Second Amendment Arguments

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. 

- Second Amendment to the United States Constitution

Like most of you, I suppose, I think a lot these days about guns and the arguments advanced by both sides of what passes for a national debate. An article in Hillsdale College’s Imprimis (March 2013, Volume 42, no. 3) adapted from a lecture given at Hillsdale’s Kirby Center for Constitutional Studies and Citizenship in Washington, D.C., is unsurprisingly adamant in support of gun owners’ rights. (Anyone living in Michigan and knowing anything about Hillsdale College, that is, would not be surprised.) Edward J. Erler makes a strong case for the right to bear arms as an individual, not a collective right, though he may overstate it (or perhaps this was an editorial decision at Hillsdale) with a section heading that reads “The Whole People Are the Militia.” Are the whole people "well regulated"? In what way, and how? If the answer is simply that our society is governed by the rule of law, I hardly think that was what the framers had in mind, but there are other aspects of Erler’s overall argument, including but not limited to the defense of semi-automatic weapons, that I find far more troubling – and, I must say, at times confused and even contradictory, and it is those aspects I want to address.

Stolen Guns

Erler states that “most gun crimes are committed with stolen or illegally obtained weapons...” (clear statistics on percentages are difficult to obtain; most crimes are not committed with guns at all) and notes (statistics bear this out) that most of the guns stolen and used in crimes are handguns. (See Bureau of Justice statistics on firearms and crime.)

Stolen guns are a problem. Who would disagree? Erler’s solution is twofold: (1) more responsible, law-abiding citizens should own guns; (2) prosecution and penalties for crimes involving guns should be swift and harsh. He also argues that semi-automatic weapons, “so-called assault rifles,” as he puts it, are seldom used by criminals but are “extremely well-adapted for home defense,” so presumably (3) more law-abiding citizens should, in his view, arm themselves with semi-automatic weapons. That is, he believes there should be more, not fewer, semi-automatic weapons in American homes. He seems to have no quarrel with a ban on fully automatic weapons, which might be ever so slightly reassuring if the line he draws did not seem completely arbitrary: the government may legitimately ban automatic weapons, he seems to think, but a ban on semi-automatic assault rifles he finds a violation of freedoms guaranteed by the Constitution. It would be interesting to hear how he thinks the framers would have drawn this line or what specific wording in the Second Amendment supports the distinction.

One question about having more guns in American homes seems logical: If there are more guns are in the homes of law-abiding citizens, won’t more guns be stolen? Stolen guns are and must be stolen from their rightful owners. That, after all, is what stealing is. Locking up guns is one proposed solution to not having your guns stolen, but I cannot find that it is Erler’s answer – perhaps because he does not ask the question. (He may have addressed it elsewhere. Anyone wanting to find out is welcome to search his published work more thoroughly than I have done.) His reasoning for semi-automatic weapons in the home is that since “assault rifles are rarely used by criminals, because they are neither easily portable nor easily concealed,” homeowners defending their private citadels with assault weapons (excuse me, “so-called assault weapons; Erler himself objects to and then makes use of the phrase himself without scare quotes) will be better equipped to avoid becoming crime victims. But is this not a dangerous escalation of what we might call the domestic arms race? In light of the fact that most crime is not committed with guns, protecting against it with assault rifles seems extreme.

Guns and Crime

Another logical question is much more difficult to answer: Does gun ownership reduce crime? These seemingly straightforward statistical question is deceptively simple, in that it looks for correlation between two and only two variables. Not surprisingly, the evidence for clear results and a clear direction of causation is murky, and each side picks and chooses among statistics to find numbers supporting its position. For instance, when homicide numbers go down, but homicides by guns goes up, is it fair to credit gun ownership with a drop in violent crime? Here’s a chilling statistic from the same article: "The presence of guns in a home during domestic violence increases the homicide chance for women by 500 percent, according to a 2003 study of domestic violence incidences in 11 cities." But “more guns” is only part of Erler’s solution to the problem of crimes involving guns. The other half, having to do with punishment and prevention. is that we should lock more people up. We should also, he thinks, hand down the death penalty more often and lock some people up before they can commit crimes.

The United States of America, which we like to think of as the freest country in the world, already has a greater percentage of its population behind bars than any other country in the world. Is this a solution or a problem? A retired cop who was a guest speaker once in my ethics class told my students, “If you need to draw your gun, you’ve already lost control of the situation.” If we need to lock up so many Americans, if we need the death penalty, it looks to me as if we’ve definitely lost control of the social situation.

