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Posted on 01/02/2002 2:23:15 PM PST by 45Auto

Every time I get in a gun debate with anyone, anywhere, they always bring up what I like to call "the mystic nuclear weapons exception" to the principle of armed self-defense. The basic argument seems to be that since people don't have a "right" to keep and bear nuclear weapons, or other weapons of mass destruction, then the absolute right to keep and bear any instrument of self-defense must be void, and hence it's perfectly legitimate to ban handguns, "assault rifles," sporting guns, water pistols, or whatever else. After all, "we have to draw the line somewhere," and because of the "mystic nuclear weapons exception," they tell us that our rights and principles can't be our sole, absolute guide. Or that's what they'd have us think; and a surprisingly large number of people, even many pro-gun activists, fall for this argument and agree with it. The argument is false, and I'm going to prove it so, permanently, right here and now. There is no need to abandon, invalidate, or move beyond our basic principles of the right to armed self-defense.

The place to start, of course, is by examining the right of self-defense fundamentally. In our western tradition, and in the Constitution, we derive most of our notions of "rights" from the philosopher John Locke, upon whose work the Declaration of Independence, the Constitution, and the Bill of Rights were based. Locke bases his theory of rights out of property rights, specifically, out of the idea that adult individuals have the right to own their own bodies -- that is, that individuals have a basic right to self-ownership. That's why his basic triad of rights are the rights to "life, liberty, and the pursuit of property" -- it all boils down to the central idea that individual people have a right to own and control themselves.

It's not a perfect idea -- for example, it runs into problems with children and the mentally unfit -- but as a whole, for adult citizens, it's a darn good rule to work by. More importantly, it's the centerpoint of our system of law, enshrined in the Constitution. So for all practical purposes, this is the system we have to work with.

From that basic idea, it's extremely easy to deduce a right to self-defense. "Ownership" of something may be defined, roughly, as "just control" over that something; and if someone owns themselves, then what that means in practical terms is that they have the sole right to determine what they do, where, and how, as long as they don't interfere with the ownership rights of anyone else (which, of course, includes other people's bodies, because the other people own those.) This is often referred to as the "non-aggression principle," and is the core of modern-day libertarianism. People have the right to do whatever they want with themselves, as long as they don't interfere with the just rights of others.

This principle has a corollary, though; if you don't have the right to interfere with others unless they interfere with you, then if they do interfere with you, you do have the corresponding right to interfere with them. If you didn't, you wouldn't have control over your body; the guy who's interfering would. Another way of phrasing this is that, because you have a right to own yourself, you have a right to assert that ownership: you can legitimately stop people who try to do things to your body that you don't want done to your body, presuming only that they were the ones who initiated the conflict, not you. This is generally summed up in "the right to self defense," and it's something most human beings, if not most governments, can recognize intuitively. People have a right to defend themselves when attacked. Most everyone can agree on that

The disagreement starts to come along with the jump from there to the next logical step, which is that if people have a right to self-defense, that they must also logically have a right to effective means and instruments with which to accomplish that self-defense. Thomas Jefferson stated this as the principle that "the right to a thing gives a right to the means without which it could not be used, that is to say, that the means follow their end," and he stated it alternatively that "The right to use a thing comprehends a right to the means necessary to its use, and without which it would be useless." In other words, you can't say that someone has a right to dig holes on their land, but then say that they don't have a right to post-hole diggers, and you can't say people have a right to self-defense, but not to own weapons.

If people have a right to self-defense -- and they do -- then they must have a right to own whatever the most effective, efficient instruments are with which to execute that right. That's why the wording of the Second Amendment specifies "arms," not flintlocks or swords or armored breastplates; the word "arms" at the time meant, roughly speaking, "personal instruments of offense or defense," that is, anything that an individual soldier might wear into battle -- armor, saber, gun, whatever worked. The idea was that the individual militiaman would obtain the most efficient and effective means for his personal defense that he could, all those individuals would gather together, and you'd have an efficiently, effectively armed army.

