Dialogues on Gun Control (Philosophical Dialogues on Contemporary Problems) [1 ed.] 0367615320, 9780367615321

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Contents
Preface
Acknowledgments
Foreword
Dialogue 1: Is American Gun Policy a Moral Issue Meriting Serious Attention?
Dialogue 2: Does a Focus on Social Consequences Support Substantial Gun Control?
Dialogue 3: Does a Right to Self-Defense Support Gun Rights?
Dialogue 4: Do Appeals to Liberty Support Gun Rights?
Dialogue 5: Do Other Moral Rights Strengthen the Case for Substantial Gun Control?
Dialogue 6: What Would Morally Justified Gun Policy Look Like?
Index

Citation preview

Dialogues on Gun Control

What happens when two intelligent American college students with different attitudes about guns launch into a careful exploration of the ethics of gun policy? What might a European exchange student add to the mix? All three characters in this book are fictional, the creation of author David DeGrazia’s imagination. But their vigorous, respectful conversations over six meetings—well-informed by the latest empirical data and the best available philosophical arguments—shed needed light on the reality of guns in the U.S. today. These dialogues introduce students, professional academics, and others to the American experience with gun violence and gun policy, articulating ethical arguments supporting and opposing substantial gun control and specific possibilities for reform. They also demonstrate how those who initially disagree about the place of guns in American society can communicate constructively and agree on many ideas. Dialogue 1 distinguishes legal rights to private gun ownership from the ethics of gun policy and illustrates how the U.S. is an outlier with respect to gun violence, gun ownership, and gun politics. Dialogue 2 explores the overall social consequences of high rates of gun ownership and minimal regulation and enforcement. Then, turning to moral rights, Dialogue 3 probes the subtle relationships among a right to self-defense, its possible foundation(s), and alleged gun rights. Dialogue 4 turns to appeals to various liberties as possible bases for gun rights. Next, Dialogue 5 examines the possibility that various other moral rights—such as a right to a reasonably safe environment—can illuminate gun policy ethics. Finally, Dialogue 6 concludes with a fairly detailed exploration of the shape of morally defensible gun policy in the United States. David DeGrazia is Elton Professor of Philosophy at George Washington University. Among his ten books are Taking Animals Seriously (1996), Human Identity and Bioethics (2005), Debating Gun Control (with Lester Hunt, 2016), and A Theory of Bioethics (with Joseph Millum, 2021).

Philosophical Dialogues on Contemporary Problems

Philosophical Dialogues on Contemporary Problems uses a well-known form—at least as old as Socrates and his interlocutors—to deepen understanding of a range of today’s widely deliberated issues. Each volume includes an open dialogue between two or more fictional characters as they discuss and debate the empirical data and philosophical ideas underlying a problem in contemporary society. Students and other readers gain valuable, multiple perspectives on the problem at hand. Each volume includes a foreword by a well-known philosopher. Dialogues on the Ethical Vegetarianism Michael Huemer Dialogues on the Ethics of Abortion Bertha Alvarez Manninen Dialogues on Climate Justice Stephen M. Gardiner and Arthur R. Obst Dialogues on Gun Control David DeGrazia Dialogues on Free Will Laura Ekstrom Dialogues on Immigration and the Open Society Chandran Kukathas For more information about this series, please visit: www.routledge.com/ Philosophical-Dialogues-on-Contemporary-Problems/book-series/ PDCP

Dialogues on Gun Control

David DeGrazia

Designed cover image: © artas / Getty Images First published 2023 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 David DeGrazia The right of David DeGrazia to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. ISBN: 978-0-367-61532-1 (hbk) ISBN: 978-0-367-61530-7 (pbk) ISBN: 978-1-003-10540-4 (ebk) DOI: 10.4324/9781003105404 Typeset in Bembo by KnowledgeWorks Global Ltd.

For my family

Contents

Preface viii Acknowledgmentsxii Foreword xiii Dialogue 1: I s American Gun Policy a Moral Issue Meriting Serious Attention?

1

Dialogue 2: Does a Focus on Social Consequences Support Substantial Gun Control?

16

Dialogue 3: Does a Right to Self-Defense Support Gun Rights?

33

Dialogue 4: Do Appeals to Liberty Support Gun Rights?

61

Dialogue 5: Do Other Moral Rights Strengthen the Case for Substantial Gun Control?

85

Dialogue 6: W hat Would Morally Justified Gun Policy Look Like?

97

Index

125

Preface

My Vantage Point Growing up, I did not think very much about guns. Only three times did I use a firearm, specifically a rifle, each time in connection with the Boy Scouts during my teen years: twice in summer camp at a shooting range, with exemplary adult supervision, and once on a camping trip, when several of us (somewhat irresponsibly) shot beer cans at a distance. In the years of my childhood, adolescence, and early adulthood I mainly thought about guns when I read or heard about homicides, suicides, or the occasional gun accident. I was lucky enough to grow up in a safe suburban neighborhood—and not as a member of a marginalized minority group. I was never threatened with a gun, never felt the need to have one, and rarely even saw one except in a police officer’s holster or on television or in movies. Guns were not a big part of my life. So why did I become an author on the topic of gun policy ethics? There were two reasons. First, I became deeply demoralized reading newspaper articles about mass shootings, firearm tragedies involving children, and other fatal misuses of guns. Even though I did not know much about firearms, gun violence, or relevant policies, to me so many senseless killings constituted an urgent social problem. Second, I had been trained in philosophy with specializations in ethical theory and applied ethics. Listening to politicians and laypeople argue about gun rights and gun control, I was not very impressed by the quality of discourse, which was often characterized by inattention to salient facts, careless reasoning, and rhetorical fireworks. Maybe someone with extensive training in ethics and an analytical bent of mind could help clarify some of these issues. When I searched the literature on the ethics of gun policy, I found that only a few philosophers and ethicists had contributed. Perhaps I had something to offer.

Preface ix

Delving into gun policy ethics represented a big commitment because it meant educating myself about several complex topics: the legislative status quo concerning guns; empirical evidence regarding the relationships among gun ownership, gun violence, and existing regulations; proposals for reform; as well as the more philosophical arguments on all sides of this debate. Finding time for this research also meant setting aside work in other areas in which I had long been engaged. But a grant from George Washington University for summer research in 2012 catapulted my foray into gun policy ethics; and, within a few years, I had published a couple of journal articles, a book review, two newspaper Op Eds, and a coauthored book (Debating Gun Control [Oxford University Press, 2016], with Lester Hunt). After 2016, however, I wasn’t actively working in this area—until Andy Beck of Routledge Press invited me to write the present volume. At first, I was unsure I had anything to add to what I had written in the earlier book and shorter writings. But, on reflection, I realized that I had not yet addressed several specific topics and important arguments. This book would afford me an opportunity to explore issues more thoroughly. Moreover, as I write this Preface in spring 2022 I am convinced that helping to illuminate the American experience with gun violence and the ethics of gun policy has never been more urgent. Less than two weeks ago an 18-year-old used a military-style assault rifle, which he was able to purchase legally, to slaughter first his grandmother and later 19 children and two teachers in an elementary school in Uvalde, Texas. This was just one of more than 20 acts of gun violence at American K-12 campuses so far this year. Only ten days before the massacre in Texas, another teenager, apparently a White supremacist, gunned down ten Black people at a supermarket in Buffalo, New York. Stepping back from these recent tragedies, I am struck by the fact that in the last few years the number of gun deaths in the United States—both involving children and for the overall population—has surpassed the number of automobile deaths. The U.S. has a massive problem with gun violence, a problem that does not seem inevitable when one considers the legislative approaches and relative successes of other developed countries. I hope that this book will contribute to and encourage clear, well-­ informed, and ethically rigorous thinking about how to address this country’s problem of gun violence. The invitation to write a book in the format of a series of dialogues was attractive. I have long felt that dialogues can be a great way to engage and educate readers. As a college student, I loved Plato’s dialogues, which got me going in philosophy and pushed me to think about the foundations of ethics. In graduate school, I had the pleasure

x  Preface

of encountering George Berkeley’s Three Dialogues between Hylas and Philonous and David Hume’s Dialogues Concerning Natural Religion. And two decades ago, I presented a paper on personal identity and bioethics in the form of a dialogue at a professional conference. Considering how rewarding that last experience was, I am slightly surprised that it took me so long to write again in this format. Dialogues have the advantage of employing very natural-sounding language, which is easier— and, typically, more enjoyable—to read than standard academic prose. Dialogues can cut quickly to important ideas, rather than making all the moves that academics writing for others in their discipline generally feel compelled to make. They also permit the author not to be perfectly grammatical (an obligation I find burdensome when correct grammar differs from how almost everyone speaks and writes). Having two or more interlocutors permits more than one personality to emerge, which can be entertaining. And, when the interlocutors are college students, as they are in the present dialogues, there is a good chance that collegiate readers will be able to identity with them. Perhaps mature high-school students will as well. With these advantages of the dialogue format, I am especially happy to have written this book.

Audience and Aims Dialogues on Gun Control has several target audiences. One is college and graduate students taking classes in applied ethics or public policy. Another target audience includes everyone who is curious about gun policy ethics and would appreciate the careful exploration of this topic in dialogue format. Although the major purpose of this work is educational, specialists in applied ethics or gun policy should find it of interest insofar as it reflects the current state of evidence and much of the best reasoning about this topic, some novel arguments, and an unusual proposal for American gun policy. In addition, readers outside of the United States might find this work of interest because it characterizes the unique American experience with guns, puts it in relief through the perspective of a foreigner (who participates in two of the six dialogues), and clarifies why optimal policy in the U.S. is unlikely to be the same as optimal policy in other countries. The overarching aim of Dialogues on Gun Control is to illuminate the ethics of gun policy—with special attention to the United States—in an accessible, engaging way. Success in producing an accessible, engaging work depends on the quality of writing, which I will leave for my readers to evaluate. Success in illuminating the issues requires adequately characterizing the American gun status quo and carefully working

Preface xi

through leading ethical arguments in favor of, and opposing, a substantial expansion of gun regulations in the U.S. Doing justice to the ethical arguments sometimes requires probing distinctively philosophical issues—including whether a particular ethical theory such as libertarianism is defensible, what it means to say that someone has a moral right, and what moral rights we ought to ascribe to individuals. Doing justice to the empirical or factual dimensions of the debate requires good scholarship in various relevant literatures—much of which is reflected in the footnotes. (Readers who are chiefly interested in the principal ideas, with less concern about documentation, can read the main text—the dialogues themselves—with little attention to the footnotes.) Doing a credible job with the ethical and empirical issues also requires a reasonable balance in presenting arguments. A cardinal virtue in philosophy, as I understand the discipline, is intellectual honesty, which requires presenting and bringing to life not only the strongest arguments in favor of one’s own view but also the strongest arguments opposing one’s view. Philosophers do not always display this virtue but should endeavor to do so as much as is humanly possible. In the dialogues presented in this book, the character Sandy defends more or less the view I believe to be correct and, not surprisingly, comes out strong in the debate. But the other main interlocutor, Pat, vigorously challenges Sandy on many points and prevails, or at least neutralizes Sandy, with respect to some issues. This character also represents a personal and cultural experience with guns that I lack and understand only through other people’s experiences. While I hope to educate readers about the inadequacies of current American gun policy, and to advance defensible proposals for reform, I also hope to bring to life the best reasons for doubting my way of thinking. Meanwhile, I intend to show that Americans with different perspectives on gun rights and gun control, if they are being reasonable and constructive, can agree on several needed reforms. David DeGrazia George Washington University, Washington, DC

Acknowledgments

There are several individuals and institutions I would like to thank in connection with my work on this project. First, I thank Andy Beck for envisioning a book on the ethics of gun policy in dialogue format. Had he approached me about working on a second book about gun control in the usual format of scholarly prose, I would not have found the prospect sufficiently novel to accept the invitation. Second, I would like to thank several individuals who have shared ideas with me about the ethics of gun policy, helping to improve my own thinking: Hugh LaFollette, Allen Buchanan, Jeff McMahan, Firmin DeBrabander, Donald Bruckner, Joe Millum, Lester Hunt, and Mike Huemer. Additional thanks to Jeff McMahan for commenting very helpfully on a draft of this manuscript. I would also like to thank Princeton University’s Center for Human Values for having me lecture on this topic, the University of Colorado—Boulder’s Center for Values and Social Policy for hosting a debate between Lester Hunt and me, and the University of Delaware’s Department of Philosophy for hosting a debate between Mike Huemer and me. In addition, I am grateful to several members of the Department of Philosophy at George Washington University for providing feedback on drafts of Dialogues 1, 2, and 3—especially Eric Saidel, Tad Zawidzki, Jeff Brand, Avery Archer, Mark Ralkowski, and Lloyd Eby. Thanks as well to the Department of Philosophy, the Columbian College of Arts and Sciences, and George Washington University for long-term employment in a supportive work environment. In addition, I am grateful to the university for a generous summer grant in 2012—from the University Facilitating Fund—that helped to initiate my work in this area. Finally, as always, I thank my wife and partner, Kathleen Smith, and our daughter, Zoë, for their love and support.

Foreword

I grew up in rural South Carolina in a home liberally stocked with guns, several of which became mine when I was around 12. At intervals I worked on a farm with a kindly, mild-mannered man who, when drunk and arguing with his wife, killed her by shooting her in the face. South Carolina is a microcosm of the U.S. At present, it has a population of 5.4 million and an annual average of 377 gun homicides. In England (where I live now) and Wales, there are 60 million people, of whom 35 were killed by guns in the year that ended on March 31, 2021. Part of the explanation of this striking contrast is that, apart from a few country squires who rejoice in killing birds, almost no one in England has a gun, and even fewer have a handgun. And it is easier to kill people if one has a gun, and easier to defend oneself if one’s attacker lacks one. The U.S. obviously has a serious problem with gun violence—far more serious than in other countries in which moral philosophy is a highly developed field of study. This may explain why there has been so little writing about guns by the world’s moral philosophers. Yet such work is essential to understanding and resolving the problem. Much of the debate is dominated, as my initial remarks are, by claims about statistics and what can be inferred from them. But questions about the private possession of guns and about gun control cannot be answered on the basis of statistics alone. There are issues about rights and liberties, about how conflicts between rights should be resolved, and about how rights should be weighed and balanced against considerations of consequences. There are also legal issues, such as how the Second Amendment of the U.S. Constitution should be interpreted and whether that Amendment is good law or should be revised or repealed altogether. These are issues that moral and legal philosophers are well qualified to address. And they are indeed thoroughly addressed, along with many

xiv  Foreword

other fundamental moral, political, and legal issues concerning guns, in David DeGrazia’s highly readable book. DeGrazia is not only one of the U.S.’s leading moral philosophers but has also written as extensively and illuminatingly about guns as any living philosopher. As an introduction to the moral problem of gun violence that critically examines the arguments on both sides, this book could not be bettered. Jeff McMahan University of Oxford, Oxford, UK

Dialogue 1

Is American Gun Policy a Moral Issue Meriting Serious Attention?

Setting: A coffee shop at an American university. Pat, who hails from a small town in the Rocky Mountain West, has a tall latte in hand. Sandy, who grew up in a large East Coast city, is halfway through a chocolate mocha. Pat joins Sandy at a table. Jan, a European exchange student, sits two tables away, nursing an Espresso. Hey! How’d you like PoliSci today? I thought the digression about gun violence was super interesting and wish Professor Z had let the discussion go on longer. Sandy: Yeah, but one thing I love about college—compared to high school—is that less time in classes means more time to hang out and talk. Seriously, some of the best learning experiences I’ve had have happened in totally unplanned conversations— what my grandparents call “bull sessions.” Pat: Same. Speaking of the class discussion, it was depressing to think about last week’s mass shooting. The guy, a teenager, got a handgun and an assault weapon1 from his parents’ closet and ended up mowing down 11 middle school students! I feel

Pat:

1 In these dialogues, the term “assault weapon” will refer to any semi-automatic rifle, pistol, or shotgun that can carry detachable ammunition magazines and has one or more additional features associated with military weaponry such as a pistol grip behind the trigger. The semi-automatic feature allows the weapon to reload automatically but requires a finger pull on the trigger for each shot. By contrast, fully automatic firearms—such as machine guns and submachine guns—not only reload automatically but also fire continuously as long as a shooter depresses the trigger and ammunition is available. The National Firearms Act (1934), the Gun Control Act (1968), and the 1968 Hughes Amendment placed strict limitations on the acquisition of automatic weapons. Obtaining one requires an extensive FBI background check and incurs a substantial tax, and only those registered with the federal government prior to 1968 can be owned or sold.

DOI: 10.4324/9781003105404-1

2  Is American Gun Policy a Moral Issue Meriting Serious Attention?

so sorry for those kids and their families. And probably everyone who was in the vicinity is traumatized … they could have PTSD for years.2 Sandy: No doubt. Those mass shootings are the worst—and they happen so often in this country. But a lot more people are killed in other shootings, one by one. We don’t hear about them as much because they’re not sensational like mass shootings. Last year, according to the paper, over 45,000 people died in the U.S. from gun violence!3 That’s way more people than died last year in automobile accidents,4 which is amazing considering how much Americans drive in a year! Pat: Yeah, I know the number of American gun deaths is really high. But I’ve heard more than half of them, maybe two thirds, are suicides.5 So when people say America has a ton of “gun violence,” we have to remember that much of it is self-inflicted. It’s not all murders. Sandy: Agree. What bothers me, besides how many guns are out there and how easy it is to get them, is the culture of gun worship. For instance … see that pickup truck parked outside—over there? It’s covered with pro-gun stickers. As you can see, one says “Don’t Tread on Me: Second Amendment,” not very original. Another says “Fuck Gun Control,” using images of assault rifles for both the “F” and the “k”—more original, I guess—and a third says “My Family” with pictures of two large guns and several small ones. It burns me up when I see stuff like that! It’s almost like a trigger for me …. Pat: Did you really just say that? Sandy: Sorry, I didn’t mean to pun. But I get worked up sometimes when I think of a close friend of my mom who was killed by her own depressed 16-year-old son, who then killed himself. They didn’t need to have a handgun in the

2 Post-traumatic stress disorder. 3 This imaginary tally is comparable to the 2020 total, 45,222, as determined by the U.S. Centers for Disease Control and Prevention (https://www.cdc.gov/violenceprevention/ firearms/fastfact.html; accessed August 31, 2022). 4 The 2019 total, the most recent listed by the U.S. Department of Transportation, was 36,096 (https://www.nhtsa.gov/press-releases/nhtsa-releases-2019-crash-fatality-data; accessed August 31, 2022). 5 See, for example, Erin Grinshteyn and David Hemenway, “Violent Death Rates in the US Compared to Those of Other High-Income Countries, 2015,” Preventive Medicine 123 (2019): 20–26, at 21–22.

