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Jane had jumped through all the hoops, both required and suggested, to obtain her license to carry a concealed handgun. She had joined a club. She had taken courses. She had studied the law. She had become proficient in the use of the gun. She had researched the best gun to carry and the best carry holster. Now she had put it all together and was out for the first time "packing heat."

Her first task of the day was to go to the Post Office. She did not get beyond the Post Office door. "NO FIREARMS ALLOWED." She looked at the sign in frustration. "They can't do that," she muttered to herself, "I have a license."
Just because a city or state issues you a license to carry a gun that does not mean you can carry a gun anywhere you please. Your right to own or carry a gun is part of a tapestry of rights that interact with each other. These rights often must be counter balanced against other rights and public safety. They are subject to certain limitations.

Our Federal Constitution was not intended to be an exhaustive list of rights belonging to the people. Other rights that are not part of the written Bill of Rights, are equally part of the tapestry of rights belonging to all mankind. The authors of the Bill of Rights listed what they considered to be some of the more important rights, but those rights came from natural law; that is, they were rights given to all mankind by God.

The right to "bear arms" is the outgrowth of two more basic rights. The first is the right to life. Without the right to life, no other right has meaning. For the right to life to have substance, a person must have the right to defend his or her life from violence. Basic to the right to life is the right of self-defense. The right to self defense is meaningless unless you are able to defend yourself in an effective manner. Thus, the right to have arms (the term "arms" is not confined to firearms) is an instrumentality of, and an expression of, the right to life.

The second right is the right to own property. A firearm is a piece of personal property. As such, you should have a right to own a gun absent some compelling governmental interest. As the owner of property, you have the right to control that property so long as you are not endangering others.

If you carry a gun there are other rights that must be considered. One of these is the right to travel. The right to travel is an essential part of the right to liberty. Out of the right to travel, the courts carved the concept of the right to have access to public accommodations. It was on this theory that the federal courts struck down laws that discriminated against blacks in terms of access to restaurants, public transportation, hotels and other places that hold themselves open to the public. If the right to travel (part of the right to liberty) did not trump the right to property in certain circumstances, the right to property would allow a restaurant owner to refuse to admit people he did not like based on race, sex, religion and national origin.

Your right to travel does not give you the right to trespass over someone else's property. There is, however, an exception to this rule. In an emergency, if your life is endangered, or in some cases if your property is endangered, you may enter onto another person's property. This is called the defense of "necessity." The law has balanced your rights with the property owner's rights and determined that the higher good is obtained by allowing you to enter the other person's property. Your entry is not as a matter of right, rather, the property owner's ability to defend his property against your entry is limited by law.

Under certain circumstances, your rights can be terminated by the government. If you are guilty of a serious breach of the social order, your liberty or life could be terminated by the government. Each of our rights are limited by the concept of reasonable use. Our right to do something does not extend to the right to injure or endanger others by our actions. Thus, the right to own an automobile does not give us the right drive irresponsibly.

Within the law there is a constant balancing of rights, duties, and defenses. Having a "right" to do something is only one part of the question of whether or not you can or should do something. All rights are subject to the reasonable police powers of government. For example, you have the right to put a political sign up on your house, but the government can tell you, within reason, how big the sign can be and how long it might be displayed.

There are clearly places where gunowners may not take their guns. If you are visiting a friend at Folsom Prison, do not take your gun. Most federal property is posted to prohibit the carrying of firearms. Statutes make it illegal to have guns in certain parts of airports and on all interstate common carriers unless very specific rules are followed. By federal law, guns may not be taken into schools without the permission of the person in charge of the school. Many courts have rules prohibiting guns in the courtroom. Many psychiatric hospitals have rules against guns inside the hospital. In some cases these rules are imposed by law and in others they are imposed by the person controlling the facility. Each of these places have reasonable grounds based on public safety concerns to restrict firearms possession. I might disagree with some of these rules, but I can not say that they are unreasonable in theory.