The Constitution even goes so far as to authorize Congress to grant "letters of marque" -- that is, licenses to owners of private ships to operate as warships; something that obviously presumes private ownership of vessels capable of acting as warships, so presumably private ownership of cannon and the like. (Something that is, interestingly enough, still perfectly legal; you can buy and own, and even fire, all the black powder cannon you want. Many Civil War re-enactors do precisely that.)

How this worked in practice is debatable; but that's the basic idea. Under the Constitution, people should have the right to own the best means of self-defense that they can afford.

All that makes sense as a general rule; but it doesn't satisfy the "mystic nuclear weapons exception," it doesn't give us a general principle to determine which weapons and instruments people can have and which they can't -- it doesn't really define what a "means of self defense" is. But it does give us a starting point. Since the right to own weapons stems out of the right to self-defense, then people must only have the "right" to own weapons that are an efficient means of self-defense. Ideally, we'd be looking for something that could only work against "bad guys," but that will probably be always beyond our science; for now, we have to leave that job up to the human brain. This means a few things: most importantly, it means that the weapon in question must be capable of use with discretion, that is, it must be possible to use the weapon only against aggressors.

If the weapon has any nasty side effects -- like inevitably killing innocent bystanders, killing the user, killing at random, killing people who happen to be in the same general area fifty years later (and are hence inevitably also innocent bystanders,) or some such similar flaw, then it can't be considered a "just" weapon, because its use would inevitably violate the non-aggression principle outlined above. For an individual armament to be an "efficient" means of self-defense, then, it has to be controllable by an individual; the individual user must have the capability to specify targets. Therefore we have our rule: people have the right to own whatever weapons they can obtain and use, provided that those weapons are of the sort which can be used without aggressing against innocents.

So that tells us what people don't have a right to; and deals with the "mystic nuclear weapons exception" along the way. There still remains one important question, though: we've settled what people shouldn't have, but we haven't settled the question of what they should. The other key thing to determine in choosing a weapon, besides efficiency, is "effectiveness" -- a sword is an efficient means of self-defense, in that it can be used with a great deal of discretion, but it is relatively ineffective in our world of full-auto rifles and advanced body armors.

The problem is that there are a multitude of self-defense situations, and a multitude of different individuals who are going to have different needs and requirements for their personal self-defense. A little old lady who walks her dog in a "rough" park might simply find a canister of pepper spray to be the best choice for her situation; a victim of an oppressive third-world regime might have need of a rocket launcher, to fend off the helicopters of the oppressive government under which he labors. Now, clearly, only a given individual is going to be capable of making this kind of decision -- no outside group, government, or organization is going to be capable of telling an independent individual what is and isn't an efficient, effective choice of instrument with which to defend themselves.

Furthermore, though, even if they could, there would be an obvious conflict of interest -- all those outside of the individual are, after all, potential aggressors against that individual. This is why the second amendment exists, and it's also why the fourth does, for that matter; the government is not only prohibited from infringing on the individual's right to keep and bear the generalized "arms," they are also specifically prohibited from searching your possessions, home, or person without just cause.

The founders weren't stupid; they knew that the first thing an oppressive regime tends to confiscate is the means with which to resist that regime, so they made it danged hard for that regime to regulate those means.

This results in a somewhat odd situation: under current American law and the Constitution, every American citizen does, to that extent, have at least a de facto right to own any weapon they can get their hands on -- because under the fourth amendment, the U.S. Government doesn't have the power to check and see what you have. This is good, because they shouldn't. As long as no one knows you've got the whatever-it-is, and you aren't hurting anybody with it, you should be able to have it and keep it. The problem comes when individuals start getting their hands on weapons that have no legitimate purpose as instruments of self defense -- the above-mentioned "terror weapons" that kill indiscriminately and which are not capable of use for the purposes of self-defense.

