Gun violence and fundamental rights

In this essay I develop themes that I have pursued in two previous papers--"Self-defense and Coerced Risk-Acceptance" (1) and "Arms as Insurance" (2)--and then respond to some problems posed by Hugh LaFollette and Cynthia Stark. I The Argument Thus Far Arguably, the right not to be unjustly assaulted qualifies as a "human right." In two previous papers in which I have defended the right to bear arms, I focused on two categories of unjust assailants--private and public sector assailants. (a) Private Sector Assailants: "Self-defense and Coerced Risk-Acceptance" The core "self-defense" argument for a right to bear arms derives it from a fundamental right to preserve oneself from harm, conjoined with empirical facts about technology, the reliability of police protection, and reasonably expected threats. I argue that, given a right to defend oneself against reasonably expected threats, and given that a firearm provides the only practicable means of self-defense, a right to bear arms can be inferred. Whether this right may be overridden by utilitarian considerations or by other rights will depend on a weighing of the risks that a person will be exposed to as a result of being disarmed against the risks that will be imposed by the person being armed. The risks to which a person will be exposed will depend on the person's situation and the attacks that can be reasonably expected. The risks that the person imposes will depend on the weapon and the person's dispositions. On balance, given the empirical results from jurisdictions in which licenses to carry concealed firearms are controlled in the way that licenses to drive automobiles are, the risks favor a right to prepare oneself for assaults by rogue individuals. (b) Public Sector Assailants: "Arms as Insurance" Unjust assaults by governments against those they govern constitute a far more significant category. In the last century, between 100 and 170 million people were murdered by their own governments. (3) Comparatively, the private sector contribution to unjust death is small. A pervasive and recurrent phenomenon in the twentieth century was that of "governments going bad." A familiar sequence was an initially acceptable arrangement of institutions and practices (a "social contract") which then degenerated into various forms of oppression, including genocide or other forms of mass killing of targeted groups. If a government is to be legitimated by consent, some effective constraint on its power is necessary. However, the right to resist government with force can hardly be institutionalized directly into the arrangements by which a sovereign nation exists. Governments, by their position as sovereign, are the ultimate arbiters of all conflict and have the "legitimate" power to enforce their arbitrations, and being the ultimate arbiters of disputes, they may in effect change the terms of the "contract" arbitrarily. An ultimate arbiter is also a meta-arbiter. Once power is effectively monopolized by a government, the power to unilaterally rewrite or reinterpret the contract is also in place. Thus, no effective contractual or institutional constraint on the power of government can be built into the contract in a way that protects citizens against their government acting unjustly. Any real "contractual" constraint on the power of government must be indirect. An indirect contractual constraint is not an explicit constraint so much as a provision that has a constraining practical effect. The rights to bear arms and to assemble do not directly assert that citizens have an effective right to resist their governors when the government begins to go bad. However, the practical effect of such rights is to empower citizens to go some way toward nullifying the "social contract" should the government reinterpret it in an unreasonable manner. Consenting to be governed can be considered a reasonable act only if there is a right that makes it possible for citizens to resist their government if it behaves unreasonably toward them. …