You have a right to say who may come into your home. If you invite someone into your house, you can restrict them to your living room. You can prohibit them from consuming alcohol or smoking in your home. You can prevent them from bringing their dog or their gun into your home. You can do this because you have the right to exclude them from your home. Because you can exclude them, you can admit them on conditions. This is your inherent right as the person in control of the property. If you own unimproved land, you may post it for "No Trespassing" and "No Hunting." If you rent your property to someone else, however, you surrender much of the control of your property to the tenant and there are cases that say that landlords can not prevent tenants from owning guns. If someone comes onto your property against your wishes, you can have them arrested for trespassing. Likewise if your employer says, "No gun on the job," and you violate his rule, you will be fired. The employer, as the person in control of the property, has the right to set this rule.

Some states that passed "concealed carry" handgun laws also enacted laws that allow businesses to exclude people who carry guns from coming onto their property. To the extent such laws are lawful, they are an extension of the common law of trespass which exists even if the special laws had not been enacted.

As a gunowner I am annoyed when I am barred from bringing a concealed handgun into a public building or business. If I were carrying openly, I can understand how my having a gun might upset other people. If no one knows I have a gun and the police have licensed me as being a suitable person to have a gun, I am unable to see the harm. If I were a bad person and were not licensed, I would not worry about signs that said, "No guns."

Some public buildings have what I consider a reasonable compromise. They provide a place for the gun to be checked. It is, after all, their property and they have met my needs by providing a place for storage. Many stores require you to check bags when you enter. Requiring you to check your gun would not seem to be much different.

There are a number of policy questions businesses should consider before implementing a "no gun" policy. By announcing that the store is "gun free," they are announcing that no one inside the store is armed. The bad person sees this as an invitation. In a world where no one else is armed, the person with a gun is king and unstoppable. It is no coincidence that most of the places where there have been multiple killings are places that are "gun free." I have never heard of anyone trying to rob a gun show.

Merchants have no general duty to safeguard their customers other than to maintain their premises in a reasonably safe condition and to warn customers of dangers that might not be apparent. They are not insurers of their customers' safety. They are not generally responsible for the illegal acts of third parties. That is, there is no liability against the merchant if some third party intentionally hurts one of the merchant's customers. On the other hand, if a merchant forbids people who are licensed to carry guns from bringing their legal guns onto his premises under the guise that he is protecting their safety, he has then assumed an obligation that he did not previously have. He has undertaken the specific task of protecting his customers. That undertaking creates a special relationship between the customer and merchant which did not previously exist. If the merchant, having created the special relationship, then fails to take other steps necessary to protect his customers from the criminal acts of others, he can be held liable for injury to his customers by the illegal acts of third parties.

Another problem arises if such businesses attempt to search their customers in an effort to enforce their regulations. The ability of a private person to detain you or involuntarily search you, is very limited. It would not cover a general search for weapons. A non-consentual touching in such cases would be a criminal battery. On the other hand, they can bar you from entering their premises if you do not consent to the search. Although passing through a metal detector might be acceptable to some customers, passing all customers through an airport type search would not be acceptable to most customers.
If the store does not provide the licensed gunowner with a place to check his or her gun but forbids entry, then the store is not only creating a special relationship, but it is making a political statement that translates to, "I don't want to do business with people who have guns."

Gunowners should not support businesses who allow their anti-gun bias to move from philosophy to open discrimination. Not only should you not do business with such companies, but you should write them a very polite letter explaining how hurt you feel at their discriminating against you. An angry letter will simply be ignored as the ranting of a crackpot.

State laws that specifically encourage businesses to exclude guns owners are troublesome. For many people the ownership and carrying of a firearm is an expression of philosophy. It is a belief in the integrity and worth of the individual, common citizen. It is a statement that the one who carries a gun is not willing to be a victim and will not give up his or her life or property without extreme objection. In a large number of assaults, the mere display of a firearm expresses the intent and feelings of the licensed holder in such unambiguous terms that the assailant abandons his attack.

