguments go hand in hand and stand to motivate a broad-based coalition in support of the right to bear arms. I think this is mistaken because the historical gun culture that the Second Amendment has functioned to protect in the United States has been highly discriminatory, and has been a device for keeping privileged whites armed, and the black community disarmed, vulnerable, and oppressed. I therefore argue that the case for a real, universal right to bear arms ought to take explicit notice of the harm that gun control has done to the black community, and doing this requires classical liberals to purge their discourse of conservative rhetoric around Second Amendment rights. The right to bear arms cannot be protected by defending or promoting gun culture.

This essay outlines the broad brush strokes of both the liberal and conservative discourses on the right to bear arms with a view to showing that there is an incompatibility between the two approaches, and that conflating the two is potentially corrosive to the liberal case for the universal right to bear arms.

Two Cases for the Right to Bear Arms

Broadly speaking there are two ideological groupings in the United States that support what they respectively refer to as “the right to bear arms.” These are classical liberals (henceforth “liberals”) and conservatives. There is an extent to which they overlap, inasmuch as they both make reference to the Second Amendment. However, the conservative case for the right to bear arms actually undermines the liberal case. Conservatives take the right to bear arms to be a historical, cultural artefact, and refer to the Second Amendment as evidence of its role in the formation of American identity. Whereas liberals take the right to bear arms to both be grounded in and provide support for equality between citizens – it is a matter of moral right, not identity politics. The egregiously inegalitarian nature of the gun culture with which conservatives often identify means that liberals’ reference to the Second Amendment as a guarantor of the right to bear arms carries this historical and cultural baggage with it. To build a more successful, inclusive, and morally honest movement for the right to bear arms, liberals ought to purge their discourse of references to the Second Amendment as a historical right to be protected, and favour the real right of everyone to bear arms, such as has never truly been enjoyed in the United States.

It is important to note that it is not only in the two groups’ reference to the Second Amendment that they overlap. My description of the two ideological approaches to the right to bear arms ought to be taken as ideal types; not necessarily wholly and exclusively instantiated by any individuals, but identifiable strands of consistent argumentation. Given the liberal strand of thought in the ethos of the American Founding Fathers and hence in the US Constitution, particularly the Bill of Rights, many who consider themselves conservative will lean on liberal ideas insofar as those ideas have a history in American public life. Likewise, many liberals will support traditional American political ideas insofar as they are to some extent liberal. The argument to be put forth here – that the conservative and liberal discourses on the right to bear arms need to be disentangled – ought to be viewed as one important aspect of reclaiming liberalism from its entanglement with potentially undermining conservative ideas bound up with American history.

The Liberal Case for the Right to Bear Arms

The liberal justification of the right to bear arms is explicitly moral. This moral argument can take two different forms, one of which is based on our inherent right to life. The right to life is the cornerstone of liberal individual rights: John Locke argued that enshrined in “the law of nature” is the right of self-preservation (Locke 1924, 122). For Locke the right of self-preservation entailed inter alia1 a right of self-defence (Locke 1924, 122; 125-126). The conception of individuals as sovereign and morally separate that is central to liberalism2 implies that a right to life or to self-preservation means that one may act on this right oneself, and not have to depend upon others acting in one’s interests – indeed that is the whole point of individual rights.3 The right to self-defence is not viewed by liberals as a mere convention – something that certain cultures happen to respect or valourise for potentially arbitrary reasons – but rather a natural and deontic right that inheres in us simply in virtue of our being persons worthy of moral consideration, and not our happening to live within this or that set of social conventions. Natural rights provide a basis for evaluating legal systems insofar as they tell us what protections the legal system ought to provide, independently of those protections it might happen to provide. Given that in the contemporary United States, the threats to one’s life that one might face will often require a firearm to extinguish, the legal right to bear arms is the logical implication of the deontic right to self-defence.

The other liberal argument for the right to bear arms is a consequentialist one: when citizens have the right to bear arms, violent crime and property crime are more effectively deterred, and moreover, deterrence works in a far more egalitarian way.

When the right to bear arms is not legally enshrined, those who are already committed to engaging in certain criminal acts such as assaults and thefts, the additional criminal act of unlawfully obtaining and/or using a firearm is only a minor additional risk for them to take, given that they are already taking the risk of engaging in violent crime or property crime in the first place. However, for those who live otherwise law-abiding lifestyles, the marginal risk of obtaining a firearm illegally in order to protect themselves from crime is much larger. Making guns illegal is not a way of disarming a population, but typically a way of disarming the otherwise-law-abiding sub-set of a population.

