Treating on Equal Terms: Gun Rights Beyond the Second Amendment
Gun rights are fundamentally about the balance of power between rulers and ruled, not questions of constitutional interpretation.
For the purposes of this essay, I propose to set aside the constitutional questions surrounding gun ownership, questions, that is, about the meaning of the Second Amendment. Among contemporary gun rights activists and gun enthusiasts, there is a pronounced overemphasis and overreliance on these words: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For my part, I find this sentence to be of indeterminate meaning, nonspecific and even vague. More importantly, though, I don’t believe that these words, whatever they mean, are binding on me or anyone else, for reasons that I’ve considered in more depth elsewhere and that were perhaps most masterfully set forth in Lysander Spooner’s monumental essay “The Constitution of No Authority.” Readers might consult that essay before continuing with this one. There seems to be a need for the development (or redevelopment) of an explicitly and distinctively non‐conservative, radical pro‐gun position.
The non‐conservative, radical advocate for gun rights contends that the normative questions surrounding gun ownership are far more important than the legal questions, as the latter set of questions should simply be about how to enforce the normatively correct position, whatever it happens to be. Perhaps it is a happy coincidence that, almost without exception, one’s reading of the Second Amendment aligns neatly with his opinions on gun rights and the policies associated therewith, though we might reasonably doubt this. More likely, on this question and others, almost everyone is working backwards from a set of preferred policies to a constitutional theory that would uphold them. Ostensibly serious legal and political thinkers indulge this, the silly game that surrounds the more obviously political issues in constitutional law, and keep up the pretense, sure that, in any case, the authority of the Constitution must be taken for granted. The radical, by definition, does not take such a contentious premise as the authority of the Constitution for granted.
So what of the philosophical question? Having considered the shortcomings of ideal theory, it becomes apparent that many of the arguments against it apply to the current debate about gun ownership. The proponents of gun control, broadly defined, seem to believe that private citizens with firearms are likely to pose a danger to society, while agents of the state (e.g., soldiers and law enforcement officers) will act justly and nonviolently, using their weapons only to protect the innocent. If we take seriously the idea that the incentive structures surrounding individuals bear on their behaviors, then this assumption appears untenable, for agents of the state, when they commit violent attacks and injustices, are rarely held accountable for their actions. This is to say that their incentives to act in accordance with the demands of justice are much weaker than are the incentives for an ordinary member of society. It should therefore worry gun control advocates that their preferred policies would target ordinary members of society while leaving government agents untouched. But it doesn’t seem to, because they are engaged in an ideal theoretic exercise, one in which the government is a benign, trustworthy instrument of justice.
The radical gun rights position suggests that this asymmetry is both foolish and dangerous, that we shouldn’t equivocate in applying our assumptions about how human actors behave within certain incentive frameworks.
To begin with, we know that the police are far deadlier than mass shooters—that, in point of fact, one would have to combine years’ worth of mass shooting deaths to total the number of Americans killed by police in 2017 alone. While definitions of “mass shooting” differ, under even the most inclusive, police shooting deaths far outnumber mass shooting deaths. Under more appropriate and restrictive definitions, police kill more Americans in just one year than mass shooters have in several decades. Moreover, school shootings present an even smaller risk than mass shooting more generally. As a matter of fact, the American student is today safer in the classroom “than at any time in recent memory.” Choking on your food, for example, is much more likely to end your life than is a mass shooting, to say nothing of the risks associated with activities like driving in cars or swimming. In the wake of a tragedy, no one likes to hear such facts, as they seem to minimize the pain and loss of the survivors and the families of victims. The hypocrisy of gun control advocates is striking, or it should be; obsessed with the extraordinarily small risk presented by mass shootings, they strain at a gnat yet swallow a camel. They plead for gun control—really disarmament—for the dominated as they exempt the dominators. Opponents of systematic violence might be expected to begin with disarming the state. As Jake Allen of the Trigger Warning Queer & Trans Gun Club points out, “If we’re going to call for gun control, we should start with the heavily armed police state. The weapons that ordinary people have access to are small potatoes compared to the firepower that most police departments possess and deploy regularly against society’s most marginalized communities.” Allen’s point is simply too sensible to be taken seriously within respectable political circles, for whom the serious questioning of power structures seems impertinent. They assume the government is good and build a theory of gun ownership from there.