Is American Gun Policy a Moral Issue Meriting Serious Attention? 3

house—they lived in a safe neighborhood—and the parents didn’t lock up their weapon. Most of our neighbors, I’m pretty sure, don’t have guns. But this family did and all it did was lead to tragedy. It makes me sick! And then we have all of these American gun nuts romanticizing guns and all the violence they make possible. Pat: Wow, I didn’t know you had lost a couple of neighbors like that! I’m sorry to hear about it. But gun ownership isn’t just a means to senseless killings as some people—and the liberal media—make it out to be. There are legitimate reasons to have guns and, dealt with properly, they can be good for a family to have. Sandy: A handgun certainly wasn’t good for my neighbor’s family to have. Pat: No, I guess it wasn’t, at least as long the teenager was able to get his hands on it. But we can’t reject gun ownership just because guns are sometimes tragically misused. This might sound “politically incorrect,” but maybe some amount of gun deaths is a price we have to pay for living in a very free society. I mean, we understand here that people have a right to bear arms and, when lots of people have arms, some bad shit is going to happen. And what can we do to change things? The Second Amendment says there’s a right to own guns. A constitutional right. At least that’s the Supreme Court’s reading. Sandy: Yes, it is. But it hasn’t always been. Pat: What do you mean? Sandy: I researched this for a paper in American History. For a long time the U.S. Supreme Court seemed to understand the Second Amendment as being about state militias, not private citizens in general. How does it read again? [Does a quick smartphone Google search.] Here it is: “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.” Boy, they had some weird punctuation and caps back then—not to mention the sentence structure. Whatever. The sentence seems to say that, since a well-regulated militia is necessary for state security, there is a right to keep and bear arms. That sounds like it’s about the need for armed militias. In 1939, after Congress passed a law barring sawed-off shotguns, which a lot of gangsters used, the Supreme Court decided that this law did not violate the rights of those who wanted these weapons. Why not? Because sawed-off shotguns weren’t needed

4  Is American Gun Policy a Moral Issue Meriting Serious Attention?

for a well-regulated militia.6 This decision suggested that the Second Amendment protects a collective right to bear arms tied to service in a militia. So, if you were serving in your state militia, you had a right to bear arms. Pat: What’s the deal with state militias? Why did people think they were needed in those days? Sandy: For defense. There wasn’t a standing army yet. Who else than men in the militias of the different states could fight if Britain invaded again or some other country invaded? States also worried about the possibility of attack by Native Americans or by insurrectionists from inside the state. The federal government established a standing army before long but still relied on the state militias to supply most of its troops. These militias were partly replaced by the National Guard in the 20th century. I’m a little hazy on the details, but it looks like all the history is consistent with the idea that the Second Amendment is about a right to have guns in connection with some sort of military service. It doesn’t look like it was about a right for private citizens in general to bear arms. That’s a newer idea. Pat: That’s an interesting point for me, especially since I’m from a military family. Maybe, back in the day, states were concerned not only about foreign invasion, Indians, and rebels but also about the new federal government itself. If the federal government became oppressive—like the old British crown did when Maryland, Virginia, and the others were colonies—the states would need a way to fight it off. Militias were not just the new country’s fighting forces but also the military of individual states. And, hypothetically, if no federal government had been formed, the states would have been independent national states, basically different countries. Then the “united states” would not have been a very accurate description, much less the name it eventually turned into. But I digress, as they say. Sandy: Everything you just said makes sense. What’s interesting to me is that our Supreme Court changed its view about the Second Amendment. That was in 2008 with the Heller decision,7

6 United States v. Miller, 307 U.S. 174 (1939). 7 District of Columbia v. Heller, 554 U.S. 570 (2008), with Justice Scalia writing for the majority. Technically, this decision was limited to federal enclaves such as the nation’s capital. The reasoning was extended to the states in McDonald v. City of Chicago, 561 U.S. 3025 (2010), with Justice Alito writing for the majority.

Is American Gun Policy a Moral Issue Meriting Serious Attention? 5

which was decided by the slimmest of margins: five to four. The majority asserted a right to private gun ownership while also, interestingly enough, saying this right was compatible with a lot of regulations related to public safety. So, gun rights for private citizens and gun control—a point that a lot of progun people seem to miss. When they claim that moderate gun regulations violate the Second Amendment, they can hardly point to these decisions by the Supreme Court. But, again, my main point is that the most interesting finding of the Heller case—that a right to private gun ownership is grounded in the Second Amendment—is debatable and, to my mind, pretty doubtful from a historical standpoint.8 Pat: Hmm, I wonder about that. Gun people seem really confident that they have a constitutional right to gun ownership, based on the Second Amendment. I’m not sure what they think about the reference to militias. I suppose they think it doesn’t matter anymore. Sandy: Maybe, but it would be strange for any “originalist”—anyone who thinks the correct interpretation of the Constitution is how its wording was originally understood—to blow off the first clause of the Second Amendment. Anyway, the Supreme Court’s decision in Heller might not be the final word. With different membership, the Court could change its mind someday. Pat: You might want to put a lot of stress on that word “someday.” With President Trump’s three appointments to the Supreme Court, it’s more conservative than it was at the time of the Heller decision you mention. And I know about its more recent decision, handed down in 2022.9 The Court struck down a very old New York statute that made handgun owners have a permit to carry concealed handguns in public, and to get that permit they had to show “proper cause” or a legitimate reason to carry. Good riddance to that law! I mean, if you have a right to have a handgun in the first place, in order to protect

8 Supporting this critical judgment of the Court’s majority finding are the dissenting opinions written by Justice Stephens and Justice Breyer in District of Columbia v. Heller. For good discussions of the historical context of the Second Amendment, see David Hemenway, Private Guns, Public Health (Ann Arbor: University of Michigan Press, 2010), pp. 152–156 and Robert Spitzer, The Politics of Gun Control, 5th ed. (Boulder, CO: Paradigm, 2012), pp. 21–29. 9 New York State Rifle & Pistol, Inc. v. Bruen, 597 U.S. (2022).

6  Is American Gun Policy a Moral Issue Meriting Serious Attention?

yourself at home, it’s only logical that you should be allowed to carry it in public, where you might need it even more. Sandy: But, when you’re out and about in public, you are, by definition, not on your own property. And gun violence is a public health problem. So, even if you have a right to have a gun at home, it doesn’t automatically follow that it’s OK to carry it around in public. Pat: But people’s rights can’t be infringed just because it might be better for public health. If you have a constitutional right to something, that means the government can’t take it away—at least that’s how I understand constitutional rights. Sandy: You make a good point but let’s back up. Is there even a right to gun ownership in the first place? A moment ago I was beginning to challenge the Supreme Court’s decision that the Second Amendment supports private gun ownership. You’re right that, with the current members of the Supreme Court, it won’t go back on its Heller decision anytime soon. But one possibility, admittedly down the road a ways, is that Congress would overturn Heller and the decision about carrying, like it overturned the awful Dred Scott decision10 —the one that said Blacks couldn’t be U.S. citizens. Congress passed the Civil Rights Act of 1866 and then, after a legal challenge to the act, ratified the Fourteenth Amendment. So the Supreme Court doesn’t always have the final word. But you know what? Interpreting the law is interesting, but I’m more up for getting into an ethical, or moral, issue: Is there a moral right to own guns, use them, and maybe carry them in public? Pat: I’m interested in that question, too. But … does it even make sense? I mean, the legal right to bear arms is recognized in our political system—it’s established, at least for now. What room is there to talk about a moral right? What would be the point? Sandy: Plenty of room and point, I’d say. We went into this in an ethics class I took last year. So think of it this way. Imagine that the Supreme Court decided that there is not a constitutional right to bear arms—that the Second Amendment is only about guns in military service. How do you think gun lovers would respond? They’d be up in arms … oof, sorry, no pun intended! They’d say people have a moral right to have guns and any legal system that disallows gun ownership

10 Dred Scott v. Sanford, 60 U.S. 393 (1857).

Is American Gun Policy a Moral Issue Meriting Serious Attention? 7

is illegitimate for violating such an important moral right. They might say it was like the Apartheid legal regime in South Africa’s past, which violated the moral rights of nonWhite people by treating them as having lesser standing than Whites. A lot of gun people seem to think there are moral— not just legal—rights to gun ownership.11 Gun opponents, or gun control people, generally deny this.12 Or I guess some deny this and others think there might be gun rights but they’re very limited and qualified in ways that justify strict gun regulations for the sake of public safety.13 Even those who deny there are moral rights to gun ownership often think in ethical terms about this issue: that morally sound gun policy would either involve a ban on guns or a lot of restrictions, a lot more than there are today at the federal level in the U.S. So there’s definitely space for ethical evaluation of public policy, no matter what existing law says. Pat: Makes sense. Ethical beliefs are often why people call for changing what they consider bad laws and policies. As in “Human beings have a right to health care so we should have national health insurance and avoid any situation in which people can’t get the care they need.” That’s not my view but the idea is clear enough. Or “People have a right to free speech so conservative speakers shouldn’t be harassed and intimidated on campus when they’ve been invited to give a lecture.” OK, so let’s talk about the ethics of gun control. What gun policies would be best from a moral perspective? Would an ethically defensible policy approach be more or less like the current American approach? Or maybe a lot more restrictive? Sandy: It’s such a huge topic, though. Maybe we could focus on gun ownership rather than carrying guns in public. Unless there’s a right to own guns and keep them at home, there wouldn’t be a right to carry them around. So I say, let’s focus on the basic issue of private gun ownership.

11 For a lively expression of this viewpoint, see Andrew Napolitano, “The Right to Shoot Tyrants, not Deer,” The Washington Times ( January 10, 2013; https://www.washingtontimes.com/news/2013/jan/10/the-right-to-shoot-tyrants-not-deer/). 12 See, e.g., Nicholas Dixon, “Handguns, Philosophers, and the Right to Self-Defense,” International Journal of Applied Philosophy 25 (2011): 151–170. 13 See, e.g., Hugh LaFollette, “Gun Control,” Ethics 110 (2000): 263–281.

8  Is American Gun Policy a Moral Issue Meriting Serious Attention?

Works for me. But, maybe if we get clear enough on the ownership issue we can also tackle the issue about carrying guns. Like I mentioned, the Supreme Court has weighed in on that topic and it might be hard to sideline. Sandy: Sure ….

Pat:

Jan, who had been trying (with mixed success) to read nearby, walks over. Hi, guys!14 Sorry to interrupt but I couldn’t help overhearing your conversation and found it really interesting. Do you mind if I sit down? Pat: Not at all! Sandy: Have a seat. Jan: Thanks. Now I have to admit, as a European I just don’t get you Americans when it comes to guns! Pat: What do you mean? Jan: The U.S. is so extreme in its infatuation with guns and so-called gun rights! So biased against government regulation! Did you know, there are actually more guns in this country today than there are people?15 No other country has nearly as many.16 And the restrictions on getting, using, and carrying guns are so puny! Meanwhile, the system seems designed almost to encourage criminals to get guns, gun dealers to get away with illegal sales, and gun makers to evade responsibility for whatever carnage happens with their products! Sorry if I sound preachy. But I find it truly amazing that a civilized country would deal with guns in such an irresponsible, self-defeating way. Pat: Well, I don’t mind challenges to how we do things here, but I’m not sure I understand what you’re talking about. What did you mean in saying the American system seems designed to allow criminals to get guns and all that? And, just curious: how do you know so much about our system? Jan:

14 The reader should remember that “guy” is sometimes used in a gender-neutral way. 15 See Christopher Ingraham, “There Are More Guns than People in the United States, according to a New Study of Global Firearm Ownership, Washington Post ( June 19, 2018; https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-moreguns-than-people-in-the-united-states-according-to-a-new-study-of-global-firearmownership/). 16 Nicholas Kristof, “How to Reduce Shootings,” New York Times (November 6, 2019; https://www.nytimes.com/interactive/2017/11/06/opinion/how-to-reduce-shootings.html).

Is American Gun Policy a Moral Issue Meriting Serious Attention? 9

I researched American gun policy and politics for a professor I worked with last summer. She was starting a book on international perspectives on gun regulation. Anyway, what I was trying to say was that the U.S. seems, at least from my European perspective, extremely permissive with its gun policies and extremely pro-gun in its attitudes. Let me offer some examples I learned about last summer. I went over and over them so I have them pretty much committed to memory. For one thing, just about anyone can buy a gun. Background checks are required only for purchases from licensed dealers and something like 40% of gun purchases are conducted privately.17 That means a terrorist, a diagnosed psychopath, a fugitive from the law, an acutely depressed person who wants to kill himself today, someone who just completed 30 years in prison for murder, rape, kidnapping, or whatever … any of these people can go to a gun show and purchase a gun—or buy one online from a private seller. No wonder ISIS, the infamous terrorist group, recommended the U.S. as the place to get guns!18 Sandy: Probably not our strongest bragging point. Jan: Then there’s the weapons you can buy legally. Not only ordinary long guns and handguns, but also military-style assault weapons with high-capacity ammunition magazines—which have been used, with scary effectiveness, in a bunch of mass shootings.19 As if such firepower were needed for hunting or home defense. Sandy: I agree that that’s crazy. Jan: Plus, licensed gun dealers in the U.S.—a small fraction of which apparently supply an outsized number of trafficked weapons20 —face almost no accountability due to your strange laws Jan:

17 See Matthew Miller, Lisa Hepburn, and Deborah Azrael, “Firearm Acquisition without Background Checks,” Annals of Internal Medicine 166 (2017): 233–239. 18 Tessa Berenson, “ISIS Tells Its Followers It’s ‘Easy’ to Get Firearms from U.S. Gun Shows,” Time (May 5, 2017; https://time.com/4768837/isis-gun-shows-firearms-america/). 19 See, e.g., Alberto Cuadra, Kennedy Elliott, Todd Lindeman, et al., “Weapons and Mass Shootings,” Washington Post ( June 1, 2014): A14 and Jonathan Franklin, “Where AR-15-Style Rifles Fit in America’s Tragic History of Mass Shootings,” NPR (May 26, 2022; https://www.npr.org/2022/05/26/1101274322/ uvalde-ar-15-style-rifle-history-shooter-mass-shooting). 20 See, e.g., Sari Horwitz and James Grimaldi, “Ohio Store Leads the U.S. in Guns Linked to Crimes,” Washington Post (December 13, 2010): A11.

10  Is American Gun Policy a Moral Issue Meriting Serious Attention?

Pat: Jan:

that severely limit how often dealers can be inspected and don’t make them keep inventories, which, of course, makes it easier to sell guns illegally.21 OK, then there’s the lack of required safety features. Here we are, in a country with loads of regulations about the safety features of cars, child seats, bags, toys—including toy guns!—and any number of other products—which are not designed to inflict harm—but there are no required safety features on guns, which are designed to kill people! No regulations that prevent guns from firing when dropped or to keep young children from shooting them. Then there’s the fact that gun manufacturers are almost entirely immune from civil lawsuits filed over crimes committed with their guns.22 Why should only the gun industry have such immunity? You sure learned a lot working with that professor! Do you remember any other big-picture points? I do. For example, amazingly, American federal law doesn’t require safe storage of guns, even in households with children. And, if that weren’t bad enough, consider that ATF,23 which is supposed to do criminal investigations, regulate firearms, and help other law enforcement agencies, has been intentionally crippled by your Congress so that it can’t do its job properly. For example, it can’t even consolidate gun dealer records in a computer database—which is insane! ATF isn’t allowed to publicly disclose information based on traces of gun crimes, which means the public can’t know which corrupt dealers are supplying gun traffickers and felons.24 All of which seems very pro-criminal and anti-law enforcement. So much for the gun lobby’s mantra: “There’s no need for new gun laws, we can just enforce those already on the books.” Those on the books are, by design, almost impossible to enforce.25

21 Ali Watkins, “Defy Gun Law, Face Wrist Slap from the A.T.F.,” New York Times ( June 4, 2018): A1. The Firearm Owners Protection Act of 1986 placed restrictions on federal inspections of gun dealers. 22 In 2005, the National Rifle Association scored a major legislative victory when President Bush signed the Protection of Lawful Commerce in Arms Act, which largely granted gun makers and dealers immunity from lawsuits. 23 The Bureau of Alcohol, Tobacco, Firearms, and Explosives. 24 About the challenges facing ATF, see Philip Cook and Kristin Goss, The Gun Debate: What Everyone Needs to Know (New York: Oxford University Press, 2014), pp. 115–117. 25 See Tal Kopan, “Why Even the Gun Laws that Exist Don’t Always Get Enforced,” CNN Politics ( January 9, 2016; https://www.cnn.com/2016/01/09/politics/obamaexecutive-orders-gun-control-enforcement-gap/index.html).

Is American Gun Policy a Moral Issue Meriting Serious Attention? 11

You’re really on a roll …. I don’t get that expression. Is it like rolling down a hill, picking up speed? Sandy: Yeah, maybe. Never thought about it. Jan: Continuing my roll: with lots of encouragement from the NRA 26 at least 30 of your states have enacted Stand Your Ground laws. These laws let people use deadly force in public as a first, rather than last, resort if they think they’re in danger of major bodily harm—even if the person they shoot poses no actual danger and even if the shooter went after the victim and started the conflict. 27 And I remember from my research that a recent study published in a good medical journal found that Stand Your Ground laws are associated with a big increase in homicide rates 28 while politicians who support them claim that they reduce crime! I could go on and on with examples but maybe this is enough. It just seems like the American gun situation is totally crazy: huge numbers of guns, extremely lax gun laws, including some that make enforcing other laws nearly impossible, and a large portion of the population who seem to treat guns as sacred and any limits on guns as verboten. 29 It’s as if you guys want to maximize gun ownership, gun crimes, gun accidents, gun suicides, and gun murders while minimizing accountability for gun makers, gun dealers, gun traffickers, and—let’s not forget—the politicians who enable them under the influence of your crazy successful gun lobby. 30 Phew! Sandy: Phew! Well, how do you do things on your side of the pond? Pat: Jan:

26 National Rifle Association. 27 For a critical discussion of these laws, see Firmin DeBrabander, Do Guns Make Us Free? (New Haven, CT: Yale University Press, 2015), pp. 75–88. For a defense, see Heidi Hurd, “Stand Your Ground,” in Christian Coons and Michael Weber, The Ethics of Self-Defense (New York: Oxford University Press, 2016): 256–273. 28 See Michelle Esposti, Douglas Wiebe, Antonio Gasparrini, and David Humphreys, “Analysis of ‘Stand Your Ground’ Self-Defense Laws and Statewide Rates of Homicides and Firearm Homicides,” JAMA Network Open 5 (2) (2022): e220077. doi:10.1001/ jamanetworkopen.2022.0077. 29 This is German for “forbidden” and is pronounced “fair-BOW-tin.” 30 About the nation’s leading gun organization, the National Rifle Association, see Sari Horwitz and James Grimaldi, “Focused NRA a Force in U.S. Politics,” Washington Post (December 15, 2010: A1, A10) and Ali Watkins, “How the N.R.A. Uses Its Influence to Hobble Federal Gun Regulators,” New York Times (February 23, 2018): A12.

12  Is American Gun Policy a Moral Issue Meriting Serious Attention?

Jan:

Pat: Jan: Pat:

Jan: Pat:

In Europe, we treat guns as highly dangerous products. Some countries ban, or nearly ban, private gun ownership. Some countries are more liberal about gun ownership—for example, Switzerland, which has a lot of guns but also very strict regulations and not so many gun deaths.31 In general, Europeans don’t think in terms of private citizens’ having a right to own guns. It’s more utilitarian and geared toward good outcomes for society.32 In a way, more communitarian than individualistic, if you know what I mean. And the results are good: we don’t have anything like the ongoing epidemic of gun violence that you Americans have. Just as we don’t emulate the way you guys handle health care—a big topic for another day—we don’t emulate your approach to guns. No offense. None taken, what you say is kind of refreshing, but … wait, what’s your name? Jan. Oh, and let me add: we do like your best universities and your space program … also, a lot of your movies! Good to know! Jan, I can see why Europeans would be satisfied with their approach to guns. There don’t seem to be many gun problems there. But what works on your side of the pond might not work, or be acceptable, here. Why not? Why can’t Americans get their policy act together and take gun violence seriously? We can, and should, take gun violence seriously. But the most defensible policies here might be different from those in a European country, or Canada, Australia, Japan, or wherever.33 Our histories are different. So are our cultures. And we have loads of guns—more guns than people, as you mentioned— already in private hands. It’s not as if everyone would be willing to hand them over, no matter what laws were passed. The Supreme Court’s interpretation of a constitutional right to own guns resonates with a lot of Americans. In other words, it’s not very helpful to look at the problem of our gun violence as

31 See Philip Alpers, Irene Pavasi, and Miles Lovell, “Switzerland—Gun Facts, Figures, and the Law,” Sydney School of Public Health, University of Sydney, GunPolicy.org (May 1, 2022; https://www.gunpolicy.org/firearms/region/switzerland; accessed May 27, 2022). 32 See Vincent Müller, “Gun Control: A European Perspective,” Essays in Philosophy 16 (2015): 247–261. 33 For a compact comparison of U.S. gun policies and those of ten other nations, see Cook and Goss, The Gun Debate, pp. 118–120.