While existing professional armed law enforcement in the United States no doubt plays some role in deterring crime, a general individual right to bear arms would expand this deterrence in way which not only increases the level of deterrence, but also make it more equally available. Rather than only those who can afford effective private security, happen to live in neighbourhoods the local police care more about, and/or have above average physical strength combined with an inclination to use it for self-defence, where there is a right to bear arms anyone who can point and shoot is immediately able to achieve maximal self-defence. An absence of a legal right to bear arms means that those who are – for any reason – less able to defend themselves, or who are less likely to receive assistance in deterrence or defence. Gun control laws therefore tend to disadvantage women (Long 1997; Pryor 2017), as well as those who live in areas with high crime (which in the United States are typically black neighbourhoods). In the US between 2011 and 2013 black men were killed with a gun at double the rate white men were,4 and in 2015 black people were more than twice as likely to be killed by the police as white people (The Guardian 2015). Where there is inequality between abilities to self-defend without a gun, and between the safety of different communities, recognising a right to bear arms lessens that inequality by equalising the physical power of those who are domestically abused with their abusers in the former case, and by allowing the law-abiding to provide deterrents to crime in crime-ridden communities in the latter case.

Both of these liberal justifications for the right to bear arms are moral in character: the former identifies our moral rights to self-defence as the justification for the legal right to bear arms, and the latter identifies the beneficial consequences of the right to bear arms, namely more and equally distributed public safety. Nonetheless the Second Amendment is often referenced in the liberal discourse, given that there is, in fact, a legal provision for ensuring a right to bear arms in the United States. However, the Second Amendment is not leaned upon as the grounds for any argument for the right to bear arms; it is merely a legal device which can be used as a means to the end of ensuring the legal right to bear arms. The two main strands of liberal argument in favour of the right to bear arms do not make heavy use of the idea that the absence of a right to bear arms would be unconstitutional. This notion of unconstitutionality is rather a strategic aspect of their overall cause, not the main thrust of their argument. There are of course liberal reasons for supporting the US Constitution, and for trying to ensure that it is not violated by the various branches of government. An effectively constitutionally-limited government is bound to be more liberal insofar as those constitutional limitations take the form of protecting citizens from infringements of their liberty.5 But crucially, the argument for the right to bear arms is not given merely because the right is protected by the Constitution. This entanglement of the liberal case for the right to bear arms with the Second Amendment means that there is a danger for liberal discourse to overlap with the conservative one vis-à-vis the Second Amendment, which, as we shall see, undermines the primary liberal argument.

The Conservative Case for the Right to Bear Arms

The Conservative justification for the right to bear arms is not a moral argument in the sense of being deduced from abstract moral ideals, but rather by a traditionalist appeal to cultural, historical, or national identity. The Second Amendment is referred to as evidence that guns are part of American history. Moreover, the Second Amendment has functioned to protect American gun culture: by being legally binding when it suited those in power, and brushed aside when it did not.6

Consider the ongoing debate between Piers Morgan (the British broadcaster who worked in the US for a time) and Second Amendment activists. Morgan advocated the banning of assault rifles on the basis that no American could possibly need one (for game sports, hunting, etc.). However, he and his conservative interlocutors continually talked past one another, since, for them it is not a question of whether they need this or that weapon to protect themselves, or for sport – their very complaint is that they should not have to justify themselves; this is their identity (Stanley, 2013). It is their culture of guns which is claimed and defended, rather than a set of moral ideals which can be rationally debated.

For conservatives, appeal to the Second Amendment is typically not out of a concern for the Constitution as such but a concern for American history and the way things have historically been done. Violations of the Second Amendment are not predominantly worrying to the conservative because some citizens have had their moral rights violated, or because they have become more vulnerable to crime, but because American identity has been tarnished via an assault on American gun culture – and that culture is not one of a universal right to bear arms, but rather one where privileged white men get gun rights, and get to institute gun control that does not threaten their position of power. American gun culture is about privileging some at the expense of others, not universal rights.