We have to leave the choice of individual armaments within the hands of the individual; yet there are some armaments which no individual, and at least ideally no government and no anyone, should be allowed to have (such as, for example, all of the "weapons of mass destruction," the nuclear and biological weapons, etc.) We've established that there are some things people shouldn't have, but we seem to be without means of assuring that they don't have them. With a little thought, though, this conflict can be resolved and shown false; and the solution, oddly enough, still manages to fall pretty much perfectly in line with the rest of the Constitution. Quaint as it may seem, operating out of our base principles tends to work, if we think about it.

The thing to remember is, again, the basic principle that people have the right to defend themselves against unjust aggression. If we operate with that as our starting point, and maintain sound logic, we cannot go wrong. The important thing to think about here is the word "aggression." What constitutes it? "The initiation of force" is one answer, but it doesn't really settle the question -- a slightly better answer is "the initiation of force or the threat of force." Another good way to look at the question, bearing that answer in mind, is that one should not unduly escalate the situation -- if someone threatens, you're justified in taking steps to cope with the threat. This is, of course, a matter of degree and response in kind; there's a far cry between someone who says "you better not be comin' round here this time tomorrow" and someone who shoves a gun into your back in a dark alley.

In the first situation, simply informing the aggressor that you're armed, and hence not someone for him to interfere with, might be the best course of action; in the latter, you'd be justified in shooting to kill, because you'd be dealing with a direct and immediate threat to your life. As always, the basic principle of non-aggression remains the guide. When we extend this to the consideration of "weapons of mass destruction" and other indiscriminate killers, then, the answer becomes obvious; the very existence of such indiscriminate killing tools is a threat to everyone. It's as if someone had a pistol that randomly fired at any bystander within fifty feet of the bearer. Such a weapon would be useless for self-defense, and on top of that, if the owner were so foolish as to inform those bystanders that he had possession of such a weapon, or if he were even to simply load the thing and carry it on his person, such an act would justify the taking of aggressive action by those bystanders against its bearer -- because it would be an immediate threat to their lives. Likewise, then, if an individual were to obtain a weapon of mass destruction -- a nuclear device, biological agent, or what have you -- and then were to in any way threaten to use same, or to in any way harm others with it or allow others to discover that he had such in his possession, then those others would be justified in taking action to defend themselves from same -- because he would be by that act taking aggressive action against them.

And, as I've outlined above, this is roughly the place where we find ourselves under the Constitution -- people have the right to own whatever they wish, and the government can't check on them or have any say in the matter, until they take some form of aggressive or threatening action against others, or give that government some cause to think they may do so. In the case of some weapons, their indiscriminate, inordinately violent nature makes their simple possession a direct threat against every other human being; and, hence, if someone does possess same, drastic and immediate action to eliminate that threat is justified -- something that is not the case with weapons that can be used with discrimination, such as firearms, knives, swords, and even such things as rocket launchers and grenades. All are clearly within the scope of personal discretion; they can be used against aggressors without threatening innocent bystanders, and hence their use or possession does not inherently justify the taking of action against the user or possessor by innocent bystanders.

Admittedly, that's not precisely where we are under all current laws; but those laws that have us elsewhere (for example, the "assault weapons ban") are deviations from our founding principles and should be abolished; should have been abolished already, for they are violations of the Constitution. There is no need in this debate to "draw a line somewhere," nor do we need to "adjust" the Constitution to deal with modern technology (after all, we aren't eliminating the First Amendment because of the Internet.) The line is already drawn for us, by the same basic principles that the "mystic nuclear weapons exception" is an attempt to invalidate. Despite the naysayers, the Constitution, and the philosophy which underlies it, is as valid now as it was at the Founding; and there is no more need to infringe on the individual's right to keep and bear arms now than there was then. There is no "mystic nuclear weapons exception" to the right to keep and bear arms for self-defense, and we have no need of laws that infringe upon our individual right to own any efficient, effective means of self-defense we can obtain. The Bill of Rights, amazingly enough, still works. Let's get back to it.

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