Is American Gun Policy a Moral Issue Meriting Serious Attention? 13

if we were starting a new society from scratch. We’re working from a context: where we are today.34 Maybe, just maybe, the morally ideal approach to guns is pretty far from where we are today, but we have to keep in mind the massive number of guns in the U.S. and the fact that many Americans care deeply about them. Plus, a lot of Americans think they are only safe if they can own and carry firearms. Sandy: Fair points, Pat. Jan: Yes, fair points. At the same time, it might not hurt to know about how some other developed countries have responded to gun violence with significant restrictions. Pat: I’m intrigued. Always good to have a more international perspective. Do you have some examples in mind? Jan: I do. These also came up in the research I did last summer. One example involves the United Kingdom, where gun homicide is rare. 35 In 1996 a man walked into an elementary school in central Scotland with four guns, two of them semi-automatic, and hundreds of rounds of ammunition, all of which he bought legally. When the smoke settled, so to speak, the man had killed one teacher and 16 young children; 13 other people were injured. Public outrage led to a campaign against legal ownership of these weapons and, within two years, the U.K. had banned most private ownership of handguns. Since then there haven’t been any mass shootings with a handgun and the number of gun fatalities per year is extremely low. This case really offers a contrast to your country, in which mass killings occur frequently but lead only to discussion and hand-wringing rather than to new regulations aimed at public safety. Pat: I’m not in support of banning handguns but I am impressed by how decisively the U.K. acted in response to the tragedy you described. What other examples do you have, Jan?

34 For a helpful discussion that locates the American gun debate in historical and cultural context, see Hugh LaFollette, In Defense of Gun Control (New York: Oxford University Press, 2018), pp. 8–20. 35 See Michael North, “Gun Control in Great Britain after the Dunblane Shootings,” in Daniel Webster and Jon Vernick (eds.), Reducing Gun Violence in America (Baltimore: Johns Hopkins University Press, 2013), chapter 14; Ari Shapiro, Patrick Jarenwattananon, and Manuela Restrepo, “In Britain, It Took Just One School Shooting to Pass Major Gun Control,” NRP ( June 1, 2022; https://www.npr.org/2022/06/01/1102239642/ school-shooting-dunblane-massacre-uvalde-texas-gun-control).

14  Is American Gun Policy a Moral Issue Meriting Serious Attention?

Another well-known example involves Australia.36 In 1996, not long after the massacre in Scotland, a disturbed young man in Tasmania went on a shooting rampage with assault weapons that resulted in 35 fatalities and 19 serious injuries. These weapons were legal in Tasmania but banned in most other Australian states. The Prime Minister proposed strict uniform gun laws and within two weeks new legislation was agreed to. Automatic and semi-automatic weapons were banned and—get this!—private ownership of handguns was so severely limited that personal protection did not qualify as grounds for having a handgun. Another major component of the Australian reaction to its tragedy was a highly successful buyback program: owners of now illegal firearms had one year to surrender them for compensation—after which continued possession was a serious crime. Returned firearms were melted down. Sandy: It seems basically impossible to imagine something like that—I mean, the response to the tragedy, not the tragedy itself—­ happening in the U.S. Jan: You’re right. By the way, Australia’s neighbor, New Zealand, also reacted decisively after a massacre. In 2019 a lone gunman killed 50-plus people in a couple of mosques in Christchurch, after which New Zealand came up with a semiautomatic weapons ban and a very successful buyback program.37 Pat: Interesting. I happen to know Canada provides another example …. 38 Sandy: Hey, look, I have to get to Econ. The examples we’ve heard already have been helpful to get more of an international perspective. Do you want to meet here around the same time next week? I’d like to take on the ethical questions we raised. Maybe we could focus on the social consequences of different approaches to gun control—the big picture—and leave individual rights for later. We might even read up on the topic before we meet. There’s probably a ton of articles online. Jan:

36 For a helpful discussion, see Rebecca Peters, “Rational Firearm Regulation: Evidencebased Gun Laws in Australia,” in Webster and Vernick, Reducing Gun Violence in America, chapter 15. 37 See Steve Almasy, “New Zealand Collects about 56,000 Guns in Buyback Program after Christchurch Massacre,” CNN (December 21, 2019; https://www.cnn.com/2019/12/21/ asia/new-zealand-gun-buyback-intl/index.html). 38 This example will be discussed in a later dialogue.

Is American Gun Policy a Moral Issue Meriting Serious Attention? 15

Pat: Jan:

Pat:

Sounds great, although for me moral rights are part of the big picture. But, sure, we can focus on social consequences next time. Want to join us, Jan? I’ll let you two Yanks work it out [winks]. I’ll be starting a new work-study position for extra spending money. Plus I have a Bio midterm coming up. Have fun, though. Hope to bump into you again. Sounds good. See you next week, Sandy. Don’t forget!

Dialogue 2

Does a Focus on Social Consequences Support Substantial Gun Control?

Setting: Same coffee shop, one week later. Pat is reading an article online, as a tall latte cools, when Sandy arrives with a blueberry muffin in hand. Sandy: You look so scholarly! Pat: Yeah, I got here early so I was reading up on our topic. You want to launch the discussion? Sandy: Sure. [Pulls out a couple of folded pages of notes.] Going retro here.1 Pat: Are those notes about the social consequences of how we deal with guns in America? Sandy: You mean, in the U.S. The Americas include all of North and South America. Pat: Yeah, yeah. You elite east-coasters with your politically correct language policing! [Smiles.] Ever notice that everyone uses “American” as an adjective for our country? No one says “U.S.-ian.” So what’s wrong with referring to “America”? Anyway, are your notes about the social consequences of how we handle guns here? Sandy: Yep. OK, so this is how things look to me. First, as we talked about last time, the U.S. has an enormous number of firearms in private hands—more guns than people in the country right now. It’s worth keeping in mind how much of an outlier we are in terms of the quantity of guns. Second, as we also discussed, the U.S. has extremely lax gun regulations in terms of who can buy guns and how easily, what kinds of guns they can get, no safe storage requirements, and so on.

1 For the possible benefit of older readers: Sandy is talking about having notes on paper rather than, say, an electronic document on a laptop, iPad, or smart phone.

DOI: 10.4324/9781003105404-2

Does Focus on Social Consequences Support Substantial Gun Control? 17

But that’s just at the federal level. Some states have stricter laws. For example, California, Maryland, Connecticut, and some others require safety training or passing an exam in order to buy a gun. Sandy: Yeah, helpful reminder. Anyway, another part of this laxity theme is that ATF is extremely understaffed and hamstrung in its ability to investigate gun crimes while gun sellers and gun makers face very little accountability for their practices and products. The third part of the picture I wanted to remind us of, which we discussed last time, is that the U.S. has an outsize amount of gun violence. Last year there were more than 45,000 gun deaths, which is higher than the number of automobile fatalities.2 So here’s how it fits together, as I see it: Tons of guns—now that’s a catchy rhyme!—plus lax regulation, like we have in the U.S., means a huge level of gun violence. Killers can get their hands on guns easily and use them to kill and, not surprisingly, they do so more often here than in other high-income countries.3 Pat: Of course, countries are different. It’s not easy to compare them. I get that you’re limiting the point to high-income countries, but, still, cultures differ a lot. Maybe some aspects of American culture contribute to our high number of gun fatalities. Maybe American culture is more violent, as you can see in a lot of our blockbuster movies and video games; or maybe, for some reason, we have higher levels of mental illness. More depression could mean more suicides. More psychosis or other mental illnesses might lead to more murders or homicides. Sandy: You’re right that cultural differences can make a difference. But I’m skeptical that they can account for the really big gap between our murder rates and other countries’ rates. Set aside suicide for the moment. As we noted last time, maybe as much as two thirds of our gun deaths in a typical year are suicides.4 Pat:

2 References supporting the three points from Dialogue 1 that Sandy has summarized appear in that dialogue. 3 For a summary of studies investigating the association of gun availability and violent death, see Matthew Miller, Deborah Azrael, and David Hemenway, “Firearms and Violent Deaths in the United States,” in Daniel Webster and Jon Vernick (eds.), Reducing Gun Violence in America (Baltimore, MD: Johns Hopkins University Press, 2013): 3–20, at 8–11. 4 In 2020, however, less than 60% of gun homicides in the U.S. were suicides and more than 40% were homicides (U.S. Centers for Disease Control and Prevention, https:// www.cdc.gov/violenceprevention/firearms/fastfact.html; accessed September 4, 2022).

18  Does Focus on Social Consequences Support Substantial Gun Control?

Pat:

But, for those of us who think that competent adults have a right to end their own lives, at least some of those deaths involve people exercising their rights. Maybe we can pick up the topic of suicide later. Let’s just look at homicide for now. I took some notes on a 2019 article that analyzed numbers from 2015.5 Using data from the World Health Organization, the article showed death rates—per 100,000 people—in the form of homicides, suicides, and accidental gun deaths—of 29 countries that qualify as high-income. This group includes not just countries we might typically think of—like Canada, Japan, Australia, and countries in Western Europe—but also places like Chile, Slovenia, South Korea, and Estonia. So we’re talking about a lot of data involving a lot of countries. Here’s what grabs my attention: the U.S. homicide rate, per 100,000 people, was eight times the average of the other countries. Eight times! Now, if it were just twice as high, I might take seriously the idea that a more violent culture here, or some other distinctive cultural factor, maybe even mental illness issues, could explain it. But eight times the average rate of all those other countries—which include some that, quite frankly, I didn’t even know were considered high-income—is a huge difference! The American rate was 5.6 homicides out of 100,000 people in 2015 while the average across the other countries was 0.7. This disparity was driven by a gun homicide rate, 4.1 per 100,000 people, that was nearly 25 times the rate for the other countries, about 0.16 for that same population size. By the way, the country with the second highest gun homicide rate was Chile, with a rate of 1.9, less than half of our rate of 4.1. When you consider how many countries were taken into account and you look at those differences in homicide rates, you’ve got to conclude that we are doing something seriously wrong here—something concerning the number of guns available to would-be killers and our lax gun regulations and maybe the way they’re enforced or, rather, not enforced. Those differences in homicide rates are pretty mind-blowing. Are you sure the numbers are real? I’ve gotten some tough

5 Erin Grinshteyn and David Hemenway, “Violent Death Rates in the US Compared to Those of the Other High-Income Countries, 2015,” Preventive Medicine 123 (2019): 20–26.

Does Focus on Social Consequences Support Substantial Gun Control? 19

feedback from professors on research papers and have definitely learned that you can’t trust every source you access online. Sandy: That’s right, but I am confident in the finding. A little further digging showed that the journal it was published in is respected, and so are the coauthors. Also, earlier studies seem similar to this one in suggesting massive differences in homicide rates between the U.S. and more or less comparable countries.6 Pat: OK, it does look like tons of guns—I do like your rhyme!— plus lax regulations, like we have in the U.S., correlates with more murders … but wait a minute. What about race? Sandy: What do you mean? Pat: Well, my research gave me the sense that there is something going on in the U.S. with race relations that is an important part of the gun violence picture. Sandy: OK, that’s an interesting idea. Go on. Pat: Well, clearly, the U.S. has a massive amount of gun violence. But the problem isn’t … evenly distributed. Homicides are mostly concentrated in urban areas with high minority populations. Cities like Chicago, Baltimore, L.A., New York, Philadelphia, and Detroit. Let me look up my notes. [Types on laptop for a few seconds.] Here. According to the Brady Campaign, the U.S. homicide rate for Black men is 30.7 out of 100,000 people while for White men it is much lower, 2.4.7 The rate for Black men is almost 13 times as high as the rate for White men! And we know that most homicides are committed with guns. Looking at another study now … the reduction in life expectancy due to

6 See, e.g., Martin Killias, “International Correlations between Gun Ownership and Rates of Homicide and Suicide,” Canadian Medical Association Journal 148 (1993): 1721–1725; Centers for Disease Control and Prevention, “Rates of Homicide, Suicide, and Firearm-Related Death among Children—26 Industrialized Countries,” Morbidity and Mortality Weekly Report 46 (February 7, 1997): 101–105; David Hemenway and Matthew Miller, “Firearm Availability and Homicide Rates across 26 High-Income Countries,” Journal of Trauma: Injury, Infection & Critical Care 49 (2000): 985–988; and the chart presented in Jonathan Masters, “How Do U.S. Gun Laws Compare to Other Countries?” PBS Newshour ( June 13, 2016; https://www.pbs.org/newshour/nation/ how-do-u-s-gun-laws-compare-to-other-countries). 7 Brady United Against Gun Violence, “Crime Guns in Impacted Communities” (https:// www.bradyunited.org/reports/crime-guns-in-impacted-communities; accessed August 11, 2021). This report states that the figures are five-year averages derived from CDC data available for the years 2012–2016.

20  Does Focus on Social Consequences Support Substantial Gun Control?

firearm assault was found to be 3.4 years for Black Americans but just a half year for White Americans,8 so about seven times as much life expectancy loss for Blacks. And this factoid blows my mind: until a Black male in the U.S. reaches his mid-40s, his most likely cause of death is homicide!9 Sandy: That is incredible. But wait: you cited the Brady Campaign for the comparison between Black and White men’s homicide rates. Brady is a gun control group. Since I generally favor gun control, I tend to trust groups like Brady. Still, they might spin statistics a little, or cherry-pick, in order to nudge readers in the direction of accepting more gun regulations. Pat: That’s definitely possible, which is why I followed up with some of my own research. The Brady numbers represented a five-year average ending in 2016. So I looked for recent data from CDC.10 And I looked up U.S. gun homicides in particular. What I found is that, in 2019, the gun homicide rate for Black males was 38.4 out of 100,000 people whereas for White males it was 2.3. That’s almost 17 times as many for the Black males! And looking at men and women together, I found that in 2019 the rate of gun homicides for Black Americans was 20.5 per 100,000 people while it was just 1.6 per 100,000 people in the White American population—so almost 13 times as high for Blacks. Sandy: Unreal. And the picture you just shared lines up with something I noticed in the article I mentioned earlier, the one that compared homicide rates across different countries.11 [Shuffles notes.] Here it is. While White people in the U.S. have a much lower gun homicide rate per population size than non-White people in the U.S., the White U.S. group still has a gun homicide rate that’s 12 times the average of people—of all races—in

  8 Bindu Kalesan, Mrithyunjay Vyliparambil, Yi Zuo, et al., “Cross-Sectional Study of Loss of Life Expectancy at Different Ages Related to Firearm Deaths among Black and White Americans,” BMJ Evidence-Based Medicine 24 (2019): 55–58.   9 See Centers for Disease Control and Prevention, “Leading Causes of Death – Males – Non-Hispanic Black – United States, 2018” (https://www.cdc.gov/healthequity/lcod/ men/2018/nonhispanic-black/index.htm#age-group). 10 Centers for Disease Control and Prevention, “Deaths: Final Data for 2019,” National Vital Statistics Reports 70 (8) ( July 26, 2021; https://www.cdc.gov/nchs/data/nvsr/ nvsr70/nvsr70-08-508.pdf ), Table 9. 11 See Grinshteyn and Hemenway, “Violent Death Rates in the US Compared to Those of the Other High-Income Countries, 2015.” Sandy’s next point—about White Americans’ homicide rate in comparison with those found in other countries—appears on page 24 of this article.

Does Focus on Social Consequences Support Substantial Gun Control? 21

the other countries. So what do you make of these racial disparities of homicide rates? Pat: I’m thinking, maybe the idea that high gun rates plus loose regulation generates high levels of gun violence in this country is a little oversimplified. Maybe another important factor is something about racism and unequal opportunity.12 Sandy: Sounds like a definite possibility. Go on. Pat: Well, Blacks in the U.S. have always faced discrimination of various kinds. Sure, there has been a lot of progress, but the Black Lives Matter movement refuted any optimistic thought that the U.S. entered a post-racial era once Barack Obama was elected President. Bottom line: generations of unequal economic and educational opportunity—I’m talking about discrimination in hiring, housing, getting loans, admissions, not to mention the law enforcement aspect BLM has focused on—all this and more has left too many Black Americans with less-than-equal opportunities. Guns and crime proliferate in dense, economically blighted urban areas. Blacks are victimized disproportionately by gun violence, in most cases with other Blacks as the shooters. It’s also true, by the way, that among Whites, gun homicides tend to be intra-racial—that is, White people killing other Whites. The important point is that we can’t deny the persistence of a great deal of racial discrimination in the U.S. And I don’t mean just against Blacks, but also against other groups, especially Hispanics and Native Americans, but Black Americans have been especially affected by gun violence. It’s pretty obvious that, in the U.S., racism has contributed to conditions that foster gun violence affecting Blacks. And, at the same time, it makes sense that gun violence in predominantly Black neighborhoods will further diminish economic opportunities by making businesses more wary about locating there, by lowering real estate values, by motivating wealthier people to move away, decreasing support for local schools, and so on.13 Less economic opportunities might

12 Thanks to Allen Buchanan for pushing me to consider this factor. 13 For a persuasive discussion of this point, see Brady United Against Gun Violence, “Crime Guns in Impacted Communities,” pp. 5–6. This work cites Center on Media, Crime & Justice at John Jay College, “Gun Violence Kills Business Growth and Jobs: Report” ( June 1, 2017; https://thecrimereport.org/2017/06/01/gun-violence-killsbusiness-growth-and-jobs-report/) and Philip Cook and Jens Ludwig, Gun Violence: The Real Costs (New York: Oxford University Press, 2000).

22  Does Focus on Social Consequences Support Substantial Gun Control?

then increase gun crime, especially when it’s so easy to get guns. It looks like a vicious cycle. Sandy: That makes a lot of sense. Pat: A Black friend from my dorm told me that her parents grew up in a part of Baltimore where there’s a lot of gun violence. Her family lost two or three neighbors to incidental gun violence—I mean, they weren’t intended victims, and weren’t involved in crime, but got killed by stray bullets just by being in the vicinity of out-of-control shootings. My friend said that most of her parents’ friends and church community wanted strict gun regulations and felt frustrated that rural Whites, who face little gun violence, got their way politically in opposing serious gun control. It made me feel strange because I’m from a family that generally favors gun rights and lives far from any major city. She definitely got my attention. Sandy: I bet. So, back to the main point, maybe the gun violence problem in the U.S. is driven not only by the outsize number of guns and minimal gun control—but also by unequal access among races to economic opportunity. That does seem plausible. And, to the extent that countries like Japan and Canada and France have much less of a problem along those lines, the differences in our homicide rates and theirs might be partly explained by our especially acute problems of social justice along racial lines. Pat: We’ve agreed on a lot of points. But our agreement that there’s a huge gun violence problem in the U.S. has been based on international comparisons. I find the arguments pretty persuasive but what about evidence within our country—I mean, about how different states deal with gun control and how they do in terms of gun violence? Did you research that area? Sandy: Yeah, I did. [Shuffles through notes.] One study found that states with high gun ownership rates—per a given population size—and weak gun laws lead the nation in gun deaths.14 That makes sense to me, given what we’ve found so far. Anyway, to elaborate, the study defined weak gun laws as state laws that add little or nothing to federal restrictions on guns and are permissive about carrying guns in public. And, to give two examples of states, in Mississippi about 54% of households had

14 Violence Policy Center, “States with Higher Gun Ownership and Weak Gun Laws Lead Nation in Gun Deaths” (February 7, 2013; www.vpc.org/press/1302gundeath.htm).