Gun Culture Vs. Gun Rights

Gun culture in the US is about gun rights and gun control (Winkler 2013). Typically it is whites that have enjoyed gun rights, and blacks who have borne the brunt of gun control. This is not only a contemporary phenomenon but has been part of American gun culture since its inception. As Thomas Webb recently said, “American gun culture is joined at the hip with attitudes that limit the rights of traditionally disadvantaged groups, attitudes which run counter to [the] philosophy underlying gun rights.” (2016)

The pattern holds from colonial times, when firearms were regulated for purposes of “public safety” (meaning the safety of white settlers from the displaced natives) (Ingersoll 1991, 178-179),7 through to Reconstruction, when the Black Codes kept the freed black population disarmed. The Ku Klux Klan got their start as a disarmament posse in the South, and were crucially not subject to the 1902 ban in South Carolina (Kates 1979, 15). Often, the gun rights of whites were required to secure the gun control imposed on blacks. Congress forced the South the remove racial differentiation in their gun laws in 1866; however, ever since then new ways have been found to control guns in the black community: from the 1870 Tennessee ban on all except the most expensive handguns to the 1968 Gun Control Act that prohibited importation of the handgun models which were most popular among the black community (Funk 1995; Carter 2012, 516-519). Gun control can discriminate against blacks via discrimination against the poorest in American society.

The modern gun control movement started as a response to armed black-rights movements. Ronald Reagan supported the Mulford Act as the Governor of California as a reaction to the Black Panthers’ activities in Californian cities. The Panthers were able to prevent police brutality against blacks by openly arming themselves in public (Bloom & Martin 2014, 46-48),8 as well as to prevent violence at their public demonstrations. When armed Panthers legally entered the State Capitol in 1967 carrying loaded pistols and shotguns, evidently this was the last straw, as this was when Reagan solidified his support of the Mulford Act. Despite the fact that the black community faced systematic threats of violence from the police when lawfully assembling in protest of civil rights violations (to say nothing of the civil rights violations themselves), Reagan assured that public that the Mulford Act “would work no hardship on the honest citizen” (Winkler 2013, 245). Clearly, gun control was acceptable so long as it only affected the black community. Indeed, the National Rifle Association pushed heavily for gun control in urban areas in the face of the riots of the 1960s, believing that the Gun Control Act was “one that the sportsmen of America can live with” (Waldman 2014, 90). They were not interested in the right to bear arms; they were interested in rural whites being able to continue their existing lifestyles. It was not until gun control began to threaten whites’ access to guns (with the 1972 instatement of the Bureau of Alcohol, Tobacco and Firearms) that the NRA became the Second Amendment advocate we know it as today.

In more recent memory, though the gun control movement is not ostensibly racially motivated, it nonetheless functions to disadvantage black communities. Increasing restrictions on and costs of obtaining firearms (where this can be done at all) couples with the increased danger of violence that blacks are exposed to, both from citizens in their locales and from law enforcement agencies. Moreover, in places with partial bans it is the local police department or sheriff that issues licences – so it is the same agencies which disproportionately target black people which regulate that community’s access to the means of self-defence.

The Second Amendment is leaned upon by conservativism when it is their rights to bear arms that are threatened, rather than the universal right to bear arms, and conveniently forgotten when it comes to managing the black community’s access to firearms. The only “right” to bear arms that can be found in American gun culture is the privilege of whites to both access firearms when they want them, and to prohibit firearms when blacks get hold of them. A privilege is not the kind of thing that can, even in theory, be universally shared; it is a right reserved to some and denied to others.9 The Second Amendment has functioned to permit precisely this state of affairs.

It is this inegalitarian political culture which so many conservatives identify with, and feel is threatened when the contemporary gun control movement talks about confiscating assault rifles, etc. The affinity to historical Second Amendment is, for conservatism, an affinity for being able to use the law to privilege themselves at the expense of the black community – not about a universal moral right to self-defence. Reference to the Second Amendment – while it may be strategic as well – is importantly about vindicating the historical veracity of their claim to American history: “this is our culture, and here it is in the Constitution to prove it.” American gun culture does not include a universal right to bear arms, so defending gun culture is not a way of defending the right to bear arms, and therefore, given the Second Amendment’s active and passive role in supporting gun culture, it should not be used in a discourse that seeks to promote and protect a universal right to bear arms.