It is highly unlikely that a court would accept the concept that carrying a licensed gun for protection is an expression of speech entitled to First Amendment protection. However, laws imposed by some states are thinly veiled attempts by government officials to force individuals to embrace their anti-gun, anti-self defense ideology through compelled statements, or actions equaling statements. Such compulsion is a violation of the First Amendment. Although all citizens have the right to express and, within limits of public safety, act on their private beliefs, it is inappropriate for government to attempt to join the ideological battle.

Legal Theory of the Right to Keep and Bear Arms

There is considerable confusion about the legal theory underlying the "right to keep and bear arms". This is a brief outline for a clarification of the discussion of this issue.

(1) The Second Amendment to the U.S. Constitution does not establish the right to keep and bear arms. None of the provisions of the Constitution establish any "natural" rights. They recognize such rights, but the repeal of such provisions would not end such rights. Such rights were considered by many of the Framers as obvious or "self-evident", but they were immersed in the prevailing republican thought of the day, as expressed in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which discussed "natural rights" in some detail. Others argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. That has turned out to have been a good idea.

(2) The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution.

(3) What the Second Amendment also does is recognize the right, power, and duty of able-bodied persons (originally males, but now females also) to organize into militias and defend the state. It effectively recognizes that all citizens have military and police powers, and the "able-bodied" ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis. "Able-bodied" is a term of art established by English common law at the time the Constitution was adopted, and is the only qualification besides citizenship on what constitutes the "militia". While not well defined in modern terms, it is somewhat broader than just able-"bodied": implicit is also "able-minded" and "virtuous". In other words, persons might be excluded who were physically able to bear arms but who were mentally or morally defective. Defense of the "state" includes self-defense and defense of one's family and friends who are, after all, part of the state, but by establishing the defense of the state as primary a basis is laid for requiring a citizen to risk or sacrifice his life in defense of the state and is thus a qualification on the implicit right of self-defense, which is considered to prevail in situations in which self-sacrifice is not called for.

(4) The U.S. Constitution does not adequately define "arms". When it was adopted, "arms" included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly.

(5) The right to keep and bear arms does indeed extend to the states. As do the other rights recognized by other Amendments, and as reinforced by the Fourteenth Amendment. It is not just a restriction on the powers of the central government. On the other hand, the citizens of a state can adopt a constitution that might restrict the exercise of such rights by delegating the power to do so to the state government. However, if the restriction of natural rights is unduly burdensome on those rights, then such a provision would be incompatible with the U.S. Constitution, its guarantee of the rights, and its guarantee that all states have a "republican" form of government - which such restrictions would compromise.

(6) The legal basis for a government not infringing on the right to keep and bear arms is not constitutional provisions like the Second Amendment, but that the power to do so is not one of the enumerated powers delegated to the government, whether Union or State. That delegation must be explicit as pertains to arms. They can't be regulated on the basis of general powers to tax or to regulate commerce. Arms have a special status under constitutional law. Some State constitutions may delegate such powers to the State government. The U.S. Constitution does not delegate such powers to the Union government. No powers are delegated to government by the preamble to a constitution, which is only a statement of purpose, only by provisions in the body of the document and its amendments.

(7) The legal basis on which the states can regulate arms is in those situations in which they conflict with property rights. It is a fundamental principal in law that the owners or managers of real property have the power to regulate who may enter their premises, and to set conditions upon their entry. That includes public property. Citizens have a right to keep and bear arms -- on their own property or property they control -- but not on someone else's property without his permission.

(8) In other words, citizens have a right to keep and bear arms in those places and situations where they have a right to be, unless such rights are disabled by due process of law. Fundamental natural rights can never be lost, as contractual rights can be, only the exercise of those rights restricted or "disabled", to use the legal term. The distinction is very important. Natural rights are those which the individual brings with him when he enters into the social contract, and reclaims if the social contract is broken. The right to keep and bear arms is such a natural right, as is the right of free speech, religious belief, and privacy. The alternative is a contractual right created by a contract, such as the social contract. The right to vote or to be judged by a jury of one's peers are examples of rights created by the social contract, albeit important ones that are also constitutionally protected. Because they are constitutionally protected, it is only proper to speak of them as disabled, rather than lost, so long as the subject remains a citizen or natural person, depending on whether it is a right of citizenship or personhood.