Does Focus on Social Consequences Support Substantial Gun Control? 23

guns and its gun death rate was 19 out of 100,000 people; by comparison, in New Jersey about 11% of households had guns and its gun death rate was just under 5 out of 100,000 people. Pat: Pretty stark differences. But there might be other factors that play into the different gun death rates. For example, people in New Jersey might be, on average, wealthier and a little more educated than people in Mississippi, which might make the New Jersey folks less prone to gun violence. Sandy: Fair. Pat: And, as we just discussed, it’s plausible that a really thorough accounting of factors contributing to gun violence would take into account the extent to which Blacks and other historically disadvantaged groups had diminished economic and educational opportunities. Higher levels of racial inequity and injustice might exacerbate gun violence. Sandy: “Exacerbate”—nice word! You studying for the GRE15? Pat: [Laughs.] I don’t even know how to spell the word. Sandy: I have more notes about differences between states. Let’s see … OK, an article reports that, after Connecticut enacted a law requiring handgun buyers to get a permit by undergoing a background check in person, its gun homicides went down 40% over the next decade, which was 1995 to 2005.16 Pat: Interesting, but I’m not too impressed. Sandy: Why not? Pat: Maybe most states saw a reduction in homicides over that decade. It’s more meaningful if we can compare states to each other. Sandy: Yeah, good point. Well, the same article focuses on Missouri and makes some comparisons. Before Missouri repealed a requirement for comprehensive background checks and purchase permits, from 1999 to 2006, the state’s gun homicide rate was 13.8% higher than the national rate, the average among all states. Pretty bad, right? Well, after the repeal of those gun control measures, from 2008 to 2014, it was 47% higher than the national rate—really bad! Pat: That is more suggestive than the isolated point about Connecticut. Still, what if some researchers looked at numbers for all the states across a bunch of different years and then

15 Graduate Record Exam, which is often used for admission to graduate schools. 16 Sabrina Tavernise, “Gun Killings Rise as Controls Ease across Missouri,” New York Times (December 22, 2015): A1.

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cherry-picked a state like Missouri, where the change in gun death rates looked impressive across a span of years, while ignoring other states—say, states that also became more permissive with their gun laws—where there was no noteworthy change? Sandy: Fair point again. It’s hard to do this sort of social science and statistical analysis rigorously! I am somewhat impressed, though, by the study that looked at all 50 states in terms of their gun ownership rates, strength or laxity of gun laws, and gun death rates. There might be other factors that play a role but that study was pretty comprehensive.17 Pat: Agree. Got anything else? Sandy: Yeah. There was a more recent study that looked at the effects of comprehensive background checks and buyer licensing laws. So they looked at data from 1985 to 2017 for … I’ll just quote from the abstract … “Maryland and Pennsylvania, which implemented point-of-sale comprehensive background check (CBC) laws for handgun purchases; Connecticut, which adopted a handgun purchaser licensing law; and Missouri [Missouri again!], which repealed a similar law.”18 What they found from these states as models was that licensing laws together with comprehensive background check laws were consistently associated with lower gun homicide and suicide rates …. Pat: Can’t say I’m surprised. Those laws will keep some people who shouldn’t have guns from buying them. Sandy: Right, but here’s the weird thing: the comprehensive background check laws by themselves—that is, without the licensing requirements—were not clearly associated with lower death rates. Weird. Common sense would suggest that requiring background checks on everyone—including those who are buying at gun shows or from private dealers—would weed out some people who shouldn’t have guns, which should lower death rates at least a little. Go figure. Pat: Go figure. Sandy: On the other hand, another article that was published a few years earlier but was much more comprehensive—in fact, it 17 See also David Hamilton and Augustine Kposowa, “Firearms and Violent Death in the United States: Gun Ownership, Gun Control, and Mortality Rates in 16 States, 20052009,” British Journal of Education, Society & Behavioural Science 7 (2) (2015): 84–98. 18 Alexander McCourt, Cassandra Crifasi, Elizabeth Stuart, et al., “Purchaser Licensing, Point-of-Sale Background Check Laws, and Firearm Homicide and Suicide in 4 US States, 1985-2017,” AJPH 110 (2020): 1546–1552.

Does Focus on Social Consequences Support Substantial Gun Control? 25

was a systematic review of 34 articles that examined the relationship between gun laws and gun homicides—seemed to confirm common sense on this point.19 Four of the articles it reviewed focused exclusively on background checks and all found that more inclusive background checks correlated with lower rates of gun homicide. Meanwhile, the systematic review found strong evidence that states requiring a permit to purchase guns had lower firearm rates than states that didn’t require a permit.20 That strikes me as intuitive. But another result I found counterintuitive though you might not: the systematic review did not find that laws restricting the carrying of guns in public places correlated with lower homicide rates.21 Pat: I’m not surprised. Maybe carrying guns serves as a deterrent to violent crime.22 OK, do you have anything else that sheds light on the social consequences of American-style tons of guns and weak gun control? Sandy: Yes, I have more. A bunch of research suggests something very important: that households with guns are less safe than households with no guns. We’re not talking about effects on the whole society here. Just whether, on average, it makes sense to buy a gun with the idea of making yourself and any other household members safer. Pat: Well, that’s exactly why many people get handguns. And I’m skeptical. If someone breaks into your house when you’re home, you’re at their mercy if they’re armed and you’re not. Whereas, if you have a gun at hand, you can make it clear real quick that it’s not in their interest to proceed! Sandy: But, if they’re armed and they see you’re also armed, they might get scared and shoot. If they’re not scared and they just 19 Lois Lee, Eric Fleegler, Caitlin Farrell, et al., “Firearm Laws and Firearm Homicides: A Systematic Review,” JAMA Internal Medicine 177 (2017): 106–119. 20 Ibid, p. 116. 21 Ibid, p. 117. 22 This is what John Lott believes, as argued in his More Guns, Less Crime, 3rd ed. (Chicago, IL: University of Chicago Press, 2010). For a contrary view, see David DeGrazia, “The Case in Favor,” in David DeGrazia and Lester Hunt, Debating Gun Control (New York: Oxford University Press, 2016), pp. 201–205. For an example of accusations that Lott is untrustworthy, see Richard Morin, “Scholar Invents Fan to Answer His Critics,” The Washington Post (February 1, 2003; available at https://www.washingtonpost.com/archive/lifestyle/2003/02/01/scholar-invents-fan-to-answer-his-critics/ f3ae3f46-68d6-4eee-a65e-1775d45e2133/).

26  Does Focus on Social Consequences Support Substantial Gun Control?

want to steal some stuff, they might be able to do so without causing you physical harm. Pat: Or they might steal stuff and then kill you so you won’t be able to tell the police. Or, worse, they could commit rape and then kill the victim and any other household members. I’d much rather have a gun if some would-be rapist breaks in. Sandy: I’m not much of a gun enthusiast but I feel similarly about the rapist scenario. But, look, we’re talking about some very specific possibilities. And most people who have guns might never face an intruder.23 We know that some people who have guns kill themselves or family members. Or someone dies by an accidental firing. How do these events affect overall safety? I don’t think we can just speculate and run thought-experiments about whether we’d want a gun if such-and-such happened. Our main theme today is the overall consequences of the current American approach of tons of guns and weak gun regulations. We’ve already considered the broader society, both our country in comparison to others and, to some extent, American states in comparison with each other. Now we’re narrowing the scope slightly by just focusing on the consequences within a household of having guns rather than not having any. Pat: Cool. What are you driving at? Sandy: We need to consider real evidence, careful studies—you know, done by social scientists. Pat: I agree. I take it you’ve found some evidence that impresses you. Sandy: I have. [Looks through several printed pages and finds the salient one.] We want to know whether, as many gun-owners believe, having at least one gun in the home makes you and any other household members safer, overall, than not having any guns in the home. Or rather we’re asking that question under the assumption that restrictions are more or less like what they are now in the U.S.—easy to get guns, no safe storage requirements, etc. Pat: And you think the answer to that big question is No. Sandy: I do. Despite what gun owners themselves might believe, the evidence strongly suggests that getting a gun to make

23 David Hemenway and Sara Solnick argue that self-defense gun uses, whether at home or outside the home, are rare (“The Epidemiology of Self-Defense Gun Use: Evidence from the National Crime Victimization Surveys 2007-2011,” Preventive Medicine 79 [2015]: 22–27). But the frequency of such events is contested.

Does Focus on Social Consequences Support Substantial Gun Control? 27

yourself—and any other household members—safer at home is self-defeating.24 Or I should say, it’s self-defeating on average, across the American population. We can’t assume that no one’s household is safer with guns, because people are different in their storage and use of guns, how impulsive they are, whether they have drug or alcohol problems, whether they’re depressed, and so on. But, on average, the household—under an American-style minimal gun control regime—is less safe if there’s at least one gun in the house. Pat: This is definitely not what I would guess if I just thought about it. Sandy: That might be because you’re thinking of cases where there’s an intruder rather than the less interesting cases of a house having guns for decades without any break-ins. Or you might be thinking of a sensible person, like you, who would be careful with gun storage, doesn’t live in a high-crime area, doesn’t have substance abuse issues, blah, blah. Pat: Well, yes, I am thinking along the lines. And we do have a handgun back home. We’re very careful with it. As I mentioned last week, I’m from a military family and we respect guns—and take gun safety seriously. I do know, of course, that people are different …. Sandy: Right, so let’s look at the evidence. Here’s a summary of what I found. [Looks at a page.] First, and this isn’t too surprising, but there’s a pile of evidence that having a gun at home increases the chances of dying by suicide.25 Lots of suicides are impulsive, reflecting current stressors—like being dumped by a partner or being fired and feeling hopeless—unlike those

24 Nicholas Dixon appeals to overall consequences in arguing against gun rights in “Handguns, Philosophers, and the Right to Self-Defense,” International Journal of Applied Philosophy 25 (2011): 151–170. For a rebuttal, see Michael Huemer, “Gun Rights as Deontic Constraints,” Social Theory and Practice 45 (2019): 601–612. 25 See, e.g., Matthew Miller and David Hemenway, “Guns and Suicide in the United States,” New England Journal of Medicine 359 (2008): 989–999; Michael Siegel and Emily Rothman, “Firearm Ownership and Suicide Rates among US Men and Women, 1981-2013,” American Journal of Public Health 106 (2016): 1316–1322; David Vitt, Alexander McQuoid, Charles Moore, and Stephen Sawyer, “Trigger Warning: The Causal Impact of Gun Ownership on Suicide,” Applied Economics 50 (2018): 5747–5765; and David Studdert, Yifan Zhang, Sonja Swanson, et al., “Handgun Ownership and Suicide in California,” New England Journal of Medicine 382 (2020): 2220–2229. For a meta-analysis of many studies, see Andrew Anglemeyer, Tara Horvath, and George Rutherford, “The Availability of Firearms and Risk for Suicide and Homicide Victimization among Household Members: A Systematic Review and Meta-Analysis,” Annals of Internal Medicine 160 (2) (2014): 101–113.

28  Does Focus on Social Consequences Support Substantial Gun Control?

suicides that reflect an enduring, carefully considered preference to die. Some suicides are committed by desolate children or adolescents who don’t grasp the prospects for feeling better and having a satisfying life. “Desolate”—my turn to use a fancy word! Sometimes people who kill themselves are depressed but could feel a lot better with appropriate medication and therapy. At the same time, as we agreed earlier, we shouldn’t paternalistically assume that all suicides are irrational or self-defeating; some people, at least some competent adults, really do believe that ending their lives is better than carrying on, and it would be over the top to assume they’re always wrong about that. The kind of suicide I’m most concerned about is the type made by someone who would have chosen differently if they were prevented from acting impulsively and had a chance to view their options carefully and with a clear head. That sort of suicide seems non-autonomous. Pat: But we don’t know how common that is. We don’t know what proportion of all those suicides should count as tragic—except that I’d be pretty inclined to count any suicide by a minor as tragic and worth preventing. We should definitely do what we can to keep guns out of the hands of minors. Sandy: I agree with everything you said. One thing we do know is that minors in homes with guns are more likely to die by suicide than minors who live in homes without guns.26 Anyway, second big-picture point: the risk of death by homicide is much higher in homes with guns than in homes that have no guns.27 Pat: That’s depressing for those of us who are kind of pro-gun. But, again, these are only averages. No doubt some families have tragic deaths because parents are really careless with guns. And some people are able to get guns when they shouldn’t be able to because they get them online or at gun shows, where there’s

26 Anita Knopov, Rebecca Sherman, Julia Raifman, et al., “Household Gun Ownership and Youth Suicide Rates at the State Level, 2005-2015,” American Journal of Preventive Medicine 56 (2019): 335–342. 27 See, e.g., Matthew Miller, Deborah Azrael, and David Hemenway, “Firearm Availability and Unintentional Firearm Deaths, Suicide, and Homicide among 5-14 Year Olds,” Journal of Trauma: Injury, Infection & Critical Care 52 (2002): 267–275; D. J. Wiebe, “Homicide and Suicide Risks Associated with Firearms in the Home: A National Case-Control Study,” Annals of Emergency Medicine 41 (2003): 771–782; and Anglemeyer, Horvath, and Rutherford, “The Availability of Firearms and Risk for Suicide and Homicide Victimization among Household Members: A Systematic Review and Meta-Analysis.”

Does Focus on Social Consequences Support Substantial Gun Control? 29

no requirement for background checks. And so on. But people are different. And it’s got to be true that, for some people, it is very safe to have a gun and they have gained protection against intruders because they have it and know how to use it. Sandy: That seems reasonable. The generalization that you are at higher risk of death by homicide if you live in a home with guns is a statistical average. No doubt for some individuals that’s just not the case. But who are these people? And what if people deceive themselves into thinking they’re safer with guns than without them? One article I came across found that gun owners who are confident that guns in the home make household members safer are much more likely than other gun owners to store their guns loaded and unlocked!28 That’s scary. Pat: And dumb. But what about people who have good reason to believe that they can keep and store guns safely and that this gives them an overall advantage? Like my family, I’d like to think. Don’t people like that have a right to protect themselves this way? Why should other people’s failure to keep guns safely take away their rights? Sandy: But who said they have any right to have guns? We’ll discuss the issue of gun rights later. Now we’re focusing on social consequences. Pat: True. Go on. Any more big-picture points about household safety? Sandy: Yes. Third point: in homes with domestic violence, the chances that the violence will prove lethal are much higher if guns are present.29 And fourth: the risk of accidental death is much higher in homes that have guns.30 Pat: Those generalizations don’t surprise me. And I wasn’t surprised about the higher risk of death by suicide in homes

28 Amanda Mauri, Julia Wolfson, Deborah Azrael, and Matthew Miller, “Firearm Storage Practices and Risk Perceptions,” American Journal of Preventive Medicine 57 (2019): 830–835. 29 See Jacquelyn Campbell, Daniel Webster, Jane Koziol-McLain, et al., “Risk Factors in Femicide in Abusive Relationships: Results from a Multisite Case Control Study,” American Journal of Public Health 93 (2003): 1089–1097. 30 See Matthew Miller and David Hemenway, “Firearm Availability and Unintentional Firearm Deaths,” Accident Analysis & Prevention 33 (2001): 477–484 and D. J. Wiebe, “Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality,” Accident Analysis & Prevention 35 (2003): 711–716.

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with guns. The homicide generalization is not something I expected, though. Sandy: That’s interesting because the point about more homicides seems intuitive to me. Maybe I’m just more suspicious about having guns around: more guns just seems to set up more deaths. Anyway, bringing the generalizations together, having guns at home—on average across American society—increases the chances of household members dying by gunshot.31 Pat: But those bad odds include suicides. Most gun deaths in this country are suicides. And, as we agreed, we don’t seem to have a way of distinguishing suicides that are reasonable or autonomous, if very sad, and suicides that are not and should be prevented if possible. Sandy: But we do know that minors are more likely to kill themselves if there are guns around—and I’m prepared to call every gun suicide by a child tragic. As for competent adults, we know that at least some of those suicides are tragic and might not have happened if there hadn’t been easy access to a gun. But set aside suicides for a moment. Because we also saw that, on average, one faces a higher chance of dying by homicide if there’s a gun in the house. And there’s a greater chance that someone will die by accident. Being murdered or dying by accident … there’s not much ambiguity there. Those are bad deaths we should try to prevent. And many people get guns so they can protect themselves. Well, if they have a greater chance of dying, on average, if they have a gun at home than if they don’t, then, again on average, the attempt to gain an edge in safety by having guns is self-defeating.32 Pat: I have to concede the point, assuming we’re just talking about averages and not individual cases. Sandy: And we’ve been talking, just now, about household safety. We also found, looking at the broader picture of a society, that lots of guns and lax gun control have worse overall consequences

31 For discussion, see Garen Wintemute, “Guns, Fear, the Constitution, and the Public’s Health,” New England Journal of Medicine 358 (2008): 1421–1424. 32 A distinct issue that Sandy and Pat do not discuss is whether gun possession tends to protect assault victims rather than increase their risks. The one study of which I am aware suggests that gun possession tends to be self-defeating in the event of an assault by increasing the odds of being shot by the assailant (Charles Branas, Therese Richmond, Dennis Culhane, et al., “Investigating the Link between Gun Possession and Gun Assault,” American Journal of Public Health 99 [2009]: 2034–2040).

Does Focus on Social Consequences Support Substantial Gun Control? 31

than … what? I guess, worse consequences than fewer guns and strong gun controls, assuming the regulations are sensible. Pat: We’ve also been talking about the quantity of guns and the controls on them as if they were two separate factors. But it makes sense that they go together. More gun control would, I assume, include things like screening out more people who shouldn’t have guns, and maybe limits on how many guns people can buy. It might also mean ATF and the police would have a better chance of confiscating guns from criminals and traffickers. All of which would mean fewer guns in circulation. Sandy: Excellent point! So … today we’ve reached agreement that the current American approach to guns has worse social consequences than some reasonable alternative that involves more gun control. So, if I’m remembering correctly from my ethics class, we can say that a utilitarian approach would favor more gun control than we currently have. Utilitarianism says the right act, or policy, is the one that maximizes utility— that is, produces the greatest possible balance of benefits, or good consequences, over harms, or bad consequences. 33 Or should I say expected utility since we can’t predict the future with perfect confidence? Anyway, a utilitarian would favor much more gun control than we have now in this country. That’s exactly what that European exchange student, Jan, said when we spoke last week. Pat: True. You know, the expected consequences, or results, of our policies are important. But I’m not a utilitarian. When I’m thinking about ethics, I’m more inclined to think in terms of people’s rights rather than the overall social consequences. Sandy: I have to take off, but let’s talk about moral rights next time. Can we agree at least that, if we’re focusing on overall social consequences, as a utilitarian would, there’s a strong case for ramping up gun control in the U.S.? Pat: I can accept that. There are a whole bunch of regulations and reforms that would be justified and seem commonsensical. The sorts of measures someone like Jan, from a European perspective, can’t believe we don’t already have here at the federal level. Things like universal background checks, safe storage or gun-locking requirements so kids can’t use their parents’

33 For a classic representative of this way of thinking about ethics, see John Stuart Mill, Utilitarianism, George Sher (ed.) (Indianapolis, IN: Hackett, 1979; first published 1861).

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guns, and reforms that allow ATF and law enforcement to deal effectively with licensed gun sellers as well as gun criminals. And people who buy guns should have to pass some kind of safety training. I mean, you can’t get a driver’s license without a lot of hours practicing driving, which obviously promotes safety, so why not require some training for anyone who wants to own guns? That all makes perfect sense. And, by the way, we don’t need to wait around for evidence for the effectiveness of such gun controls—some of these are so obvious that we should just proceed with them. But a lot of suggested gun regulations are not obvious and might violate the rights of gun owners. For example, limits on the numbers of guns you can buy or, even worse, requiring you to prove you have a special need for a gun in order to buy one. I think there is some sort of right to own guns so I want to explore the rights angle. Sandy: Great. Where do you want to take the discussion? Pat: I’m drawn to the idea that people have a moral right to defend themselves, and their family members, with an effective weapon. Plus the idea that, for a lot of people, the most effective weapon is a gun. I want to explore that. Sandy: OK, let’s do it. And let’s both do some online digging so we’ll be better informed than we would be if we were just thinking from our armchairs. Same time next week!