Changing the Discourse

As was noted above, there is a degree of overlap between liberal and conservative discourse in the US,10 and their respective leaning on the Constitution is a large part of this. However, when liberals refer to protection of the right to bear arms in ways which implicitly argues for gun rights on the basis that they are “our Second Amendment rights,” or “our American freedom,” etc., they do not refer to a universal right to bear arms. They rather refer to a historical set of political relations which involve a large amount of white privilege, and which therefore threatens to alienate those who have been harmed by American gun culture.

The issue is well illustrated by an exchange between the respective leaders of Houston’s New Black Panthers and Open Carry Texas in August 2014. The Panthers were planning an armed march through Houston’s Fifth Ward, and Open Carry wanted to accompany them, believing them to share common cause. Krystal Muhammad of the Panthers told David Amad of Open Carry that their presence would be “an insurgence” in the community. Later, Amad, indignant at the accusation, said to a local TV station that he didn’t “even understand why this was a racial issue.” (Smith 2015.) To Open Carry, both groups believed in and wanted the same thing, at least, as it pertained to this particular rally: a recognition of their right to self-defence. To the New Black Panthers, Open Carry (which has Houston police officers as members) represents a fundamentally different, and opposing, set of ideals – those of the historically privileged and armed white majority.

Denying or ignoring the racial element in a political issue can play into and support the racism that makes it a potent issue in the first place. As Jacob Levy has recently argued, the fight for liberty must take critical notice of the fact that illiberalism has typically been identity-based (2016). Amid the increased rate of unprovoked murders of black people by police officers in the US, there has been an enormous outpouring of sentiment claiming that it is not a racial issue; that it is the disregard for human life that is worrisome. Those taking this view rally under the banner “All Lives Matter” in response to the “Black Lives Matter” campaign, and claim that the latter are looking for a racial issue where there isn’t one. Pretending that there is no particular racial element to the tragedies that occur as a result of unaccountable and increasingly militarised police forces that roam US cities rightly alienates those who make the claim. Claiming that police violence is as much of a threat to the white community as it is to the black community is false, and demonstrates an ignorance of the true importance of the issue. Likewise, claiming that the right to bear arms is not a particularly important right for black people in the US by saying that it is “all of us” that are under threat; that it is “our American rights” that are being compromised, displays ignorance. And as such, anyone seeking the right to bear arms in order to counterbalance the historical privilege that they have been a victim of has good reason to question whether Second Amendment advocates are really to be trusted allies. It is not appropriate for a white law enforcement officer in Texas to walk around a black neighbourhood armed to the teeth affirming his right to bear arms, when historically, the role of white men’s right to bear arms and patrol the streets has been to track down runaway slaves, or to disarm freed blacks, or more recently, to terrorise black neighbourhoods. This is not to say that groups such as Open Carry cannot play a role in the fight for universal gun rights. But it is crucial to remove language tied to “Second Amendment rights” from their rhetoric, and to explicitly recognize that the lack of gun rights in the US imposes a particular hardship upon those who are already systematically disadvantaged by the US government in a number of other ways.

In order to build a successful movement for the right to bear arms, liberals must stick to their moralistic guns, and not fall prey to the rhetoric of conservatives who care more about American gun culture—i.e., White identity politics—than about a real universal right to bear arms. When arguing for the right to bear arms, instead of saying that it is a constitutional right, make the moral case that it is a real moral right we all in fact have, and the government ought to recognise, and that more over it will make us all safer, particularly people in the black community who presently face so much danger both from other citizens and from police officers.

Bibliography

Barnett, Randy E. 2013. Restoring the Lost Constitution: The Presumption of Liberty. Updated ed. Princeton: Princeton University Press.

Bloom, Joshua and Martin, Waldo E. 2014. Black against Empire: The History and Politics of the Black Panther Party. Oakland: University of California Press. (First published 2012)

Carter, Gregg L., ed. 2012. Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law, vol. 1, 2nd ed. Santa Barbara: ABC-CLIO.

Cobb, Charles E. Jr. 2014. This Non-Violent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible. New York: Basic Books.

Cottrol, Robert J. and Diamond, Raymond T. 1991. “The Second Amendment: Toward an Afro Americanist Reconsideration.” Georgetown Law Journal 80: 309-361.

Epstein, Richard A. 2014. The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge: Harvard University Press.