(9) It is unconstitutional to "disable" any rights by statute except one set: the rights of majority. The disabilities of minority do not need to be established by a court trial or hearing. However, they can be removed sooner than they would be removed by constitution or statute, by reaching a certain age. This means it is unconstitutional to disable the right to keep and bear arms to a class of persons by statute, including those, such as felons, who have been the subject of due process on another issue, except through a proceeding in which the court is explicitly petitioned to disable them, the subject has an opportunity to argue to the contrary, the petitioner has the burden of proof that the subject if armed would be a threat to himself or others, and the court grants that petition. Merely being convicted of a crime, or declared mentally incompetent, is not sufficient if the language of the judgement does not also explicitly disable the right to keep and bear arms, or set restrictions on such right.

(10) "General police powers" is not a constitutional basis for states or localities to regulate arms. "General police powers" are the powers to use the means necessary and sufficient to stop someone who threatens to commit a major crime, or to arrest someone who has done so. All citizens have such power. They differ from regular, professional police only in that the regular police also have "special police powers" in matters such as minor offenses, and in that they outrank civilians. Since citizens have general police powers, they also have the right to such means as they require to exercise such powers in situations in which they may be called upon to do so. That includes arms.

(11) To be constitutional, state laws restricting the bearing of arms must distinguish between public property, private commercial property which serves the public and which therefore confers certain rights to the public, and other private property with no public access rights. It is reasonable and constitutional to prohibit persons from bearing arms onto purely private property without notifying the owner or manager and obtaining his or her permission, except over public easements, such as sidewalks or the walkway from the street to the front door. On the other hand, it would be an undue burden on the right to bear arms to forbid persons from traveling between places where they have a right to be, and to bear arms while they do so, along public pathways or private easements, and using their own or a public means of transportation. It may not, however, be an undue burden to prohibit the bearing of arms onto certain public property where persons do not have unrestricted access, such as office buildings and auditoriums, provided that authorities guarantee the safety of persons who enter unarmed. Owners of commercial property serving the public which confers some rights of access to the public may prohibit the bearing of arms by posting or giving a notice to that effect, but lacking such notice, bearing arms onto the premises would be permitted. The rule must be that laws must not burden the right to bear arms except to the extent that they would impose a greater burden on the right of property owners to exclude persons bearing arms.

(12) The law must presume that places of business that cater to arms, such as gun shops and shooting ranges, and events such as gun shows, offer presumptive permission to bear arms and that therefore it is not illegal to bear them there or to travel to and from them.

(13) A carry permit system essentially is a removal of restrictions against bearing arms on public and private property unless there is an express prohibition against doing so, either in the form of a posted sign or a directive from the owner or his agent. The rationale for issuing such permits is to equip persons of good character to more effectively function as militiamen or police in situations in which regular police are not available or insufficient. That also includes self-protection, but the key factor is the duty to perform police duties as necessary. There also needs to be explicit statutory protection of the state or other permit issuing authority against criminal or civil liability for any acts done by the permit holder. One kind of carry permit is that which is one of the "special police powers" of regular law-enforcement officers, which allows them to carry anywhere, even against the express wishes of a property owner.

(14) With the high levels of crime we now endure, the only effective way to extend police protection to a level that might deter crime is to recruit a substantial proportion of the public to go armed, by issuing them carry permits, offering them police training, and organizing them into a network of militia units closely coordinated with regular law enforcement agencies. It is likely that as many as 25% of the adult public could serve in this way on a regular basis, and another 25% on an occasional basis, and that if they did, we might expect it to have a significant positive impact on crime. Some such citizens might even be granted higher police rank, and perform regular police duties on a part-time basis. Such involvement of the public in law enforcement would also have other benefits: breaking down the social and psychological barriers that now separate the regular police from civilians, and deterring some of the abuses of authority that police have sometimes fallen into.