The acceptance of such glaring asymmetry speaks to our subordination and moral degradation. We identify with our captors, slavishly devoted to them, happy to be humiliated and maltreated. We have lost the desire, characteristic of psychologically healthy mature adults, to be free and independent, to deal with other adults confidently as co‐equals, the rights of all parties duly respected. What except Stockholm Syndrome explains this embarrassing willingness to defer and submit? The egoist writer and publisher Dora Marsden deftly captured this point:
What profit can a labouring man feel in voicing any desire to be his own master when he sees himself at the apex of a triangle which broadens out to its base in serried rows of armed men, each with his rifle, bludgeon and lash raised threateningly at him? As the mildest‐mannered policeman would tell him, to do so would be “asking for it.” That an unarmed populace under a government possessing an armed force is in a condition of slavery, is a fact which shouts. To be free is to have the power to treat on equal terms (emphasis added).
It is admitted that the espousers of gun control present their case in complete good faith, believing it to be the path to a safer, less violent society. But this is cold comfort indeed, for we might be much less concerned at the psychological state of the champions of gun control if we could be sure that they push this dangerous policy cynically in order to strengthen the state and the interests it serves. That they do not is evidence of their overcredulous faith in lawmakers, the law, and the state itself, and it is this faith that is the real danger; it testifies to the inadequacy of their ability to reason, to think critically, to see the unjustifiable inequality on which their favored policy is based.
A few have noticed this inequality and have undertaken to expose and undermine it. The Black Panthers are notable among those few radicals who have dared to point out the elephant in the room, to assert their rights and challenge a culture of subordination under which only law enforcement may have weapons. Indeed, as Adam Winkler argued in The Atlantic , “[T]he Black Panthers’ invasion of the California statehouse launched the modern gun‐rights movement.” Winkler recounts an incident from February of 1967, in which Huey Newton, Bobby Seale, and several other Black Panthers were pulled over by police who asked to see the guns the Panthers had in their car:
“What are you going to do with that gun?” asked one of the stunned policemen.
“What are you going to do with your gun?,” Newton replied.
In volleying the officer’s question back at him, Newton demonstrated an understanding, at least implicitly, of a simple idea with revolutionary implications—the idea that there exists a radical equality in authority between all people (see Roderick Long’s Equality: The Unknown Ideal). Aware of a problem with the officer’s imperious behavior, Newton refused to simply take it for granted that the officer should have some special power over him, that he should enjoy the special privilege to carry a gun while Newton shouldn’t. The Panthers were, writes Winkler, “policing the police.” Firepower gave them the courage and the wherewithal to approach a kind of parity with the police, though of course not full parity. Borrowing Marsden’s words, they were attempting “to treat on equal terms.” The Panthers understood that the state and its agents cast suspicious eyes upon the weapons of citizens, even as their own weapons are pointed at those citizens. A confident, self‐esteeming people could not accept such a posture of humiliation and defeat, stripped of its ability to defend itself and negotiate. That these terms are accepted bespeaks the real, concrete, non‐metaphorical fact of military conquest that defines the state.
Huey Newton’s challenge of the authority of the police underscores another related point: The prevailing view of individual rights necessarily contradicts itself. It takes the individual to have no right to make his own decisions or govern himself while simultaneously holding that some individuals have the right to make decisions for others. One can’t govern himself, but he can govern others. How could one have, for example, the right not only to possess guns but to dictate to others the terms under which they may possess them if he doesn’t have any rights in the first place? If at this point it seems to the reader that the powerful are just making it up to preserve the asymmetry we’ve been considering here, then the reader would be onto something.
Gun control advocates who point to Parkland and say “never again” are the humanitarian with the guillotine, their misplaced righteous indignation sweeping away all other concerns. They can’t consider the dangers that inhere in their position because the position is a matter of faith, of religious certitude. Crafting policy as a response to a school shootings is a lot like crafting policy as a response to the September 11th attacks: informed more by fear than fact, scare tactics than good sense. Politicians, overeager to do something to respond to tragedy, are prone to enact “solutions” that are worse than the problems themselves. The desire for “safety” at any cost—for perfect safety of an unattainable kind—leads to policies that make us more unsafe, vulnerable to a more powerful and dangerous enemy: the security state. Because it neither appeals to emotion nor offers an easy fix, this standpoint is unlikely to grab many headlines—unlikely to compete with the righteous indignation of well‐meaning high school students. When tragedy strikes, libertarians are often in the uncomfortable, unenviable position of saying that politicians and government ought to do nothing. Looking at the state without the rose‐colored glasses of ideal theory, government is just an institution of violence, its actions entailing more costs than benefits. During times of tragedy, when emotions run high, it’s worth reminding oneself of this.