Involuntary Incarceration

Erler’s advocacy of involuntary incarceration is totally baffling. Given his staunch support for the Second Amendment, one might expect he would bring the same vigilance guarding the Fourth Amendment, which gives “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure.” It is a strange inversion of priorities that would put the rights of ownership above the rights of personal freedom, freedom in one’s own person being the very basis of all natural rights. The argument from natural law, which Erler at other times is eager to invoke, is passed over silently when he – and others, who defend guns and point to mental illness as the problem – call for involuntary incarceration where no crime has – “yet,” as they say – been committed.

Gun advocates' promotion of involuntary incarceration as a solution to violence is strange not only from a philosophical point of view but also in light of centuries of abuse of those declared mentally ill by governments for political reasons. Totalitarian governments across the political spectrum, from Communist to Fascist, governments elected and those ruling by blood, have never been shy about calling “mad” those who would oppose or even question their power. If the concern of gun advocates is truly that a free citizenry be able to defend itself against excesses by government – Erler points to the “right of revolution, an essential ingredient of the social compact” – their simultaneous advocacy of involuntary incarceration would seem to close the very door they are fighting, with their guns, to keep open. Who is in a better position to provide for himself and his family and defend himself, his family, and his property – the free man without an assault weapon or the man behind bars?

Erler gives a passing nod to the “horrible exceptions – the mass shootings in recent years....” Those shooters, he argues, were mentally ill and should have been incarcerated before they could kill. (We might note that most of them could not be punished afterward since they turned their weapons on themselves before they could be captured and brought to trial.) Here is Erler on his opposition:

But the same progressives who advocate gun control also oppose the involuntary incarceration of mentally ill people who, in the case of these mass shootings, posed obvious dangers to society before they committed their horrendous acts of violence. From the point of view of the progressives who oppose involuntary incarceration of the mentally ill – you can thank the ACLU and like-minded organizations – it is better to disarm the entire population, and deprive them of their constitutional freedoms, than to incarcerate a few mentally ill persons who are prone to engage in violent crimes.

Has a citizen with a legally obtained handgun been “disarmed” if he has no assault rifle? When, in the absence of violence, is the danger of it to society “obvious”? That is, how is someone “prone” to violence identified before he engages in a violent act? Again, I would point to the strange inversion of rights in Erler’s position. He sees gun control advocates seeking to "deprive" a population of (one) constitutional freedom (I see the goal as setting limits, not depriving), whereas his position opens the door to the taking-away of a much more fundamental constitutional right, the freedom of the person.

Americans who break the law are subject to the law and have the right to trial. Those declared mentally ill by government-appointed experts have no such recourse, no way to defend themselves against charges that are not "charges" but "diagnoses." Neither is their incarceration given any time limit. Those locked away for being mentally ill, even if they have committed no crime, can be stripped of all their rights, sometimes for the rest of their lives, and in the current climate of government cost-cutting it is difficult to see that greater numbers of incarcerated mentally ill could receive appropriate treatment in humane living conditions.

Even professionals who would not want to see involuntary incarceration completely abolished warn about its potential for abuse.

In any troubled relationship between the powerful and the less powerful, like the relationship between a repressive totalitarian government and a dissident citizen, or between parents and a gay teenager, or between husband and wife in a patriarchal society, the language and ideas of psychiatry and mental health practice are open to abuse as a form of social control. In these instances, the mechanism of involuntary commitment is also open to abuse as a way to confine those who are threatening to the social or political order. 

- Alicia Curtis, “Involuntary Commitment,” in Bad Subjects, Issue #58, December 2001. (Click here for full article.)

Curtis cites recent abuses in China, as well as common cases within living memory in our own country where parents could commit a gay teenager for being gay or a husband have his wife locked away for not keeping the house clean. It doesn’t require a wild imagination to come up with dystopian possibilities on the current political horizon.

In Summary

How dangerous is our world today? Where are the greatest potential threats? How might these threats be mitigated? How do we want to balance freedom and safety? These are the questions behind the debate, the questions both sides presume to answer with the positions they take.

When gun advocates see danger in stolen guns, it is difficult to see how more guns available to be stolen will solve the problem.

When they point to potential abuses of government as the danger, their advocacy of involuntary incarceration looks paradoxical, contradictory, and extremely problematic.

Their clarion call for the death penalty clearly speaks to emotions of anger and frustration, but as there has never been evidence that the death penalty is a deterrent, this so-called solution would only lock the barn door after the horse had run away or been stolen – or after the barn had been burned down.

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Again, I will remind you that I do not have an editor, so besides comments of a substantive nature, any needed corrections are always welcome.