(15) That the militia should be "well-regulated" is not a basis for restricting the keeping or bearing of arms. The term originally meant "self-regulated" and militias could be independent of state or national authority if not called up by such authority. Militia members may be required to carry certain standard arms during formations, but they cannot be forbidden from carrying additional arms of their own unless doing so would impair normal militia operations. State-appointed officers may direct when, where and in what manner members of the militia are to train and perform their duties, but may not forbid them to meet on their own.

(16) The Union government has the power, under the U.S. Constitution, to regulate imports and interstate commerce in arms, but the Framers would not agree with how the "interstate commerce" clause (Art. 1, Sec. 8) of the Constitution has been broadly interpreted to include regulation of manufacture, possession, and local sales and use of items. A strict constitutional interpretation requires that the Union government has authority only over transactions that cross state lines, and not over actions or transactions that occur within state borders, even if they involve items that may someday cross state borders or may have once done so. If we want the Union government to have such authority, and a good case can be made for that, then the U.S. Constitution needs to be amended to delegate that authority to it.

(17) The Union government also has excise taxing power, but since arms have special status under the Constitution, no tax may be levied that imposes an undue burden on the right to keep and bear arms. Rights are more fundamental than taxing powers, particularly since the right to keep and bear arms is recognized in an amendment which supersedes any prior provisions that conflict with it, which includes all taxing powers except the income tax (which does not provide a basis for taxing arms). Arms may be taxed as general merchandise is, such as with a sales tax, but any tax law which specifies arms for special taxes, other than reasonable use fees for public services related to them, must be considered unconstitutional. That would include taxes on ammunition and the ingredients to make it. The analogy is to taxes on newsprint, which may be taxed like other merchandise, but not in a way that would impose an undue burden on the right of a free press.

(18) This means that no government has the power, unless that power is specifically granted to it under its constitution, to prohibit any person from manufacturing or possessing any gun or ammunition for it on his own premises or where he has a right to be, or against using it in a safe and responsible manner, or against selling or giving it to another person within the borders of a state.

(19) Since the common law prevailing at the time the Constitution was adopted defined "militia" to consist of "able-bodied" citizens, including persons younger than the usual age of majority, any law restricting the possession, sale or gift of guns or ammunition to persons under the age of majority or any other particular age, or to minors (since persons under the age of majority may have their disabilities of minority removed by a court), is also unconstitutional, unless the constitution explicitly includes a disability of the right to keep and bear arms among the disabilities of minority. The proper test for being "able-bodied" must involve meeting certain standards that are independent of age, such as skill, judgement, and level of maturity. It is possible for persons to be "able-bodied" at quite a young age, and the law must recognize that competence where it exists. All citizens above the age of majority would have to be presumed able- bodied unless they or the state petitioned a court to rule otherwise and it granted the petition. However, it would be constitutional to require a reasonable test of competence to citizens below the age of majority, and to issue credentials to those qualifying which they would be required to show when answering calls of the militia or, if the right to keep and bear arms were included among the rights disabled by minority, when bearing arms. Early removal of the disabilities of minority would then also remove the disabilities of the right to keep and bear arms.

(20) The "full faith and credit" clause of the U.S. Constitution requires that persons issued a carry permit by one state must have that permit recognized in other states. This suggests a uniform standard for qualifying persons for issuance.

REFERENCE: Stephen P. Halbrook, That Every Man be Armed, available from The Independent Institute, 134 98th Av, Oakland, CA 94603, 510/568-6047.

Constitution Society, 6900 San Pedro #147-230, San Antonio, TX 78216, 210/224-2868

Source

Reply to Gordon: The Right of Self-Defense is Inalienable

by Ari Armstrong, February 20, 2003

Sen. Ken Gordon wrote a rather pleasant article about guns for the February 16 Denver Post. Pleasant, but misguided.

