There is a ballot question in my state this November about whether gun regulations passed in 2024 should remain in place. There have been spirited interactions on the Nextdoor app, as you might imagine. Much of the disagreement is focused on the obvious dangers of guns (that the US has some of the highest gun deaths in the world, the devastating loss of life in school shootings) vs. gun rights as enshrined in the Constitution, with some claiming that the current regulations are unconstitutional. I want to examine this claim by exploring what it means to have a right in general, and then what that means for the “right to bear arms” in particular. I will set aside the question of how this right should be interpreted (does it apply to armed forces? To individual citizens?); I will argue that, even if it applies to individuals, enforcing restrictions is perfectly legal within the bounds of the Constitution that specifies that right.
It will be helpful to begin by considering a key distinction in political theory between civil society and what Thomas Hobbes calls the state of nature. As I have noted in a previous post, Hobbes argues that human beings are free and equal simply by being human. Prior to living together in a political community, this fact translated into something like a free for all: we were each in competition with each other for basic survival, which put our very lives in constant danger from each other. Hobbes describes life under these conditions as “solitary, poor, nasty, brutish, and short.” Because this is a horrible way to live, human beings got together and agreed to put limits on their natural freedom and rights: in the state of nature, I can kill or harm another at will in order to survive; in civil society, I agree not to kill or harm you, as you agree not to kill or harm me, so that we might live in peace and security. The law then holds us accountable if we break our agreement. In short, sharing the world with others requires that we limit our natural rights.
These limitations are grounded in the reciprocity of rights—I acknowledge your rights as well as my own—and in the injunction not to harm others. In the first case, we might say that my rights end where yours begin. Consider the rights enumerated in the first amendment of freedom of speech and the practice of religion. I have the right to speak my mind, even if what I say may annoy or offend someone else. But others have the right to speak their mind, even if I am annoyed or offended by their speech. So far, so good. A problem arises, however, if I assume that my rights are more important than anyone else’s, as is the case if I speak my mind but work to prevent others from speaking theirs. Consider the rash of book bans and the outlawing of certain courses of study at institutions of higher learning: the folks who institute these bans want very much to say whatever they want about various marginalized groups but they don’t want anyone to be able to publicly explain or explore their experiences as members of these groups. Many politicians, increasingly on both sides of the aisle, call trans women “men” or use their dead names; at the same time, numerous trans memoirs and novels have been banned in communities across the country. Here we have free speech for some and imposed silence for others, a clear violation of the first amendment. And so with religious practice. I have the right to practice whatever religion I want to, even no religion at all if I so choose. But you have the same right to practice yours, even if I find your religion weird, or wrong, or silly. Because of that reciprocity, however, I do not have the right to force my religion on anyone else. Christian nationalism would thus be another clear violation of the first amendment. Teaching the Bible in schools, for instance, would be forcing one set of religious beliefs on everyone, Jews, Muslims, Buddhists, and atheists alike; even if they refused to believe what was being imposed on them, the imposition itself would be a violation of the freedom of religion because of that imposition.
Our rights are also limited by the potential harms that might come to others when we exercise them. Consider, again, the first amendment. Shouting “fire!” in a crowded theater when there is no fire is illegal because doing so can lead to real and unnecessary harm and even death should a stampede erupt in response. Similarly, again, with religion: if my religious practices or beliefs harm or endanger others, then limits on those practices would be called for. Some argue, for instance, that parents should not be allowed to refuse vaccines or life-saving blood transfusions, even for religious reasons, because of harm to the child.
What’s true of the first amendment is also true of the second: limitations on the right to bear arms are built into the right itself because of the existence of other people. As the right to practice a religion of one’s choosing (or no religion at all) can be violated when some seek to enforce their religious beliefs on others, and as the right to free speech can be violated when others forbid the expression of beliefs or descriptions of experiences they find objectionable, so too I worry that second amendment rights could be violated when the risk of gun violence is high. Consider calls to arm teachers and other school staff in response to the epidemic of school shootings in the US. Teachers rightly have a strong desire to protect their students from harm, whether that be bullying or harassment, or actual violence—there are numerous stories of teachers who sacrificed themselves to save students during a school shooting (see just one example here). In the face of ongoing violence, and in a moment where gun regulations are seen as Constitutional violations, might some school staff feel coerced to carry a gun to/in school, even if they don’t want to? If so, their right not to bear arms would be violated, just as being forced to study the Bible would violate an atheist’s right not to practice any religion whatsoever. Similarly for the rest of us. For instance, the first time I flew after 9/11, the airport was patrolled by military personnel carrying automatic weapons. I felt the chances of harm or death were heightened rather than lessened. If everyone around me were carrying a gun, I would feel equally unsafe; I absolutely do not want to carry a gun (I’ve never even touched one) but I might feel that I have no choice in a heavily armed society.
The right not to be harmed leads to a similar problem with unlimited access to guns. They are by their very nature harmful: they are meant to harm and kill, and studies show that the more guns there are, the more harm and death there are from their use. That fact suggests that we have an obligation to limit their harmfulness. The law on the books in my state does just that. It requires gun registration to keep track of ownership, serial numbers (which may aid in identifying who owns a gun that has been involved in a crime), and a safety certificate indicating that the owner knows how to properly handle a gun; it forbids assault weapons; it allows individuals in certain roles, such as a school administrator, to request a protection order; and it allows courts to prohibit gun ownership to someone who has a harassment order against them. Each of these provisions seeks to minimize harm—knowing how to properly handle a gun makes it less likely that you will accidently shoot someone—or to make it easier to identify someone who has committed a crime with a gun. The only provision that actually takes a gun away from someone does so because that person has already shown themselves to be a danger to others; surrendering their gun makes it less likely that they will kill them. The right to own a gun is thus limited under these restrictions by other people’s right not to be harmed or killed.
What constitutes harm can be manipulated to one’s own, self-centered ends, of course. Claims about harm have been frequently used to justify shutting down LGBTQ+ pride parades, drag queen performances, and gender affirming care for minors (and for adults in some places). There is absolutely no evidence that any of these practices cause harm to anyone; indeed the evidence suggests the opposite: that lack of access can lead to serious mental health issues, including suicide. And so with book bans and areas of study: there is no evidence that reading books and studying about racism, slavery, LGBTQ+ history, etc. causes any genuine harm; at most, they may make some white, heterosexual people mildly uncomfortable. There is, however, incontrovertible evidence that guns cause serious harm and death. These examples make it clear that gun regulations are not unconstitutional but are necessary because of the shared nature of political and civic life. Without some limitations, we would be living not in civil society at all but in the state of nature, where life indeed is “solitary, poor, nasty, brutish, and short.”
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