Dialogue 3

Does a Right to Self-Defense Support Gun Rights?

Setting: At the coffee shop that has become the students’ meeting place, Sandy is halfway finished with a large chocolate chip cookie when Pat arrives with a green tea in hand. Pat: Hey, Sandy! How’s it going? Sorry I’m a little late. Sandy: No worries. Tea today? Pat: Yeah, I’ve started to prefer green tea over coffee in the afternoon. Figured I might sleep better at night if I cut down on the caffeine. Sandy: I hear you. So where were we? … I think we agreed last time that, if we were to base gun policy just on social consequences, there’d be a really strong case in favor of beefing up gun control in the U.S. … Pat: We did. Sandy: … but we noted there was a lot more to talk about. Like about individuals’ rights. How do moral rights fit in? Your view is that we have not only legal rights but also moral rights to own guns, and that these rights might take priority over consideration of social consequences. Is that correct? If so, why don’t you get us going today? Pat: That’s right. I want to argue that people have a moral right to own guns for purposes of self-defense. But when I say “self-defense,” I really mean defense of oneself and/or others in the household, mainly anyone else who lives there but even any visitors who happen to be present at a time when someone is trying to break in or has already done so. I prefer just saying “self-defense” rather than a whole bunch of words that includes everything I mean. Sandy: Got it. It’s a convenient shorthand. Now tell me, how are you understanding the idea of a moral right? We might as well get DOI: 10.4324/9781003105404-3

34  Does a Right to Self-Defense Support Gun Rights?

clear on that so we don’t talk past each other with different ideas in mind. Pat: Yes, it turns out there are quite a few definitions of rights out there. But I think a good one for our purposes is that a moral right is [looks for a moment at notes] a justified moral claim that imposes an obligation on one or more other individuals, and ordinarily resists appeals to the common good as sufficient grounds for overriding the claim.1 The word “ordinarily” leaves room for occasional exceptions in which someone’s moral right could be overridden if the overall consequences of overriding it would be vastly better than the consequences of not overriding it. Sandy: For example …? Pat: For example, a right to life—I mean, in the negative sense of a right not to be killed—is a moral claim that imposes an obligation on others not to kill me, and this claim is weighty enough that in ordinary circumstances it could not be overridden just because ending my life would be in society’s overall interest—as if that would ever be true! And a moral right to gun ownership would be a justified moral claim to own one or more guns that imposes obligations on other people and the government not to prevent me from having them—and, ordinarily, this claim could not be overridden in the name of the common good, even if in certain extreme circumstances it could be overridden. Sandy: Nice definition and examples. And the basis of gun rights? Do you think it’s self-defense? Pat: I think the strongest argument for gun rights might be an appeal to self-defense. It seems only commonsensical that people have rights to defend themselves—and other innocent people, like parents having a right to defend their children. In fact, parents seem to have a duty to protect their children, which only makes sense if they have a right to do so. But let’s start with the simpler, commonsense idea that people have a right to defend themselves.

1 See David DeGrazia and Joseph Millum, A Theory of Bioethics (Cambridge, UK: Cambridge University Press, 2021), p. 36. Historically influential analyses of moral rights, or rights more generally, include those of John Stuart Mill, Utilitarianism, George Sher (ed.) (Indianapolis, IN: Hackett, 2002; first published 1861), p. 54; Joel Feinberg, “The Nature and Value of Rights,” Journal of Value Inquiry 4 (1970): 243–257; Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); and Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).

Does a Right to Self-Defense Support Gun Rights? 35

Sandy: Yeah, that does seem pretty commonsensical. But … maybe the idea isn’t as simple as it seems at first glance. Pat: What do you mean? Sandy: Well, I’ve been thinking about this since last week. A person’s right to defend himself or herself might be limited in important ways. In some contexts, I’m not even sure people have a moral right to defend themselves. Pat: That sounds slightly nuts to me. Tell me what you’re thinking here. Sandy: Well, consider kids at school. When I was in elementary school, there were rules against fighting. The school staff probably thought that, if one kid was picking on another, the adults could handle the situation—and that it was better that they handled it rather than let the kids duke it out. So, if someone started bullying me on the playground, I was supposed to call the teacher who was supervising recess rather than fight. And that was a pretty reasonable approach, it seems to me. Maybe I had a right to be defended but that didn’t mean I had a right to defend myself by fighting. Pat: But what if there wasn’t an adult supervisor around? Don’t you think you’d have a right to defend yourself in that case? Sandy: Yes, I do. And that fits with the idea that I had a right to be defended from physical threats at school. It’s just that, in the scenario you describe, I’d have to defend myself because I couldn’t rely on protection from the adults in charge. Consider another example.2 In prisons, I take it, prisoners are not allowed to have dangerous weapons such as guns or sharp knives. That seems like a good thing: prisoners might kill each other fairly often if they had these weapons. But they do have a right—at least a moral right, I’d claim—to have reasonable protection against attackers. I realize that many prisons are dangerous places and prisoners often get beaten up or sexually assaulted. But I’d argue that, if that happens due to negligence on the part of prison guards or whoever runs the place, the victims’ rights have been violated— not only by the assailants but also by whoever had the responsibility to provide prisoners with protection. So here, again, it seems that certain individuals do not have a right to self-defense because the defense in question is delegated to some other appropriate party. But … the way I’ve said it is not quite right.

2 Here I benefit from Jeff McMahan, “A Challenge to Gun Rights,” in David Edmonds (ed.), Philosophers Take on the World (Oxford, UK: Oxford University Press, 2016): 17–20.

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Pat: No? Sandy: No, let me try again. Prisoners and children, basically everyone who is capable of defending themselves in any way, have some sort of right to do so. For example, the young school child certainly has a right to put up her fists to ward off punches, even if she doesn’t have a right to counterattack because she’s supposed to notify an adult supervisor. And prisoners may defend themselves in some ways, using their fists and feet to block attacks. What I’m denying is that people necessarily have a right to use the most effective means of self-defense, if their defense is appropriately delegated to some other party. The most effective means to ward off a schoolyard bully might in some situations be a punch in his or her nose but, in the schools we’re thinking about, that option is removed to allow an overall system of adult protection that is assumed to work better. The most effective means for a prisoner to ward off an attacker might be a gun but that means is one the prisoner has no right to use within a system in which prisoner safety is best delegated to guards. Pat: I see what you mean. Sandy: Cool. A second example involves the military. Suppose another country or a terrorist organization attacks our homeland. In a sense, we all have a right to defend ourselves against such an attack. But, when it comes to using powerful means that have any realistic chance of being effective, we delegate that task and responsibility to the military. If some country sent a missile toward the East Coast, there’s not much private citizens could do about it. They could get in shelters, I guess. But missile defense systems are something the army takes care of. You and I don’t have any right to have such massive military equipment. Pat: You’re right. We have to entrust the U.S. military with major defensive weaponry just as we entrust them with offensive weapons. It would be crazy to allow individual private citizens to have missile defense systems, canons, and bazookas. Sandy: Not to mention such weapons as missiles and nukes! OK, so all this brings us to an interesting possibility. Maybe ordinary citizens have a significantly limited right to defend themselves and their households against intruders such as burglars and would-be assailants. They can fight them off—say, with baseball bats—if they want but maybe, when it comes to firearms, they rightfully place that job in the hands of the police. If so,

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a right to self-defense would not include a moral right to bear arms. Maybe ordinary citizens have no moral right to own guns—much less carry them in public. Pat: I strongly disagree with this line of argument. But, before we get into that, I’d like to get clearer on the right to self-defense. Is there such a moral right or not? I think there is. And this right seems pretty basic. Sandy: I agree with you, in part. We agree that there is some sort of moral right to self-defense. The way I see it, anyone who can defend himself has a right to do so if the means are acceptable. Pat: And an example of an unacceptable means of self-defense is a gun used by a prisoner in a prison system that disallows such use but offers protection by guards or other means. Sandy: Right. Here’s another example, a very hypothetical one. Suppose you knew that someone intended to kill you and was hiding in the building across the street. Imagine you lived in a place where there were no police or the police never responded to pleas for help; you also couldn’t get a restraining order on the would-be assailant. The most effective way you could protect yourself against this person, let’s say, would be to blow up the building where he was staying with dynamite. But doing so would kill not only this person but also 15 innocent people who lived in the same building. Here your right to self-defense clearly does not include a right to use the most effective means to defend yourself. You have a moral right to defend yourself as long as your means are morally acceptable. You do not, in general, have a right to defend yourself with the most effective means of defending yourself because sometimes such means are morally unacceptable—they might violate other people’s rights of simply cause too much harm. Fair enough. But it seems to me this right to self-defense with Pat: acceptable means is a basic, or fundamental, right. Sandy: I don’t think so. I’d say it rests on a more basic moral right: the right to physical security.3 This is a plausible example of a basic human right, a right that all human beings or persons have. We 3 For arguments in support of this thesis, see Jeff McMahan, “Why Gun ‘Control’ Is Not Enough,” The New York Times, The Stone, December 19, 2012 (https://opinionator. blogs.nytimes.com/2012/12/19/why-gun-control-is-not-enough/); David DeGrazia, “Handguns, Moral Rights, and Physical Security,” Journal of Moral Philosophy 13 (2016): 56–76; and David DeGrazia, “The Case in Favor,” in David DeGrazia and Lester Hunt, Debating Gun Control (New York: Oxford University Press, 2016), especially Chapter 11.

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all need physical security in order to have any chance of living a decent human life. This basic right includes more specific rights not to be assaulted, killed, physically harassed, raped, subjected to excessive risk—think of drunk drivers or people who throw heavy objects out of their high-rise windows—and so on. It arguably also includes some positive rights—some entitlements to be provided with things that are very important to physical security, such as access to safe shelter and health care. People will debate how much a right to physical security includes but we can agree, I think, that there is such a basic moral right. Without recognition of this right, people would have dim prospects for living a decent and reasonably long life.4 Pat: Makes sense. So we agree that all human beings have a basic moral right to physical security, which means all human beings have a moral obligation not to violate other people’s right to physical security. Sandy: It also means that a government has an obligation to do what it reasonably can to protect its people from threats to their physical security. For example, with the military, with a police force, and with public health departments, which help protect us against diseases and other threats to health. Pat: Alright. So does the basic right of physical security mean that there’s no basic right of self-defense? Sandy: I guess so, since physical security is more fundamental than defending yourself. Defending yourself is important in protecting your physical security, but sometimes physical security is best provided by others. We can assume that anyone who is capable of defending himself or herself, unlike an infant, always has a right to do so with acceptable means. But what means are acceptable depends on whether a given means of defense poses too much of a threat to innocent people—as in the dynamite example—and whether the job of defense has been appropriately delegated to some other party such as the military in the case of foreign attack.

4 The present conceptualization of basic rights is influenced by a discussion in Henry Shue, Basic Rights, 2nd ed. (Princeton: Princeton University Press, 1996), pp. 18–20. Shue argues that we have basic rights to physical security and subsistence. By contrast, Alan Gewirth argues for basic rights to freedom and well-being (Reason and Morality [Chicago, IL: University of Chicago Press, 1978]) while James Griffin asserts basic rights to autonomy, liberty, and a minimal provision (On Human Rights [Oxford, UK: Oxford University Press, 2008]).

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I can accept most of that reasoning. But I feel there’s something we’ve left out. Sandy: What’s that? Pat: I can’t shake the feeling that there’s an aspect of self-defense that goes beyond physical security. Sandy: Pray tell! Pat: Something having to do with dignity or self-respect. Sandy: Interesting. Go on. Pat: Well, suppose someone picks a fight with me and is trying to dominate and maybe even humiliate me. Imagine that this person is an experienced fighter and is clearly stronger than I am, so my odds of winning a fight are slim. If all that mattered here were my physical security, it would make sense for me not to fight. If I fight I’m unlikely to win and more likely to get hurt; and maybe this person will back off if I refuse to fight. Suppose I could call on some protective authority—an adult if I’m a kid on the playground or the police if I’m an adult and there has been a clear threat. Those measures may well have a better chance of protecting me physically than a choice to fight my antagonist. Still, there is something valuable—at least to some people—in not giving in, something that might favor fighting despite low odds of winning the struggle. In fighting back against a bully who is trying to humiliate and dominate you, you stand up for your own dignity and show self-respect. You might prefer to go down swinging than refrain from fighting despite the better odds of avoiding injury if you don’t fight. Sandy: Hmm, interesting. I never thought about self-defense that way. Pat: Even if you have low odds of success when success is defined in terms of winning the fight or maintaining your physical security, you might have high odds of success when success is understood as protecting your dignity or self-respect.5 Pat:

5 Daniel Statman considers the possibility of construing success in terms of protecting dignity, or honor, in a longer discussion that defends a “success condition” for morally permissible self-defense (“On the Success Condition for Legitimate Self-Defense,” Ethics 118 [2008]: 659–686, at 668–669). Deane Peter-Baker also considers the significance of dignity in justifying self-defense, arguing that success in terms of prevailing physically is not a necessary condition (“Gun Bans, Risk, and Self-Defense,” International Journal of Applied Philosophy 28 [2014]: 235–249).

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Sandy: Even though I don’t really feel this sort of appeal to dignity, I can feel that you do. And I would not be surprised if a lot of people do. So I won’t assume that self-defense is valuable only as a means to physical security. And I’m happy to grant that people who are capable of defending themselves at all always have a right to self-defense but, again, on the important condition that the means of defense are morally reasonable or acceptable. And this qualification leaves open whether using guns to protect oneself and possibly other household members is an acceptable means to protecting physical security—and, where it’s relevant, dignity. But a question just occurred to me. Pat: What’s that? Sandy: Granting that dignity has some value that might be promoted by defending yourself, even if your odds of avoiding harm don’t improve, is the value of dignity weighty enough to justify shooting someone? That seems really excessive to me: killing or badly injuring someone in order to have a stronger feeling of dignity! Pat: Whether it’s excessive or not depends on the context, doesn’t it? If someone insults you and won’t take it back, shooting him would be totally disproportionate.6 But if someone has broken into your home and poses a threat of having his way with you or your possessions, using a gun to try to deter or incapacitate this person—even if your resistance increases your odds of being harmed—does not seem excessive to me. Self-defense and dignity together justify use of a gun in this context. Then again, I think self-defense alone is enough justification. Anyway, big picture: my view is that guns are a reasonable means to self-defense in the home. Sandy: Okay, your view is clear. But what do you say to someone who disagrees, who thinks guns are too dangerous for private citizens to own? Pat: I’d ask this person to consider an imaginary, but very realistic, case I read about in an article. Let me read it to you. [Clicks away on laptop keyboard to locate the case.] Quoting 6 Yet dueling with the use of guns was not uncommon in the American South from the 17th century through the end of the Civil War. While sometimes the source of the conflict was a dispute about property or an unpaid debt, often it was an insult that was thought to merit a forceful response (“Dueling in the Southern United States,” Wikipedia, https://en.wikipedia.org/wiki/Dueling_in_the_Southern_United_States#Culture_of_ honor; accessed September 7, 2022).

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the author here: “Consider the case of a woman who wants to buy a gun to protect herself from her mentally unstable, estranged ex-husband. The ex-husband outweighs her by 70 pounds. He has abused her before. The police cannot or will not protect her; they will not station a car outside her house all night, nor send an officer to follow her all day. She has no hope of defending herself without a weapon.” 7 Sandy: That’s a powerful case. Pat: Glad you think so! I’d say this woman’s right to self-defense includes a right to acquire a gun as a reasonable means of protecting herself. And, since the police can’t protect her adequately, given the details provided in the case, her basic right to physical security is seriously threatened if she can’t have a gun. Sandy: Maybe. Pat: Maybe? She’s at great risk if she can’t keep a gun to protect herself. Sandy: OK, but maybe she might also be at great risk if she has a gun. Pat: Huh? Sandy: The case is set up to get us to imagine everything going right. We’re supposed to imagine that the asshole ex-husband stalks her on the street or breaks into her house, and she either wards him off by pulling out the gun or, if necessary, shoots him. That’s how we’re supposed to think about this case. But let’s be realistic. All sorts of things could go wrong if she has a gun. He might grab it, just as she gets it from her safe hiding place, and then kill her with it, even if he had come to the house with only the intention of telling her off. Or suppose she doesn’t keep the gun safely stored. If she has children, one of them at some other time might find the gun and accidentally shoot herself or someone else. Or a teenager might find the gun and commit suicide. Does she live alone? OK, maybe a burglar breaks in, steals the gun, and sells it to another criminal or keeps it for his own criminal activities. That possibility might not be so bad for her or her family but it’s bad for other people. Another possibility is that, having this gun, she gets uncharacteristically demoralized one day and impulsively kills herself although she normally values her life. All of these possibilities are terrible and we can’t ignore them. We have to keep in

7 See Michael Huemer, “Gun Rights as Deontic Constraints,” Social Theory and Practice 45 (2019): 601–612, at 607–608.

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mind not just the possibility of a gun being used properly— say, in legitimate self-defense—but also the possibility of being misused, possibly with tragic results.8 Pat: You’re pretty pessimistic about how the gun might be used. Sandy: I’m trying to be realistic about the possibilities. One thing we shouldn’t do is ignore the likely social consequences of allowing private citizens to own guns. That’s what we talked about last time we met. And we saw that the overall social consequences of American-style tons of guns and weak gun control are very bad. Pat: Yes, we did reach the conclusion but now we’re talking about rights. Doesn’t the woman with the abusive ex-husband have a moral right to own a gun for protection? Sandy: Maybe, but matters aren’t so clear. She has this right only if a definable class of people that includes her have this right. What I mean by “a definable class of people that includes her” is something like this: people who can’t reasonably rely on others, including the police, for protection and whose desired means of self-protection would be morally acceptable, all things considered. So we’d have to figure out what the relevant class of people is and whether it makes sense that their right to self-defense includes a right to own a gun. Pat: OK …. Sandy: And remember that we found that, on average and on balance, Americans make themselves less safe rather than safer by having one or more guns in the home. Having guns for self-protection proved to be self-defeating in this sense. Pat: Yeah, but that assumes that we have current lax gun regulations and poor enforcement of them, like we have today in

8 Regarding how often guns are used for self-defense, there is considerable disagreement. David Hemenway and Sara Solnick, for example, argue that self-defense gun use is very rare (and almost nonexistent in sexual assaults), that most self-defense gun use involves males outside the home, and that there is little evidence that using a gun reduces the likelihood of being injured though it might lower the odds of property loss (“The Epidemiology of Self-Defense Gun Use: Evidence from the National Crime Victimization Surveys 2007-2011,” Preventive Medicine 79 [2015]: 22–27). For a very different perspective, see, e.g., Gary Kleck and Marc Gertz, “Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,” Journal of Criminal Law and Criminology 86 (1995): 150–181 and John Lott, More Guns, Less Crime, 3rd ed. (Chicago, IL: University of Chicago Press, 2010).