No right is absolute, Gordon claims. After all, he reminds us, "The right to free speech does not allow one to yell 'fire' in a crowded theater," as Holmes put it. Gordon adds, "[A]n absolute right for one is the end of rights for others." Just as laws limit "libel and slander, fighting words, and pornography," Gordon argues, so may laws restrict gun ownership.

But Gordon's formulation is not quite the same as Holmes'. Perhaps Holmes is not saying rights should be limited; perhaps he is saying some things aren't rights at all. The restriction on yelling "fire" does not restrict a right; it delineates an act that is not a right. Nobody has a right to yell "fire" in a way that disrupts another's property; that act is not a part of the right of free speech. Gordon puts the matter agreeably when he writes, "[E]ven speech is not absolutely protected."

I propose that rights are inalienable -- absolute if you will -- but rights do not cover absolutely all forms of any given activity. Yelling "fire" in somebody's theater is an inherently illegal act. Similarly, shooting an innocent person with a gun is not included in the "right to keep and bear arms."

On a superficial level it might seem I'm picking nits, but the distinction I'm describing is profound. If we follow Gordon's line and describe rights as non-absolute, we assume there is some arbitrary line we must draw, allowing some rights but disallowing others. Gordon's formulation precludes moral principles and commits us to pragmatism. On the other hand, when we think of rights as inalienable or absolute, but not covering absolutely all forms of a given behavior, we are compelled to dig for principles that distinguish different types of acts.

According to Gordon's formulation, giving a speech on one's own property is the same type of action as yelling "fire" in a crowded theater. Both are speech. We have a "right" to both acts, but, because rights are not absolute, we choose to restrict one act but not the other.

Of course there's nothing wrong with calling both acts "speech." The problem lies in suggesting we have a right to commit both acts. The view I'm promoting requires us to categorize acts along a different plane: into those acts which are protected as rights and those which aren't.

Perhaps the "absolutist" view will be more clear in light of a discussion of goodness and justice. Is good an "absolute" value? Or do we want to limit the amount of goodness? Similarly, should we limit justice, or should we advocate the absolute maximum amount of justice? The same pragmatist mindset that counsels, "We should usually strive to be good, but we can't always be good," also suggests, "We can't always protect people's rights."

The pragmatist might argue the principled view commits us to imprudent action, but that would be a circular critique. A proper set of principles is not blind to practicality; it is built from the ground up to ensure it. The pragmatist, on the other hand, fails to develop a fundamental understanding of concepts like good, justice, and rights, and so ends up counseling imprudent behavior. In short, principles are practical, and pragmatism isn't.

Yelling "fire" in a crowded theater is not a right; it is an act that violates the rights of others. Specifically, whoever owns the theater has a property right in that theater. People who pay to see the show are entering into a contract with the theater owner. Certain behaviors are compatible with that agreement, and certain behaviors aren't.

Similarly, we have no right to carry a gun onto a the property of a person who forbids the act. We have no right to use a gun in a way that hurts or directly endangers the person or property of anybody else. According to the principled view, it would be improper to say our rights are being restricted by such limitations. Instead, we should say our (inalienable) rights do not entail hurting others or violating their property.

Obviously, we don't want to get stuck in debates over semantics. It's possible to use the phrase, "rights aren't absolute," in a way compatible with the principled view. But we also need to be careful not to muddle the distinction between principles and pragmatism.

When Gordon writes, "[A]n absolute right for one is the end of rights for others," he seems to be endorsing the notion that rights compete. Because the rights of different people are incompatible, the rights of all people must be restricted to achieve social harmony. The principled view, on the other hand, sees inalienable rights as the means to achieve social harmony. The more consistently rights are protected, the more harmoniously people will live. If rights are curtailed or violated, social conflict will necessarily result.

Gordon's pragmatism allows him to place the acts of yelling "fire" and producing pornography in the same category. However, for the libertarian, yelling "fire" in a theater is an inherently improper act, whereas pornography is legally acceptable if its production does not violate the property rights of others. (E.g., forcing people to pose for pornographic photos is obviously not a right.)

