Preface to Gun Control Legislation: Existence of Rights

Many discussions involving gun control legislation focus on arguments for various positions. These arguments have been hashed and rehashed many times in bars, formal debates, and on political platforms. We might dip our toe into some positive and negative arguments for various positions (Mr. Howd has already done this on the argument that gun control legislation should focus on mental illness), but one of the most neglected part of these discussions is the background. I have already given a relevant historical context for these discussions and today I plan to give a philosophical context for discussions of gun rights.

Rights are usually thought of in two ways: a sort of shorthand for some deeper moral concept or some entity or property that beings have innately. I will treat the latter first, since this is what most people think of when they think of rights.

Unfortunately, the conception of rights in which persons have rights innately are very implausible at first. While there may be legal rights (which are merely ideals that the law follows or a way to describe how a set of laws treat an individual), the question is whether we have certain rights even if no one agrees with us. Call this sort of thing a natural right. Natural rights are often instantiated in the law, but they are not always. In these cases, the law is unjust. Similarly, there are legal rights that are not natural rights (think of the legal right to due process by jury; this is impossible without a government that has juries).

What sort of thing would a right be that wouldn’t collapse into more fundamental moral concepts? This question is what prompted Jeremy Bentham to call rights “nonsense on stilts.” Legal philosopher H. L. A. Hart provides a very interesting argument for the existence of these rights, although he has little answer for what kind of thing they might be.1 He merely asserts that we have them in virtue of our ability to choose and that they are separate from moral rights, which are a conditional right to impinge on someone’s freedom. His argument is

(Hart)

  1. If there are any rights, there must be at least one right.
  2. Rights grant permission to interfere with someone else’s freedom.
  3. It can only be the case that one need justify interference if they have a right not to be interfered with in the first place.
  4. Therefore, we at least have a right to not be interfered with (freedom).

This argument is very strong, and it only decisively fell (for most) to a very clever objection some years later. This is considered to be the strongest argument for the existence of natural rights, period. That said, it fails.

The argument relies on each person having equal freedom. If any of us have a natural right to freedom, we all have it to the same extent. But surely I need to respect someone’s freedom even if they are only free, e.g., for one day out of the week! Therefore, this argument doesn’t conclude that we have a natural right to freedom, only that we have some right to freedom.

There are also considerations against rights. For example, if rights are really the locus of moral debate, then why did we not begin discussing them until relatively recently? Locke was one of the first, and he wrote in the 17th century!

If the argument(s) for innate, fundamental, natural rights fails, then we better find something to replace it on the other side in order to keep away from talking about “nonsense on stilts.” There are three ways this could happen: the rights could be reducible to deeper moral concepts, the rights could be conferred by shared communities (governments), or the rights could be conferred by authority (government or God).

If our rights are merely shorthand for deeper moral concepts, then rights are just reflections of what we should do morally. For example, if we think that parents have an obligation to care for their children, then the children have a right to care from their parents.

If our rights are conferred by communities like government, then these appear arbitrary or they are based on moral judgements. Arbitrariness is usually bad when it comes to administration, so it seems this view collapses into the previous one.

If our rights are conferred by an authority like God (God-given rights may come to mind here), then we are either talking about natural rights that God has created (which seem to be opaque or have no good argument for them), that God has decreed that we have them (which means we would have to find where He has decreed it and try to form policy with it), or that God created moral precepts that moral rights are shorthand for (this view collapses into the first).

For any of these three, the rights are no longer easily transferable. When we think about rights as placeholders or as conferred by judgement, we then have to make some policy judgements about what “rights” should make it into the law. This seems to match up with what we do in government and legislation today: even though most consider adultery immoral, adultery is not illegal. The community need not get involved with every instance of wrongdoing.

This sort of situation might even occur if natural or moral rights exist. Even if there is a moral right to not be cheated on, we still might not instantiate this right in the law.

With these options and consequences in our mind, we can put this in a legal context in which there are advocates for and against certain legislation. While appealing to a natural right for a law’s basis would be sufficient for its legislation, we have reason to be skeptical that any such things exist. Moral right gives some weight towards a law’s legislation, but does not guarantee that it should be. If moral rights are just shorthand for some other concept, then little changes except how great the consideration beneath the right is.

But notice that when we are stuck with moral rights and moral principles, we are no longer discussing the type of “rights” conversations that one often hears around gun control legislation (“This is my/our right,”) and on to considerations of whether we should have such a right in our legal system at all and in what capacity.

When considering whether to confer legal rights, there are many factors that need to be assessed. These are where the “ordinary” arguments for and against gun control legislation can come in: what are we willing to pay for in society for the legal right to own assault rifles? What about handguns? Are there benefits to having an armed populace? What are the moral considerations and obligations surrounding individual ownership? All of these and more can be very useful here, but arguments from natural rights will not. Such arguments, as I have tried to show, either reference nonsense or collapse into “ordinary” gun control arguments.

 

Luke Golemon

Endnote: 1 See “Are There Any Natural Rights?”

 

Comments by Howd:

Interesting. I do agree with Mr. Golemon for the most part. If anything, I may be even more skeptical on the category of rights than he.

However, I think it is important to add that rights are often taken to be brute facts; they are have no (nor need any) explanation. But when we examine a list of potential rights, we see that many of them, as noted by Mr. Golemon, are explainable through more atomic reasons (think of the right not to be tortured for no reason justified the badness of unnecessary pain).

The question we must ask ourselves, then, is why do we take some rights to be brute facts and others perfectly explainable? And we must be very careful; the atomic reasons that bear on some rights may be quite relevant to those we take to be brute facts.

Not to be unclear, the natural right to own guns seems extremely flimsy.

 
Curtis J Howd

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