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the U.S. If we improved our approach to gun control and law enforcement surrounding guns, it would probably be safer to have a gun for self-protection. That might tip the balance in favor of it being safer to own a gun than not. Sandy: It might. I’m open to that. But, in circumstances like those of our country today, it’s self-defeating to own a gun for self-protection. Pat: But that’s only a statistical average. The fact that private ownership of guns tends to lead to more deaths on average doesn’t make it less safe for everyone.9 Suppose the woman in our case took a firearm safety course and stored her gun safely, if there were any children at home. Let’s assume that she doesn’t have substance abuse problems and is not impulsive. I’ll bet she is safer under these circumstances than if she didn’t have a gun, given her ex-husband’s history of violence and the unwillingness or inability of law enforcement to keep her safe. Sandy: Can’t she just get a restraining order? Pat: Maybe. Or maybe a court won’t grant it for some reason. Or maybe the court will grant a restraining order but the ex- is willing to violate it, just once, so he can kill her! Sandy: That’s possible. Anyway, I take it your main point here is this: for some people, having a gun enhances their overall security and is a reasonable means of self-defense. Even if, for most people, that’s not the case. Pat: Exactly. And we can add details to the case of the woman, as we started to do, to make it very plausible that she is safer being able to own a gun than if she is not. Sandy: That seems right. Pat: So this woman has a moral right to own a gun. It is a reasonable means for her to use in her self-defense and she can’t rely on others to defend her adequately. Sandy: I agree with your second statement, if we consider her in isolation. I’m not sure she has a moral right, though. Pat: Why not? If she has a right to defend herself as long as the means are reasonable—earlier we agreed that everyone has such a right—and we’re stipulating here that a gun is a

9 Huemer stresses this point in “Gun Rights as Deontic Constraints.” See also Timothy Hsiao, “Against Gun Bans and Restrictive Licensing,” Essays in Philosophy 16 (2015): 180–203.

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reasonable means of self-protection for this individual, how can we deny she has a right to own one? Sandy: Your logic is impressive, but we have to think in policy terms and examine our assumptions. Whether her owning a gun is really a reasonable means to her self-protection depends on whether there is a good, reasonable policy that allows her to have one. Any such policy would allow some defined class of people that includes her to own guns. But what if any policy that permitted the defined class of people to own a gun had really bad social consequences, bad enough for us to judge that it’s a bad policy? Pat: What are you driving at? Sandy: Funny that you mention driving. To be honest, I’m thinking about drunk driving. Pretty much everyone agrees that it should be illegal to drive while intoxicated. But determining what counts as intoxicated requires drawing a line. In nearly every state that line is 0.08 blood alcohol concentration—or BAC for short. Now here’s the thing. Some people are more physically coordinated than others—and presumably some are more coordinated than others at a given level of intoxication. Some have better visual perceptions and reaction times. Some, no doubt, since people are different, are more careful than others when they know they are intoxicated. What all this means is that, whether the legal BAC is 0.08 or some other more or less reasonable number, there will be some individuals—even if the number is very small—who are such good drivers and so cautious when drunk that they can surpass that legal limit, to some extent, and be able to drive safely. Of course, driving is a reasonable means of getting places, especially when the distances are too far for walking and there isn’t adequate public transportation for a given journey. Let’s say Courtney is one of these people who can drive safely with a BAC of up to 0.10. Does she have a right to get this intoxicated and drive? I mean a moral right because we are assuming the legal limit is 0.08. Does Courtney have a moral right to drive at 0.09 or 0.10 BAC? Pat: I’m not sure what to say. If she can really drive safely enough at that level of intoxication, it seems to violate her rights to prevent her from doing so. On the other hand, it seems crazy to allow people to make exceptions for themselves this way. The law shouldn’t make room for her. Otherwise, the law would have to have different BAC limits for different people, which

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would be hopelessly complicated and contentious, with people arguing about which limit should apply to them in particular. The law should have just one standard. Too bad for Courtney. She should obey the law. I don’t think she really has a moral right to drive over the limit. For whatever it’s worth, it doesn’t seem like a major hardship to ask her to limit her drinking when she plans to drive. Sandy: I agree. Back to the case of the woman with the abusive ex-, if she has a moral right to own a gun, that would seem to imply that she should have a legal right, too—that denying her the option to buy a gun would violate the moral right. Yet it might turn out that, if we consider the likely consequences of any candidate policy, they would recommend against allowing her to have a gun. In that case, I would say she doesn’t really have a moral right. She has some sort of moral claim but not a strong enough claim to trump consideration of social consequences that recommend not allowing a whole definable class of people to own guns. Pat: A moral claim that falls short of a moral right? Sandy: Yes. A moral claim is, roughly, a moral reason someone can appeal to on behalf of one or more of their interests. Not all moral claims are weighty enough to count as a rights, assuming—as we have been assuming—that a moral right is a strong enough claim that it ordinarily trumps consideration of social consequences. But all that is to say that even the woman in our case might not have a moral right to own a gun. That doesn’t mean she doesn’t have such a right, because we haven’t yet worked through the question of whether consideration of social consequences would, in fact, favor prohibiting someone like her from having a gun. To be honest, I kind of doubt it. If she isn’t permitted to have a gun, who is? I doubt a total ban on private gun ownership is the way to go.10 Or maybe target shooters and gun collectors but not people who feel a need to protect themselves could own a gun? That, too, seems doubtful to me. What I’m more confident about is that, in asking whether someone like the woman with the dangerous ex- should be allowed to buy a gun, we should consider the implications of any policy that allows her to do so. Just as we

10 For an exceptionally thoughtful case in favor of a ban on private gun ownership, see McMahan, “Why Gun ‘Control’ Is Not Enough.”

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should ask the same about whether super-safe driver Courtney should be allowed to drive with BAC over 0.08. Pat: OK, I agree with the general point—although I think drunk driving and gun ownership are different in ways that matter. Sandy: Probably so. As you said, it just doesn’t seem like a huge loss for super-driver Courtney if she isn’t allowed to have a BAC over 0.8 and get behind the wheel. By contrast, someone like the woman with an abusive ex- might have a real need for a gun, at least if the dangers of owning one can be minimized so that her having one means a net gain in her safety. Pat: I agree. But wait. We’ve been accepting the idea that we should take the likely consequences of a policy into account in morally evaluating the policy. So are we implicitly accepting utilitarianism? I don’t accept that theory. It has some really unacceptable implications, as I see it. Sandy: I get that you’re not a utilitarian. Although I’m sympathetic to some versions of that theory, I doubt that at the end of day I’m any kind of utilitarian either. But considering the broader social implications, or the likely consequences, of a policy that we’re evaluating doesn’t automatically make someone utilitarian. Most ethical theories consider the expected consequences of an action or a policy to be relevant in deciding whether it’s right or wrong, even if they think other factors—like people’s rights or principles of justice—also matter. On the other hand, by giving expected social consequences some weight, we are probably ruling out a pure libertarian approach to ethics. Pat: I sometimes hear about libertarianism in political discussions and I have the sense that some gun people consider themselves libertarian. But I’ve never been 100% sure how to define that philosophy. Can you, since you took that ethics class last year? Sandy: Yes, I think I remember. I certainly knew at the time I took the final! OK, so as I remember, libertarianism—at least the classic version of it that people are usually referring to11—is a

11 Such classic libertarianism, as discussed here, is sometimes today referred to as “right libertarianism” and contrasted with “left libertarianism,” a view that has emerged in recent decades. Left libertarianism shares with its classic predecessor an emphasis on liberty and self-ownership but it distinguishes itself from classic libertarianism with a more egalitarian view of the ownership of natural resources. For discussions by some prominent left libertarian thinkers, see, e.g., Hillel Steiner, An Essay on Rights (Oxford, UK: Blackwell, 1994) and Peter Vallentyne, “Libertarianism and the State,” Social Philosophy and Policy 24 (2007): 187–205.

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moral and political philosophy that gives priority to individual liberty as a value … Pat: Makes sense that libertarianism would stress liberty. Sandy: … yes, and it says that people have negative rights or rights not to be interfered with—most basically, to themselves and their property—but not any positive rights. The negative rights, more specifically, are things like rights not to be killed, not to be assaulted, not to be forced to work against your will as in slavery, not to have your freedoms taken away, that sort of thing. Libertarians don’t accept that people have positive rights such as entitlements to food, shelter, or health care. Everyone has negative rights to try to get those things, usually by buying them, but no one has a right to be provided with stuff, even the basic necessities of life. Pat: Libertarians deny there are any positive rights at all? Does that mean no one ever has a positive obligation to help someone else or so something for them? That can’t be right. Sandy: Come to think of it, you’re correct and I spoke too quickly. What I said about people only having negative rights, in libertarianism, applies to—how to phrase this?—free-standing rights—I mean rights people have just because they’re people or human beings. But through free choices, people can acquire certain positive rights—or positive obligations. For example, if you hire me to give you guitar lessons for a fee, I have a positive right to the fee and you have a positive right to lessons as long as our agreement holds; and that means you have an obligation to pay me and I have an obligation to teach you. Also, if an individual harms someone else, or violates their rights, then the first person owes compensation to the victim, and the victim has a positive right to the compensation. So, overall, everyone has a bunch of basic negative rights, which are all rights not to be interfered with in some way or another. Then, through our free choices, we can take on certain positive obligations either through an agreement or by wronging someone else—and, in these cases of free choice, the other person has a specific positive right against us. So liberty, or not being interfered with or forced to do things one hasn’t agreed to do, is at the absolute heart of libertarianism. Pat: Wow, nice summary! You really learned your stuff in that class. Why did you say that the way we’ve been thinking about rights is probably not consistent with libertarianism?

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Sandy: What I really mean is that it seems inconsistent with a pure form of libertarianism. I put it that way because lots of people are libertarian-leaning but not the pure article: they allow for some positive entitlements, paid for with tax revenue, like public education, libraries, maybe food stamps for those who really need them, maybe Medicare for the elderly. The pure libertarian would allow only a minimal state, a very minimal government, whose job would be to enforce negative rights— and perhaps some of those positive rights that emerge through free transactions—and deliver justice when some people violate other people’s rights. So the government would include a military, a police force, courts, and prisons. But it would not include public education, public health services, public libraries, much less unemployment benefits and guaranteed access to health care. Pat: I get the idea. And I’m glad to have a better grasp of a position that some gun advocates hold. But how does this connect with the way we were thinking about rights? Sandy: Ah, thanks for getting me back on track. We decided that whether the woman with the dangerous ex- had a right to own a gun could not be entirely separated from considering the social consequences of a policy or that would permit her to own one. Sure, people’s rights are strong protections that you can’t override whenever doing so is expected to produce the most social utility or good consequences; ordinarily, rights take priority over appeals to utility. But what rights do people have? At least sometimes—like when we are considering what dangerous tools people are allowed to own and use—in determining what rights people have, we have to take social consequences into account. And sometimes, even if not very often, people’s rights can be overridden if the social consequences of respecting those rights would be much, much worse than overriding them. So here’s the deal: pure libertarianism holds that people’s general negative rights trump consideration of social consequences and exist regardless of the consequences of recognizing those rights. Pat: OK, so libertarianism is extremely anti-consequentialist in thinking about rights whereas we allow likely consequences to play some role in shaping our understanding of rights, what they include, and when they might be overridden. I get the abstract idea. But what are some concrete examples of allowing consequences to help shape our understanding rights and their limits? And what makes you so sure that libertarianism isn’t correct?

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Sandy: Your good questions and my enthusiasm in trying to answer them are making me feel like a T.A. for a philosophy class! We decided that whether the woman in the case has a moral right to own a gun depends in part on the likely social consequences of a policy that lets her own one. A pure libertarian would consider the expected consequences irrelevant and would probably judge that she has a right to own a gun as an effective means of self-defense,12 and that her right to self-defense derives from her rights not to be killed, coerced, etc.— basically physical security, understood as a negative right. So our approach is an example of allowing the expected social consequences of recognizing X as a right to play a role in determining whether people actually have a right to X. And, to give another example of this idea, part of the reason we private citizens don’t have a moral right to own bazookas, even if we could use them effectively in defending ourselves, is that the social consequences of letting people own those weapons would be terrible. Pat: Got it. What’s an example of expected consequences overriding a moral right that people have? Sandy: Let’s see …. Making people who have a highly dangerous infectious disease go into quarantine for a couple of weeks is an example of overriding their right to freedom of movement in the interest of protecting public health—a consideration of social consequences. Pat: Good. And why should we be confident that libertarianism, at least in its pure form, is unacceptable? Sandy: Well, note, first of all, that libertarianism seems more or less passé among serious rights scholars. Back in the 70s, when Robert Nozick published his famous book,13 libertarianism

12 For a thoughtful libertarian-leaning argument that our right to self-defense includes a right to effective means of self-defense, see Lester Hunt, “The Case Against,” in David DeGrazia and Lester Hunt, Debating Gun Control (New York: Oxford University Press, 2016), especially Chapter 5. 13 Anarchy, State, and Utopia (New York: Basic, 1974). Many believed that Nozick’s exceptionally cogent presentation of libertarian ideas eclipsed the work of Friedrich Hayek, who was considered a leading libertarian for several decades. See, e.g., Hayek’s The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960). Classic libertarians trace some of their core ideas about self-ownership and property rights to John Locke, Second Treatise of Government (originally published in 1689 with an official publication date of 1690).

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got a major lift and was well respected among rights theories. It was often contrasted with two other leading theories: utilitarianism14 and Rawls’ theory of justice.15 But rights theories evolved over the next few decades and the most respected rights theorists today, if I’m not mistaken, don’t include any libertarians.16 Pat: Impressive but … I took a class in informal logic freshman year. Aren’t you committing a fallacy by saying, basically, because such-and-such scholars reject libertarianism, libertarianism is a bad or unacceptable theory? Sandy: Good question. I’m not saying that exactly. What I am saying is that, since you and I are not experts in rights theory, we would do well to put some trust in those who are widely recognized as leading experts in the area. But we won’t take their word as final. Plus, there can be disagreement about which scholars are the most respected rights theorists. So, if we reject libertarianism, we should do so because we believe there are compelling grounds to reject that theory. Pat: Right. We’ve already seen some good grounds for rejecting it, in my opinion. Namely, the fact that a true libertarian government would not fund any social supports for people who would otherwise be unable to meet basic needs like food, shelter, and health care. A libertarian government would not have a National Institutes of Health because the government’s job is to protect us against negative rights violations and promoting

14 For a classic exposition and defense of utilitarianism, see Mill, Utilitarianism. Although utilitarianism is often charged with a failure to accommodate rights, some utilitarians use their theory as a basis for justifying a system of rights. See, e.g., L. W. Sumner, The Moral Foundation of Rights (Oxford, UK: Clarendon, 1987). In fact, a careful reading of Mill’s text suggests that he supported rights as practical implications of the principle of utility. 15 See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 16 See, e.g., Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990); Jeremy Waldron, Liberal Rights (Cambridge, UK: Cambridge University Press, 1993); Shue, Basic Rights; Martha Nussbaum, Women and Human Development (Cambridge, UK: Cambridge University Press, 2000); Gopal Sreenivasan, “A Hybrid Theory of Claim-Rights,” Oxford Journal of Legal Studies 25 (2005): 257–274; Griffin, On Human Rights; Charles Beitz, The Idea of Human Rights (Oxford, UK: Oxford University Press, 2009); Allen Buchanan, Human Rights, Legitimacy, and the Use of Force (Oxford, UK: Oxford University Press, 2010); Hillel Steiner, “Directed Duties and Inalienable Rights,” Ethics 123 (2013): 230–244; and Leif Wenar, “The Nature of Claim-Rights,” Ethics 123 (2013): 202–229.

Does a Right to Self-Defense Support Gun Rights? 51

public health doesn’t fit into that scheme. A libertarian government would not even have public schools—unless an exception is made for children because they’re not responsible for taking care of themselves—in which case, shouldn’t the libertarian also favor food stamps, shelters, and health care for children who need them? Sandy: Right. The harshness of such a minimal state is something few people really accept today. Even American politicians who call themselves libertarians do not oppose all public programs that pure libertarianism rejects in principle. The theory also implies, at the level of individual action, that if you found a young child who was about to die unless you did something quite easy like call 911 or wade into a pool to save him from drowning, you would have no moral obligation to do so! None at all, since you have no obligation to help those in need unless you have agreed to do so or you previously wronged them. I know few, if any, people who sincerely believe this implication of libertarianism. Back to government, libertarianism also implies that an adult who is severely disabled—through no one else’s fault—has no right to assistance even if he or she would be unable to get around, and work, maybe even stay alive without assistance. Few people are as cruel as this theory’s implications. Pat: Wow, when you put it like that …. Sandy: And libertarianism has a lot of theoretical problems. I can’t say I fully understand the issues, but plenty of moral and political philosophers have argued that libertarianism’s distinction between negative and positive rights is very unclear and dubious in certain ways,17 and that the theory lacks a plausible account of the legitimate initial acquisition of property such as a piece of land.18 The theory needs a workable account of initial acquisition because it holds that later exchanges of goods are morally legitimate, or just, only if all previous transactions and actions that led to the current availability of these goods were legit. To put the idea simply: If you sell me a bike that was

17 This theme is insightfully explored in Waldron, Liberal Rights and Shue, Basic Rights. Both authors argue that the important distinction is not between negative and positive rights but, rather, among the obligations that correspond to rights. 18 See Will Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd ed. (New York: Oxford University Press, 2002), chapter 4.

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stolen, it’s not legitimately my property but instead belongs to the person it was stolen from. Now think of a situation where people are making transactions on land that, many years ago, was acquired through theft, fraud, forced relocation, or mass slaughter. Maybe we can look at those issues at some point. For now I just wanted to flag them because they strengthen my feeling that libertarian is just not a viable theory anymore. Pat: Great. Let’s move on. I’m anxious to learn what we will decide about the woman with the threatening ex-husband. Does she, at the end of the day, have a right to own a gun as an acceptable means of protecting herself against a very real threat? Or not? Sandy: Yeah, we’ll see. I expect that the best answer, at least in a country like ours in which there are tons of people who already have guns, is Yes, she should be allowed to have one under certain conditions. But we’re not there yet. And I want to play devil’s advocate with another case, one I thought of yesterday. Pat: What’s the case? Sandy: A variation of the case we’ve been thinking about. In this version, again, she has a violent ex- who is threatening her while law enforcement won’t protect her adequately. But in this variant of the case, the ex-husband has a gang of five friends who have somehow gotten their hands on machine guns, despite their illegality.19 The woman believes that her ex-husband’s buddies are members of an organized crime organization that is extremely effective at evading the law. Anyway, the ex- calls and says that he and his posse will be paying her a visit in the next week in order to give her “justice,” which she interprets, reasonably enough, as a death threat. She calls the police but, for whatever reason, they won’t give her a bodyguard or station someone outside her house. The police are skeptical about the machine guns and say to call if the six men attempt to break in. But she knows that the posse are capable of breaking in faster than the police are likely to arrive after a call. In this case, owning a handgun is insufficient to protect herself. There are multiple antagonists who have fully automatic weapons. To have an effective means of protecting herself, she would need something exceptionally powerful and dangerous such as hand grenades or a canon. Or maybe just having, and brandishing,

19 These weapons are fully automatic, meaning they will fire bullets continuously as long as the shooter depresses the trigger and ammunition remains.