The principled view immediately rejects proposals to censor the press or limit any right of speech. Such restrictions are fundamentally different from restrictions against yelling "fire." For the pragmatist, however, such proposals differ only in degree, not in kind.

Gordon writes, "Certainly, Americans have a right to bear arms. But what does that mean? Did it mean one thing in 1791 when a frontier nation won a revolution using muskets and another in 2003 when drug gangs use handguns? When the U.S. Constitution protects a specific right, it's clear that this is important and that the individual has some protection against the majority. It does not mean that the right is absolute."

We won't dwell on Gordon's admittance that drug prohibition is a major driver of the U.S. homicide rate. As Mises warned, socialist programs create unintended harmful consequences that tend to encourage more socialist programs. In this case, drug prohibition dramatically increased the homicide rate, so now politicians are trying to address the symptom of the disease by restricting gun ownership. Nevermind the obvious point that "drug gangs" are already experts at smuggling prohibited items.

But let me place Gordon's argument in another context: "Certainly, Americans have a right to speak and write. But what does that mean? Did it mean one thing in 1791 when a frontier nation galvanized a revolution using primitive printing presses and another in 2003 when terrorists communicate via the internet and cellular phones?"

It is only an historical accident that Gordon values the First Amendment more than he values the Second. Mostly it has to do with demographics: leftists tend to be more urban, where gun ownership rates are lower, while rightists tend to be more rural. Thus, on this one issue, the Republican Party tends to supports civil liberties, while the Democratic Party tends to oppose them. What unites most Republicans and Democrats, though, is a belief that (the other person's) rights must be curtailed.

Those who adhere to a principled view, on the other hand, value both the right of speech and the right of self-defense and wish to restrict neither.

Specifically, Gordon wishes to retain local restrictions on concealed carry, arbitrarily selected semiautomatic rifles, and the transportation of guns. Two competing concealed carry bills would require local sheriffs to issue permits to all qualifying residents, and another so-called "preemption" bill would remove several local ordinances that restrict the right to keep and bear arms.

Gordon states "there is no 'right' to carry a hidden gun in Colorado" based on the wording of the state constitution. Clearly, Gordon believes rights are granted to citizens by the state. This is compatible with the pragmatist view and at odds with the principled view (which holds rights as inalienable). I have argued that Colorado citizens indeed have a right to carry concealed handguns, despite the wording of the state constitution. The question is, will the state violate our rights or not?

Gordon skewers two straw men in his article. Concerning concealed carry, he alleges "[p]roponents feel that the world is a dangerous place and... an individual can only depend on himself. Opponents feel that people carrying concealed weapons help to make the world more dangerous and that our best hope for safety is in the hands of a sane and just community." Besides the faulty exercise in psychoanalysis, Gordon presents a false alternative. Our choice is not between individual action and cooperative action; life requires both. The "sane and just community" is irrelevant at the point when somebody tries to kill you on a dark street. Also, concealed carriers can directly protect others in the community as well as help deter crime generally. Our choice is not between Robinson Crusoe and singing Kumbaya around the campfire.

Against the bill that would prevent localities from limiting the right of self-defense, Gordon writes, "[Bill sponsor] Jim Dyer... argues that we need statewide uniformity. I don't see why... [I]f we go to one-size-fits-all, [some] places will be over-regulated or, more likely -- and this is what the gun lobby would prefer -- Denver will be under-regulated." Of course, the argument about uniformity is the most trivial argument in the bill's defense. And Gordon's language is curious. He speaks of regulating cities, but of course it is not cities that are regulated, it is individual citizens. The phrase, "Denver will be under-regulated," is a euphemism for, "Citizens living in Denver will no longer see their rights violated by local politicians."