Funk, Markus T. 1995. “Gun Control and Economic Discrimination: The Melting-Point Case in-Point.” Journal of Criminal Law and Criminology 85: 764-806.

The Guardian. 2015. The Counted: People killed by police in the US, recorded by the Guardian – with your help.

Hayek, Friedrich A. 1973. Law, Legislation and Liberty, vol. 1: Rules and Order. Chicago: Chicago University Press.

Ingersoll, Thomas N. 1991. “Free Blacks in a Slave Society: New Orleans, 1718-1812.” William & Mary Quarterly 48: 173-200.

Johnson, Nicholas. 2014. Negroes and the Gun: The Black Tradition of Arms. Amherst:  Prometheus Books.

Kates, Don B., Jr. 1979. Restricting Handguns: The Liberal Skeptics Speak Out. Great Barrington: North River.

Levy, J. T. 2016. “The Defense of Liberty Can’t Do Without Identity Politics,” Niskanen Center, December 13.

Locke, John. 1924. Two Treatises of Government. With an introduction by W. S. Carpenter. London: Dent. (First published 1690)

Long, Roderick T. 1997. “Beyond Patriarchy: A Libertarian Model of the Family.” Formulations 4 (3).

Long, Roderick T. 2008. “Market Anarchism as Constitutionalism.” In Anarchism/Minarchism, edited by Roderick T. Long and Tibor R. Machan, 135-154. Aldershot: Ashgate.

Maitland, Frederic W. 1919. The Constitutional History of England. Cambridge: Cambridge University Press.

National Death Reporting System (accessed 18/08/2016).

Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.

Pryor, Daniel. 2017. “How Gun Control Hurts Women,” Washington Examiner, January 8.

Rawls, John. 1999. A Theory of Justice. Rev. ed. Cambridge: Harvard University Press. (First published 1971)

Richman, Sheldon. 2016. America’s Counter-Revolution: The Constitution Revisited. Griffin Lash.

Smith, Aaron L. 2015. “The Revolutionary Gun Clubs Patrolling the Black Neighborhoods of Dallas.” Vice, February 17.

Spooner, Lysander. 1867-70. No Treason. 6 vols. Boston: Self-published.

Stanley, Tim. 2013. “Here’s the Conservative Take On Gun Rights in Three Simple Points.” Business Insider.

Walden, Michael. 2014. The Second Amendment: A Biography. New York: Simon & Schuster.

Webb, Thomas J. 2016. “Our Gun Culture Versus Our Gun Rights.” Center for a Stateless Society.

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  1. He famously and controversially believed it implied a right to private property (Locke, 1924, 129-141)
  2. The two most important liberal political philosophers of the twentieth century – John Rawls and Robert Nozick – both emphasised the importance of the separateness of persons (Rawls 1999, 30; Nozick 1974, 32-33).
  3. According to the so-called “will theory” of rights (Wenar 2005).
  4. In those years, black men were killed by guns at a rate of 34 for every 100,000, whilst white men were killed by guns at a rate of 17 for every 100,000. The rate at which women were killed by guns was significantly lower both black and white, with the rate for black women being marginally higher than that of white women (National Violent Death Reporting System).
  5. In favour of this view see Barnett (2003) and Epstein (2014); however, against this view see Spooner (1867-70), Long (2008) and Richman (2016).
  6. As Lysander Spooner said, “whether the Constittuion really be on thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it.” (1867-70, vol. 6, 6.20.1)
  7. Men were often required to carry guns (Winkler 2013, 115) and to keep them safely locked up in their homes if they had slaves (Cottrol & Diamond 1991).
  8. Also see Johnson (2014) and Cobb (2014) on the importance of armed self-defence in the struggle for civil rights.
  9. Privilege derives from the two latin words privus (private) and lex (law or right). Where lex denotes law or right in a very particular sense of general laws or rights that apply equally to all persons, privilegium comes to denote laws or rights that only prescribe protection for a particular individual or class of individuals. See Maitland (1919, 382) and Hayek (1973).
  10. This was conscientiously pursued by National Review magazine during the 1950s under the name “fusionism.” The editor William F. Buckley was explicitly seeking a coalition between libertarians (classical liberals) and conservatives. Those ideas live on to this day under the name “paleolibertarianism.”

Ed. note: Minor revisions 3/13/2017.