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a machine gun would convince them to back off; they could certainly kill her but one or more of them might die in the shootout. Anyway, it is very implausible that the law should allow private citizens to buy machine guns, hand grenades, or cannons. They’re just too dangerous in terms of overall public safety. Pat: Interesting and persuasive thought-experiment! What’s the upshot or take-home lesson? Sandy: The upshot is that there might be some cases in which a person’s right to self-defense does not include the most effective, or even fairly effective, means to self-defense in a given context. Even good policy, which among other things respects people’s rights, cannot guarantee that someone will always have an effective means of self-defense. That means, for all we’ve argued so far, that the woman in the original case might not have a right to purchase a handgun even if it’s an effective means of self-defense in her particular circumstances. Pat: Your general points seem well-argued. But I think we both tend to believe that a woman in her circumstances does have a moral right to own a gun so that good policy would permit her to get one. Sandy: Yes, I think so. Notice, though, that there could be a policy that allows her to purchase a gun for self-protection that is consistent with having more extensive restrictions on gun ownership than the U.S. has today—both federally and in particular states, which often supplement federal law with further regulations. By the way, I read about another sort of case that struck me as a compelling example of where someone should be able to have a gun for self-protection.20 In this case, someone lives in a very tough neighborhood, can’t afford a car, and needs to walk through gang territory to get to and from work. Police presence is so minimal that there is almost never an officer in sight. Although a gang could … ahem … gang up on him and overpower him in any gun fight, his possession of a gun and willingness to display it to gang members as needed give him a much better chance of deterring their aggression should they be inclined to rob or harass him. Pat: That’s a good case. He can make a persuasive argument that he needs a gun for protection. The police in that situation can’t

20 This case is presented in Huemer, “Gun Rights as Deontic Constraints,” p. 608.

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be expected to keep him safe as he walks to and from work. But this raises a question for me. Sandy: What’s that? Pat: In general, can we rely on police protection? We’ve mainly focused today on the question of whether there are gun rights based on a right to self-defense within the home. Some gun opponents claim that, instead of keeping guns for home defense, it’s better to just call the police. And, according to research I did last week, some countries permit private ownership of guns if one demonstrates a special need for a gun, but protecting oneself doesn’t count as a legitimate need!21 Can you imagine? A legitimate need, apparently, is collecting guns or hunting but self-protection isn’t. They must have a lot of faith in their police. Or their countries must have few guns and not so much violent crime. Well, in the U.S. there is a ton of violent crime, much of it with guns, so our situation is different from the situation in those countries—which include Australia, New Zealand, and most parts of Great Britain. Sandy: But, even in the U.S., don’t you think most people can be safe enough if they lock their doors and windows and, in the unlikely event of a break-in attempt while they’re home, call the police? Pat: For a lot of people, that probably is safe enough. But, let’s remember: violent crime is much more an urban problem than a suburban or rural problem. And, while our university is in a city, it’s in a mostly safe part of the city. Many people in the U.S., including a lot of people of color, rightly feel less safe than we do. Sandy: OK. But, to a large extent, our society has delegated the job of forcefully stopping criminals to the police just as we’ve delegated the job of warding off foreign threats to the military. Pat: I’m not so sure about that. I’ve noticed that some gun enthusiasts claim that it is not the job of the police to protect people at home. They point to court cases that seem to support this idea—which, I admit, I found surprising. I think I saved some notes on my laptop, hold on … [attends to laptop for a few moments]. OK, here. In one famous case, in 1972 Ruth Bunnell called the San Jose police, reporting that her estranged

21 See Philip Cook and Kristin Goss, The Gun Debate: What Everyone Needs to Know (New York: Oxford University Press, 2014), pp. 118–120.

Does a Right to Self-Defense Support Gun Rights? 55

husband had just called and said he was coming over to kill her.22 By the way, gun advocates don’t usually mention this but it turns out she had called the police about 20 times in the previous year with concerns about her husband. Anyway, the police said to call if and when her husband arrived. Forty-five minutes later the husband, Mack Bunnell, came to her house and stabbed her to death. The judgment in this case was that the government was not liable under tort law for failing to provide adequate police protection. In another case—I’ll skip the details—an appeals court held that police do not owe a specific duty to particular individuals to provide them protection—one condition of being liable under tort law is that the defendant owes a duty to the plaintiff, the injured party.23 A more recent case, decided by the U.S. Supreme Court, held that a town and its police department could not be successfully sued for failure to enforce a restraining order, which led to yet another estranged husband committing murder.24 From reading these cases, I learned that there is something called the public duty doctrine in American tort law. It says, basically, that the police, or the government that employs them, has a duty to protect the public at large but not a duty to particular individuals, except those in their custody. To have a duty, and to be liable for a lawsuit, you have to have a special relationship that creates a duty of care. That special relationship does not hold between the police and each individual in the community but it does hold between the police, or the government, and people who are held in jails, prisons, or public mental institutions, for example. What do you make all of this? I thought the police were supposed to protect us. Sandy: Me, too. Of course, they can’t guarantee perfectly adequate protection to everyone. Sometimes there aren’t enough police officers and there’s too much crime. But, in at least some of these cases it sounds as if the police were somewhat negligent. But what counts as sufficient negligence for a legal duty is a technical matter; as you said, there has to be a special relationship, for starters. And a legal duty is a condition for being liable to a lawsuit. Ethically, I take it that the police have an

22 Hartzler v. City of San Jose (46 Cal.App.3d 6 1975). 23 Warren v. District of Columbia (444 A.2d 1, D.C. Ct. of Ap. 1981). 24 Castlerock v. Gonzalez (545 U.S. 748 2005).

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obligation to do everything they reasonably can, given their resources, to protect the public as well as those individuals who call for special protection. That’s their job, as a matter of common sense. Now sometimes, maybe, they can’t intervene in a way that saves a life. But their duty to the general public implies—ethically whether or not legally—a duty to do what they reasonably can to protect individuals as needed. Pat: I’m glad you said that. To me it’s a little disconcerting that there is no legal duty to protect individuals who are outside of government custody, or at least no legal duty that can serve as the basis for a lawsuit. I would think that in cases of clear and major negligence there should be liability. But I’m not a lawyer. Anyway, I like what you said about an ethical obligation, which assigns a duty to police to protect individuals who call for help without claiming there is an impossible duty to guarantee effective protection. There’s seems to be an ethical duty to do what they reasonably can, given their resources and other demands on them at a particular time. Sandy: Yes, and guess what? The police themselves see it this way. Let me find it … [does some searching online] … here it is. The International Chiefs of Police is an organization with more than 31,000 members in over 165 countries. It has a Law Enforcement Code of Ethics. Here is its opening statement in full: “As a law enforcement officer, my fundamental duty is to serve the community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation, and the peaceful against violence or disorder; and to respect the constitutional rights of all to liberty, equality, and justice.”25 That’s more like what we expect of the police: a duty to safeguard lives and property and protect those who are vulnerable from intimidation and violence. So, when gun enthusiasts claim that the police in the U.S. have no duty to protect us, I’m not buying it. The police clearly have, and embrace, an ethical duty to do their jobs— which consist in maintaining order, enforcing the law, and protecting people. But sometimes resource constraints make protecting everyone impossible, which can motivate resistance

25 International Association of Chiefs of Police, “Law Enforcement Code of Ethics” (https://www.theiacp.org/resources/law-enforcement-code-of-ethics; accessed August 23, 2021).

Does a Right to Self-Defense Support Gun Rights? 57

to the idea that there is an enforceable legal obligation to particular individuals—except those in custody. Pat: Yeah, that way of thinking about what police are supposed to do makes sense to me. But, of course, we have ignored the elephant in the room. Sandy: What do you mean? Pat: As the Black Lives Matter movement has made abundantly clear, there are a huge number of police officers who engage in brutality against people they suspect of criminal wrong-­ doing—often with no reasonable grounds for their suspicions—­ and the patterns of their brutality are decidedly racist. In most cases, their misconduct is anti-Black. Sandy: Yeah, I know. It’s awful. If it weren’t for smart phones’ video capabilities, a lot of us White Americans might still underestimate how bad this problem with the police has been. We are finally seeing some reforms of police practices in particular districts and some court cases are going the right way. But there is still a very large problem. How do you see this fitting into our discussion of gun rights? Pat: Well, those in favor of strong gun control have this idea that we should mostly rely on the police if someone is trying to break into our home. But a lot of Americans have little faith in the police. And, as we can see in some of the court cases we considered, sometimes they can’t be relied upon to protect those who call for help. Sandy: Quite true, everything you just said. Obviously, police reforms have to continue so we can rely on the police to do their jobs impartially and without racist or other discrimination. That might require tougher screening of those who apply for positions as police officers with better efforts not to hire those who are likely to be major racists. But another part of the solution, no doubt, is to do a better job of training officers to be more aware of their possible biases, which can be unconscious, and to counteract them. At the same time, while I am a pretty strong advocate of gun control, I am not arguing for a ban on guns and I’m inclined to think that some people have a genuine need for them because their circumstances don’t allow them to rely on police for adequate protection. If that’s correct, then what is needed is to allow the right people to have guns and to have the right sorts of gun control measures so that these people—and anyone they live with—will be actually safer, and not less safe, if the home contains one or more firearms.

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That makes a lot of sense. Of course, the devil is in the details, as they say. Sandy: Right, and we can leave it for a later discussion to take on the devil. I have to go in a few minutes. How would you summarize our big-picture conclusions for today? Pat: Oh, great. Let me do the hard work! OK, big picture … first, the basic right everyone should be able to agree on that’s relevant in discussing gun rights is physical security. Gun rights, assuming there are such a thing, are not basic but derive—at least in part—from physical security. Some people will hold that they also derive from rights to maintain one’s dignity or self-respect. And possibly they also derive from liberty rights, which I suggest for next week’s discussion. Sandy: Perfect, let’s discuss liberty rights in connection with gun rights next time. Pat: What else? We’ve agreed that there is some sort of right to self-­ defense, even if it’s not basic and is based on physical security …. Sandy: Right. Pat: … and maybe dignity. Sandy: I’m glad you keep reminding me of that. I could easily forget the point about dignity, which I hadn’t thought of before today, and I haven’t seen it discussed in the gun control literature.26 Anyway, go on. Pat: The right to self-defense does not necessarily include a right to the most effective means of self-defense because the means a person is entitled to use have to be reasonable or acceptable, all things considered. And “all things” include consideration of the social consequences of any policy that would make a particular means of defense available to private citizens. So, for example, even if in some person’s circumstances, a machine gun or hand grenades would be the most effective means of defense, these means would be unacceptable because a policy that allowed individuals to own such weaponry would create way too much social danger. That’s a point about what the right to self-defense encompasses. A closely related point is that, to figure out exactly what moral rights people—or a certain group of people—have, we have to take some account of the expected social consequences of their being entitled to the thing in question. It might turn out, for example, that Pat:

26 Sandy has not come across Peter-Baker, “Gun Bans, Risk, and Self-Defense.”

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American citizens have a moral right to own handguns, if they meet certain conditions, whereas Chinese citizens do not— and the difference could be a matter of the different circumstances of people in the two countries and the likely social consequences of a prerogative to purchase handguns in those different societies. Sandy: And, while superficially that might seem inconsistent or relativistic, it’s not. Since gun rights, if there are any, derive from more general rights, it makes sense that dissimilar cultural contexts, diverse circumstances and needs of people in those cultures, and different likely consequences of gun ownership could mean different specific rights in the different countries. One general standard of ethics—including basic rights for all human beings—but different specific rights or prerogatives depending on how things play out in the dissimilar contexts. Pat: I don’t think we’ve yet decided whether in the U.S. people have a moral right to private gun ownership. Obviously, under current interpretations of the Constitution as well as state laws, there is a legal right. But a moral right—not yet decided. Sandy: I agree. We are both sympathetic to the idea that some people in the U.S., such as the woman with the dangerous ex-, and the guy who has to walk frequently through gang territory, have a legitimate need for a gun. But one could argue that the problem there is inadequate police protection and, with adequate policing, the need would disappear. The woman who is threatened by her ex-husband could get a prompt police response and the guy who lives in the dangerous neighborhood would have enough of a police presence as he walked to work to feel safe. Pat: Yeah, but that’s ideal or hypothetical. Let’s focus on real circumstances in the U.S. and ask whether people, in their circumstances, should be allowed to own and keep guns. Sandy: Fair enough. But suppose only some people should be allowed to. Maybe people who really have a special need, like the woman and man in the cases we just considered, and only if they themselves are not felons and haven’t been diagnosed with some disqualifying mental illness and have proven their ability to keep and use guns safely. That’s a lot of conditions on their ownership. If that’s the sort of picture that we decide is the most ethically defensible, we might not want to say that private citizens have a moral right to own guns. We might want to say that certain persons have a strong moral claim, or

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should have a prerogative, to own a gun. After all, if we say that private citizens have a moral right to own guns, then it might seem discriminatory to exclude people who are really depressed, or felons who have served their time, or even children, from purchasing them. Speaking of a “prerogative” or, maybe better, a “privilege” doesn’t seem to contradict the idea that certain people, especially those who have done nothing wrong—like those who are clinically depressed—are rightly excluded from gun ownership. Pat: Gotcha. We’ll leave a decision about moral rights for later. Next week, same place and same time, let’s talk about liberty rights as possible bases for moral rights, or prerogatives, to own guns. Sandy: Sounds good. We can both read up on the topic in the meantime.

Dialogue 4

Do Appeals to Liberty Support Gun Rights?

Setting: Pat is sitting at a table in the coffee shop, with a tall decaf, when Sandy arrives carrying a double cappuccino and a laptop. Sandy: Ah, sí, esta vez tienes café descafeinado! I have to practice my Spanish once in a while. Are you still aiming for low caffeine in the afternoon? Last time it was green tea. Pat: Yep. And it’s working because I’m sleeping better … except before exams. Sandy: Understood. So … today we’re talking about liberty as a possible basis for gun rights. Since you’re more pro-gun than I am, do you want to get us going? Sure. [Pulls a page of written notes out of a knapsack.] Last week Pat: we discussed the claim, which pro-gun people often make, that gun rights are grounded in a right to self-defense. We also arrived at the idea that a right to self-defense is not basic or fundamental, because it rests on a right to physical security, which is truly basic—meaning it doesn’t rest on a more general moral right. Well, this week I came across the idea that gun rights themselves are fundamental, or basic, in some sense.1 Or I thought I did. But then, when I dug deeper, it seemed like these authors were really saying that a right to gun ownership is grounded in a right to self-defense or rights to one or more liberties. Still, I’m wondering: could someone argue that there is a genuinely basic right to own guns, a right that is not dependent on any more general right such as self-defense, physical security, or liberty rights?

1 See Lance Stell, “Gun Control and the Regulation of Fundamental Rights,” Criminal Justice Ethics 20 (2001): 28–33 and Samuel Wheeler, “Gun Violence and Fundamental Rights,” Criminal Justice Ethics 20 (2001): 19–24.

DOI: 10.4324/9781003105404-4

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Sandy: I doubt it. As far as I know, no internationally respected rights document asserts a basic right to gun ownership. No such right is identified in the United Nations Declaration of Human Rights as any kind of right, let alone a basic one.2 [Opens a page of notes on laptop.] There is also no mention of a right to private gun ownership in either the International Covenant on Political and Civil Rights3 or the International Covenant on Economic, Social, and Cultural Rights.4 More fundamentally, it doesn’t seem to make sense to claim that something as specific as owning guns is a basic right. Presumably, this would be a human right—meaning a general right that all human beings have. Well, do you think prehistoric humans living in caves had a right to own guns? The idea is bonkers! Pat: Hmm, not so fast. Maybe those cavemen—excuse me, cave people—had a moral right to keep and use whatever the most effective weaponry was at the time. If you apply that same idea today, it might imply that people have a right to keep and use guns. Also, do you think cave people had a right to public education through high school and a right to access health care? Because I’ll bet you think people do today. Sandy: You got me there. I do think that we, at least those of us who live in a society that can afford and provide such goods, have a right to free public education through high school and a right to access basic health care services. These are positive rights, rights to be provided with certain goods, and it makes sense that they’d be contingent on the ability of a society to provide these goods to everyone. That would rule out the miniature societies of cave people. Notice, though, that gun rights—if there are such rights—would be negative rights, rights of noninterference. In other words, if you have a right to bear arms, it would mean society may not prevent you from having them … with some sensible conditions, of course, like the gun owner being

2 United Nations General Assembly, “Universal Declaration of Human Rights” (New York: United Nations, 1948) (https://www.un.org/en/about-us/universaldeclaration-of-human-rights). 3 United Nations, “International Covenant on Political and Civil Rights,” (New York: United Nations, 1966) (https://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-4&chapter=4&clang=_en). 4 United Nations, “International Covenant on Economic, Social, and Cultural Rights,” (New York: United Nations, 1966) (https://treaties.un.org/Pages/ViewDetails.aspx?src= IND&mtdsg_no=IV-3&chapter=4).

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a competent adult. Gun rights would not be positive rights or entitlements of private citizens to be provided with guns free of charge if you couldn’t afford them. OK, so maybe cave people had a negative right to possess whatever weaponry was state-ofthe-art. Then pro-gun people could say that we today have the same right, which is specified in terms of gun rights. Pat: So do you think maybe gun rights are basic? Sandy: No. First of all, I’m not sure there really are gun rights. But, if there are, they could not be basic in the sense of not being derived from something more fundamental. Pat: Why not? Sandy: Because guns aren’t intrinsically valuable. Physical security is. Any person’s life is better if they are physically secure. Last week you suggested that, even though self-defense can help protect physical security, which is more basic, there might also be value in self-defense as a way of maintaining one’s self-respect or dignity—­but, even if that’s right, maybe what’s basic is self-­ respect rather than self-defense or the weapons that make effective self-defense possible. Anyway, my point is that guns are not intrinsically valuable. They are valuable for what they can do. They are instruments that can serve certain purposes such as self-defense, hunting, the entertainment that comes with target shooting, and criminal activity for the criminals out there. Guns just sitting in one’s house don’t add value to one’s life. Pat: What if you’re a gun collector and appreciate them just for what they are? Sandy: I guess then you might value guns intrinsically. You might think your life is better just simply because you have certain guns in the home—even if they can’t be fired. But that is a very specific taste, not one we can attribute to people in general. Most people’s lives are not made better simply by the presence of guns—let’s imagine ones that can’t be fired—as opposed to having guns for their usual purposes. And it’s even clearer that guns, just in and of themselves, are not necessary for a decent chance at a good human life. It’s different with physical security. If you don’t have it, your chances of having a decent human life are seriously reduced.5 So, from a commonsense standpoint, physical security is a basic moral right.

5 Henry Shue advances the same point (Basic Rights, 2nd ed. [Princeton, NJ: Princeton University Press, 1996], p. 20).

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It’s a good example. What do you think are some other examples of basic rights? Sandy: Well, I think certain liberties are basic rights, which brings us to today’s main topic. I’m thinking of rights to freedom of expression and worship, a right to freedom of movement, a right to get together with other people, that sort of thing. Pat: Yes, I agree. We might not agree on a precise list of liberty rights but I’m sure we’d agree on a lot of them, including some that are constitutionally recognized such as free speech, freedom to practice the religion of your choice, and freedom to assemble or get together with people—assuming they want to get together with you! Sandy: Right. We’re starting from some common ground here. What liberty right or rights do you think might support gun rights? Pat: Well, first I have a question. Is there a right to liberty itself, liberty in general, as opposed to specific liberty rights like we were just giving examples of? Sandy: Hmm … I doubt that would be the best way to think about liberty and rights. It’s too general to speak of a right to liberty. Talking this way half-suggests that every limitation of your liberty is a violation of your rights.6 But the law and morality limit our liberty to do whatever we please, in all sorts of ways. Every ethical limitation on our liberty is, by definition, justified ethically. Laws that limit our liberty—say, by making us drive on the right side of the road, prohibiting murder, and requiring us to pay taxes—also limit liberty in ethically justified ways. At least they do if they’re legitimate laws. When there were laws that required Blacks to eat only in certain parts of diners or sit in the back of the bus, those limitations were not justified because they were unethical. They violated the assumption that people have equal moral standing. But legitimate laws limit liberty—wow, lots of ‘literation there!—in ethically justified ways. Pat: Very clever! But, seriously, people generally accept the idea that moral rights—at least most of them—have limits. That’s why it’s wrong of you to cause a stampede at a concert by hollering “Fire!” when there is no fire. Your morally protected free speech doesn’t include that particular freedom. Pat:

6 Sandy’s critique finds common cause with Jeremy Waldron, Liberal Rights (Cambridge, UK: Cambridge University Press, 1993), p. 40.