Gordon writes, "My view is that the statistical argument is a wash. I don't believe that people who get permits commit very many crimes, and I don't believe that they stop very many." Well, we know for certain that people with permits commit almost no crimes. And Gary Kleck (Armed, p. 313-316) notes a significant number of defensive gun uses involve carried guns.

However, regression analysis offers less clear conclusions. In a new, extensive study, John Donohue grants the validity of much of John Lott's early work. But he finds that updating the data provides mixed and confusing results. He writes:

The overall evidence suggests to me that broad (and conflicting) crime swings that occurred in the late 1980s and 1990s happened to correlate with the passage of shall-issue laws, and the panel data model seems unable to separate out the contribution of the relatively minor influence of the shall-issue law from the major impacts of these broad swings. With data problems making it unclear whether the county or state data are more reliable, with the lack of good instruments available to directly address the problems of endogeneity and the lack of good controls available to capture the criminogenic influence of crack, it is hard to make strong claims about the likely impact of passing a shall-issue law.

In other words, while we can be sure (based on Kleck's data) that people in fact use concealed guns defensively, it's less clear what the overall impact of the laws is on crime rates.

There are competing causal theories concerning the impacts of concealed carry. The "more guns, less crime hypothesis," as Donohue calls it, argues carriers can successfully stop some violent attacks, and also criminals are less likely to attack people who may be armed. (Survey work indicates criminals indeed fear confronting an armed person.) The contrary view argues criminals may be quicker to use lethal force (to prevent armed defense). (Claims about possible violent behavior by permit holders are disproved by the raw data from the states with permit laws.)

However, it could be the case that concealed carry laws change the behavior of the carriers as well as the criminals. Lott writes:

It is possible that concealed-firearm laws both make individuals safer and increase crime rates at the same time... For example, allowing citizens to carry concealed firearms may encourage them to risk entering more dangerous neighborhoods or to begin traveling during times they previously avoided... (More Guns, 2nd Ed., p. 33-34)

Lott goes on to relate the story of a woman who was fearful to travel alone until she purchased a firearm. Thus, if the ability to carry concealed mitigates a person's risks and thus expands the range of relatively safe activity, "society as a whole might be better off even if crime rates were to rise as a result of concealed-handgun laws."

We know three things, then, with a high degree of confidence. 1. Permit holders do not commit crimes. 2. Some people use concealed guns to defend against violent crime. 3. Criminals say they're less likely to attack those who may be armed. The regression models seem to provide mixed results.

[2/25/03 Update: John Lott, Florenz Plassman, and John Whitley wrote a convincing refutation of Donohue's claims in a January paper. They claim Donohue misreads his own data, and the updated information continues to show liberalized carry laws reduce rates of violent crime.]

At deeper level, though, the statistics are not the only issue or even the most important issue. For instance, no doubt people who regularly read the Quran are more likely to commit acts of terrorism in the U.S. Do we or don't we believe individual rights may be violated based on statistics? Should the government exercise prior restraint based merely on statistical averages?

Rights, and moral principles generally, may not properly be cut off from prudential concerns. Indeed, moral principles are defined as such largely because they tend to promote good consequences for human beings.

The right to bear arms derives from the right of self-defense, which in turn derives from the right to life. Thus, bearing arms must be shown to have actual defensive value to be considered a right. The emperics amply support that view. Rights are also sensitive to the concern that governments tend to abuse power.

Even if (hypothetically) guns had no defensive value (which they obviously do), they would still be property, and thus would fall under the right to property. I am not prepared to argue, on the other hand, that a nuclear bomb falls under the right to property, because such an item poses an imminent threat to the property and safety of others. Similarly, there is no right to walk down a residential street firing one's gun at random.

I am happy that Gordon at least recognizes some right to bear arms, just as he recognizes some right to free speech. But ultimately the pragmatist perspective cannot ably defend rights. It's appropriate to talk about which sorts of acts are rights and which aren't. It's not appropriate, according to the principled perspective, to talk about which rights should be restricted or by how much.

The Colorado Freedom Report--www.FreeColorado.com

Colorado Freedom Report