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So couldn’t we say everyone has a general right to liberty but it has limits? That you have the right to do whatever you want to do unless you’re harming others or violating their rights? Sandy: Well, even that doesn’t seem quite on target. If you fail to pay your taxes, you’re doing something wrong but it’s not so clear you’re harming anyone or violating their rights. It seems to me that we improve clarity, and lose nothing important, if we talk about specific liberties. And even these are bounded or limited. For example, your right to freedom of movement does not extend as far as walking into someone’s house without permission. It’s not that you have a right to do so, and this right conflicts with the house owner’s right to property; to think of it that way, you’d have to believe there is a conflict of rights, which seems unnecessary. Better to say that your right to freedom of movement is broad but also bounded in certain ways, including by other people’s rights. So it doesn’t include walking onto my property without my permission. Pat: That makes sense to me. So let’s pursue the question of whether liberty supports gun rights by asking whether particular liberties support gun rights. That will let us focus and be more exact. Sandy: Good. What do you have in terms of arguments? Pat: Well, one liberty, or freedom, that I found was frequently mentioned when I was researching over the past week is freedom from a tyrannical government. Some gun supporters argue that this moral right supports gun rights.7 Sandy: Yes, that particular freedom is often cited. But I really have doubts about this sort of argument. Sure, we don’t want the federal government to transform into a tyranny and take away our basic liberties. But how likely is that? It seems like corny fiction to imagine the United States government going rogue and then, just as absurdly, private citizens heroically fighting back and winning the battle! People who talk like this strike me as pretty unhinged. Pat: Well, if you’re right, then there must be a lot of unhinged people in our country. Earlier this week I read that something like two thirds of Americans who were polled think that the

7 See, e.g., Wheeler, “Gun Violence and Fundamental Rights”; Charles Dunlap, “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment,” Tennessee Law Review 62 (1995): 643–677; and Jasmine Rae Straight, “The Right to SelfDefense against the State,” Philosophia 49 (2021): 437–458.

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purpose of the Second Amendment is to protect the public against tyranny!8 Sandy: Our fellow Americans can be very strange. The idea still strikes me as implausible.9 Pat: Hold on, let’s think it through. You’re claiming that two possibilities are totally implausible: first, the government going rogue, or trying to take away our liberties, and, second, the people successfully defending themselves with firearms. I think both of these ideas are worth taking more seriously than you take them. Start with the first idea: that the government might move in the direction of tyranny. It could either be a sitting government or it could be a newly installed one. Think of examples from the 20th century: Mussolini in Italy, Hitler in Germany, and Franco in Spain. Now, that was a long time ago and democracy has spread and grown since then. But, recently, we have seen more authoritarian rule—with some decrease in citizen’s liberties—in countries like the Philippines, Turkey, Hungary, Brazil, and Belarus. And a lot of people would argue that the American administration of Donald Trump was becoming, or at least trying to be, more authoritarian. For example, it treated the Justice Department, which is supposed to be independent of the Executive Branch, as a bunch of lawyers working for the President. And President Trump was willing to turn local law enforcement, and if necessary the U.S. military, against peaceful protesters who opposed his policies and actions. In other words, he denied their right to free speech but then, later, after he lost the election, he instigated a massive riot against the U.S. Capitol in an effort to keep himself in power despite having lost an election that all sane officials knew to be fair and legitimate. Those actions suggest a view that the right to free speech and assembly, not to mention

8

See Rasmussen Reports, “65% See Gun Rights as Protections against Tyranny,” Rasmussen Reports ( January 18, 2013; https://www.rasmussenreports.com/public_content/politics/ current_events/gun_control/65_see_gun_rights_as_protection_against_tyranny). 9 For discussions by philosophers who share this sense of implausibility, see, e.g., Jeff McMahan, “Why Gun ‘Control’ Is Not Enough,” New York Times, Opinionator blog (December 19, 2012; https://opinionator.blogs.nytimes.com/2012/12/19/why-guncontrol-is-not-enough/) and Firmin DeBrabander, Do Guns Make Us Free? (New Haven, CT: Yale University Press, 2015), pp. 89–90. For a probing and balanced discussion of this issue, see Dustin Crummett, “Freedom, Firearms, and Civil Resistance,” Journal of Ethics 25 (2021): 247–266, at 250–255.

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the rights to vote and have one’s vote counted, are contingent on supporting him in particular. That’s very authoritarian and anti-democracy. And I say this as a Republican, a moderate Republican for whatever that’s worth. Sandy: It’s worth a lot! I take it your big-picture point is that, when we discuss the gun-rights argument that appeals to freedom from tyranny, we shouldn’t be over-confident about this particular freedom in the U.S. in the near future. Pat: That’s right. Suppose the right-wing mob that stormed the Capitol had killed Vice President Mike Pence, as some of those people apparently wanted to do. Then he wouldn’t have been able to certify the election. Suppose more of the insurrectionists broke in, killed some other people, and intimidated members of Congress enough to prevent any transition to a Joe Biden Presidency from taking place. At first Trump might say that the measure is needed to look into doubts about the election. But, if could get away with it—which would become plausible if he managed to get the U.S. military on his side— he would not leave office. He’d keep only yes-men and yeswomen on his team and then the wheels of democracy could grind to a halt. Working with the Justice Department, and a cowed Congress, the President would chip away at voting rights to ensure that, if there ever were another election, he or his successor in the Party would win. Or, even if they lost, they would create an environment in which any election could be contested. At the end of the day, it would be “might makes right” and the tyrannical government would have enough might to stay in power. Sandy: That’s pretty scary and, I admit, less far-fetched than I originally thought. What about the Supreme Court? Pat: What about it? Trump got three of his picks onto the Court. Now six of the nine justices are conservative, and among them all but John Roberts are very conservative. Sandy: All true. But I still think your defense of this whole way of thinking—freedom from tyranny as a basis for gun rights— is on the wrong track. First, as terrible as the Trump mob storming the Capitol was, I still think it’s implausible that these people—along with other accomplices within the government—could have destroyed American democracy. Yes, the Supreme Court is quite conservative today, but they are serious about legal principles and I just can’t imagine any scenario in which they would agree that the election results

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should be ignored. After all, the election was not close either in terms of the popular vote or by electoral scoring. In fact, the Supreme Court rejected a bunch of frivolous claims advanced by Republicans of various states to question election results in those states. The Court was very principled in their responses and clearly worked on the side of election law and appropriate democratic process. Pat: Yes, you’re right about that and it’s a helpful reminder. But what if Congress caved and took the President’s side? Maybe the Administration plus the Congress would be too powerful for the Supreme Court to block. Sandy: To my mind, it’s still all too implausible. The military has a lot of senior brass who are proud defenders of democracy. I really can’t see the American military joining the side of an authoritarian takeover. And the international community would shun the U.S. But, of course, we are speculating about what’s possible and what’s impossible. I want to look at our issue from a different angle. Pat: What’s that? Sandy: Well, we’ve been talking about the possibility, or impossibility, of a tyrannical government in this country. But what was most frightening in early 2021 was not the behavior of the government. Sure, President Trump’s behavior was outrageous and so was the cowardice of those members of Congress who supported his lies and refused to hold him accountable for them by voting for his impeachment. But, remember, the Justice Department refused to pretend that Trump won, or might have won, the election; the Supreme Court was similarly principled; and plenty of Republicans at the state level and some in Congress broke ranks with their former leader. What was really scary was the armed mob that stormed the Capitol and the millions of citizens throughout the country who, in a cult-like fashion, seemed to ignore reality in embracing the most outlandish conspiracy theories and lies! Like the lie that the people who stormed the Capitol were actually Biden supporters pretending to be Trump supporters! So the idea that things would be safer if private citizens could be more heavily armed than they already are seems backward. It’s unfortunate, I’d say, that so many people who are capable of becoming so divorced from reality, and so willing to engage in insurrection to keep a wannabe autocrat in power, have firearms. And not just handguns; many of them have semi-automatic weapons

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with large ammunition clips. These people are much more dangerous than our government. At least as long as our government behaves in anything like the way we are familiar with: more or less respecting the Constitution. Pat: You make a good point. But many people still believe they have a right to freedom from a tyrannical government, and that a right to bear arms protects that first right. And, maybe it’s unlikely that the government would pose a serious threat of tyranny, but even a small chance that it would is worth taking seriously because a tyrannical government would be a major disaster!10 Compare the hypothetical situation in which there is a one-in-a-hundred chance that a massive meteor will smash into our planet: quite a scary possibility and worth taking seriously and trying to prevent if at all possible. Sandy: But how does citizens’ having guns really protect them against tyranny? Supposing what I believe to be totally unrealistic, imagine that a President and all the machinery of the federal government, including the military, decided to abolish democracy and citizens’ constitutional rights. Do you honestly think private citizens with arms could overpower or even defend themselves against the American military? Pat: No, but a well-armed citizenry could deter such governmental aggression by promising very high costs. The government might be confident of prevailing in the struggle but they would sustain an awful lot of casualties, which would make the turn to tyranny less attractive.11 Sandy: That might be true. But the idea of the entire federal government going rogue and stripping away citizens’ constitutional rights still seems wildly implausible.12 The best way to protect our rights is to be politically active, to exercise such Constitutional rights as voting, petitioning, assembling, protesting and engaging in civil disobedience when appropriate, communicating about moral and political ideas, etc. As imperfect as our political system is, it protects enough political liberties to ensure the continuation of democracy, as long as people

10 Crummett makes this point (“Freedom, Firearms, and Civil Resistance,” p. 253). 11 This argument is advanced in Straight, “The Right to Self-Defense against the State,” p. 45 and in Michael Huemer, “Gun Rights as Deontic Constraints,” Social Theory and Practice 45 (2019): 601–612, at 608. 12 Hugh LaFollette agrees (“Controlling Guns,” Criminal Justice Ethics 20 [2001]: 34–39, at 34).

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stay informed, vigilant, and politically involved. I came across a couple of scholars … [tracks down a note] who argued that, from 1900 through 2006, nonviolent movements aiming at regime change succeeded more than twice as often as violent movements with the same aim.13 I found their analysis pretty persuasive. Anyway, I continue to think that arming more and more people might pose a greater threat to some of our basic rights than the speculative possibility of the U.S. government going rogue. In fact, I would put the point in terms of freedom: our country tends to become less free as more and more people own guns and carry them in public.14 Pat: How so? Sandy: Well, for one thing the realization that lots of people out in public might be armed can be very inhibiting. Suppose, for example, I went to a town hall meeting and wanted to present my views about gun control, views that are considered totally unacceptable to the NRA leadership and a lot of NRA members. The more people I believe to be armed at this meeting, the more afraid I will be that some nut job might shoot me rather than try to refute me. Pat: Another catchy rhyme, like that early one, “tons of guns”! Sandy: Yeah, tons of guns in public make me more afraid that some unhinged person will shoot me rather than refute me if he doesn’t like what I have to say. That makes me less free from fear than I would be if it were known that fewer people were carrying around guns—and it makes me less free to speak my mind. I have a right to free speech but its value, in actual practice, decreases if I’m afraid to speak because I know lots of people in the vicinity are packing heat. Pat: But I know people who think in almost an entirely opposite way. This might qualify as a cliché but the idea is that a wellarmed society is a polite society. I guess the idea is that, if one assumes that at least several people in the vicinity are armed, one is less likely to commit a crime. Sandy: That would make more sense to me if I thought everyone were rational. If they were rational, they wouldn’t shoot people for stupid reasons—like not appreciating what they’re saying in

13 Erica Chenoweth and Maria Stephan, Why Civil Resistance Works (New York: Columbia University Press, 2011), p. 9. 14 DeBrander defends this thesis in Do Guns Make Us Free? chapter 4.

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a debate. But, unfortunately, lots of people cannot be relied upon to refrain from violence, especially if they are drunk, or very angry, or afraid for some reason—which may or may not be a rational reason. So I think a society that is as well-armed as American society is today, especially when lots of people carry guns in public, works against our freedom in certain ways and increases our fear and inhibition. Pat: Maybe so, but I’m not sure. In any case, I’d like to turn to a somewhat different liberty-based appeal. Sandy: Sure, go ahead. Pat: I’m thinking of the ability of certain oppressed groups to exercise their basic liberties free from interference.15 It’s sort of a higher-order liberty or freedom: the freedom to exercise basic liberties where doing so is threatened by either part of the government or by a group of people. What I have in mind, mostly, is the way Black Americans have sometimes had their basic liberties interfered with so that being well-armed was essential to protecting their rights. In the years of segregation, many Blacks were killed by White supremacists through lynching and other forms of murder. But in addition to those atrocities there was often a sort of systematic intimidation of Blacks that incentivized them not to exercise certain basic liberties. For example, in 1957 a Black community in North Carolina requested access to a local swimming pool after some Black children had drowned in neighborhood swimming holes.16 The Ku Klux Klan responded to the petition by running intimidating “motorcades” through Black neighborhoods. After a leader in the local NAACP17 chapter, Albert Perry, was threatened, the organization’s president organized an armed watch to protect the threatened leader’s house. A motorcade that included the police chief approached the house, possibly with the intent of lynching Perry. But the watch fired on the motorcade, the Klansmen withdrew, and the city council terminated the motorcades. In this case, having firearms permitted members of the Black community to protect themselves—against the

15 For an illuminating discussion, see Crummett, “Freedom, Firearms, and Civil Resistance,” especially pp. 257–260. 16 I borrow this example from Crummett, “Freedom, Firearms, and Civil Resistance,” pp. 247–248. 17 National Association for the Advancement of Colored People.

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KKK and a police force whose chief sympathized with White supremacy. Sandy: That’s an impressive case but what about people like Martin Luther King, Jr. and John Lewis, who did so much great work for civil rights through non-violent protests? Don’t you think it’s better if people take peaceful means to defending their rights? Pat: That is the ideal but it hasn’t always been enough to secure people’s basic liberties. Here’s another example: In the ‘60s the U.S. government was hostile towards the Black Panthers, who were interested in protecting African Americans’ civil rights. Government officials’ awareness that the organization was armed definitely enhanced the Panthers’ ability to assemble and engage in lawful activities like keeping an eye on local police, providing free breakfasts to children, and running community health clinics.18 Sandy: Good point. These examples could be seen as falling under the topic of one of our earlier discussions: the right to self-defense and, more fundamentally, to physical security and maybe dignity. Yes, they could. At the same time, these cases involve particular Pat: oppressed groups being singled out and having their civil liberties, and sometimes their very lives, threatened just because of their group membership. Those people in North Carolina, in my first example, were picking on Black people in particular. That reminds me of another case, involving a member of different oppressed or marginalized group: trans individuals. Now, I don’t share the political left’s current obsession with gender and pronouns and all that, but obviously trans-gender people have the same basic rights as other people and should not be harassed or intimidated. I have a friend back home who shares an apartment with someone who is trans-female.19 One day a neighbor in the apartment right above them was playing music at an outrageous volume, so my friend’s apartment mate went upstairs and politely asked the neighbor to lower the volume. The neighbor proved to be a vicious bigot, saying something like “It is unfortunate that weirdos and perverts

18 For background, see Richard Kreitner, “October 15, 1966: The Black Panther Party Is Founded,” The Nation (October 15, 2015; https://www.thenation.com/article/archive/ october-15-1966-the-black-panther-party-is-founded/). 19 Thanks to Avery Archer for suggesting that I include a story like this one.

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like you exist. I don’t want to ever see you again. In fact, you should hope that you never run into me in the future because I have a gun and know how to use it!” The woman was terrified and told my friend that she has encountered that sort of threat several times. She worries that someday she’ll be attacked just for being trans. Doesn’t she have a right to have a gun to protect herself? Sandy: It’s a very sympathetic case. It’s somewhat like the case we talked about last time where the woman with the abusive exfelt the need to have a gun for self-protection. I have nothing to add to our earlier discussion of self-defense as a possible ground for gun rights, but you’ve helped me see how that set of concerns overlaps with concerns about members of highly oppressed groups exercising basic liberties. Notice that in the case of the trans-female all she did was try to exercise her right to free speech—asking a neighbor to turn the music down— and she was subjected to a threat of violence. Pat: Well put. Now I’d like to turn to another argument, another appeal to a liberty right as a basis for gun rights. Sandy: Great. Which liberty right are you thinking of? Pat: The right to pursue one’s own passions or conception of the good life.20 Roughly, what the Declaration of Independence referred to as the pursuit of happiness. Sandy: Sounds good. Say more. Pat: Some Americans have a passion for gun-collecting. They are really fascinated with different types of guns, some of them quite old. They might have just a few guns in their collection or they might have hundreds. I suppose their reasons for this hobby differ, but a friend of mine who’s a collector likes them as a reflection of history. His family has been in the U.S. since the late 18th century and his collection reflects the history of firearms since the time the country was founded. Sandy: It’s interesting how people’s passions differ. I could not get excited about collecting guns but I understand how others might. But notice that having guns, in itself, isn’t dangerous to anyone. It’s only having guns that can be fired that can pose any threat to the gun owners or others who are around.

20 For a thoughtful exploration of this theme in connection with gun rights, see Todd Hughes and Lester Hunt, “The Liberal Basis for the Right to Bear Arms, Public Affairs Quarterly 14 (2000): 1–25.

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Good point. Probably some of these same collectors also collect ammo, though. In which case they’d be able to fire at least some of their guns. Sandy: I suppose that’s right. But is the interest in collecting guns, as a pastime or part of one’s pursuit of happiness, so important that people should be able to collect guns they can fire? Collecting itself has nothing to do with using the guns. Pat: That’s logical. But what if someone likes to collect both guns and the ammo that corresponds to them? Unless the guns are defective, the collector will be able to fire them. Sandy: Yes, but this doesn’t seem like a strong enough interest to ground a moral right to own the gun and a right to own the corresponding ammo. Or, if the liberty to pursue one’s passions does support both of these rights, it does not—in addition—support a right to fire the guns one collects. So maybe a moral right to collect both the gun and the ammo that works with it, if there is such a right, is consistent with a law that requires making the gun inoperable or maybe simply a law that prohibits using the gun. Again, collecting is different from using—and it’s only using guns that can pose dangers. Pat: That makes sense, Sandy, but remember the broad liberty we’re considering: freedom to pursue one’s passions. What if one’s passions include not just collecting, or owning, these guns and ammunition but also firing them? Maybe one enjoys using them for target practice or in a re-enactment sort of scenario, like a Civil War re-enactment. Sandy: Well, you can have elaborate re-enactment, with uniforms, models of Civil War era buildings, and whatever you like without firing the guns at or near other re-enactors, or even firing them by oneself. If you want to focus on the idea that firing guns might be part one’s pursuit of happiness, let’s consider target shooting, which is a fairly popular pastime. Pat: Yeah, let’s. I know a guy from my dorm who grew up in a Mennonite community in Pennsylvania. His family loved guns, not for self-defense—they were pacifists—but for some very practical purposes such as shooting pests on the farm, and hunting for food, also for target shooting. Shooting animals raises some issues of its own so, for the moment, I want to consider just target shooting for fun. He made such a compelling case for a right to engage in this sport. Everyone in his family was introduced at a young age to guns. They were taught to respect them and to treat them with the utmost Pat:

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care. He says they were never misused and no one—that is, no people as opposed to animals—got hurt because of them. By observing strict, clearly articulated rules, they kept the risks of accident to virtually nil. Everyone enjoyed target shooting. And they loved and respected the instruments: the guns and ammunition. It seems as if people like this family ought to be allowed to own guns and use them for target shooting. Sandy: That’s a very compelling portrait of your friend and his family’s relationship with guns. I can’t help wondering, though: Does anyone really need to own guns to enjoy target shooting? You can go to a shooting range and borrow, or rent, guns there just as you can go to a ski resort and rent skis. Pat: That is true. But I’m pretty sure my dorm mate and a lot of other people would be mystified by any prohibition of owning guns. They probably don’t want to shoot just any old gun they can borrow at a range. No doubt they like particular guns and grow fond of their own just as a car owner might love her car or a guitarist might be very attached to their particular guitar. Sandy: I can understand that. But guitars don’t hurt people. And, while cars often do, the number of automobile fatalities a year in this country—although nearly as high as the number of gun deaths— isn’t so high considering how many people drive and how much time they spend driving. Lots of people owning guns, even if most rarely or never use them, correlates with a lot of deaths and nonfatal injuries. And it’s hard to know which families will store and use them responsibly and which families won’t. Pat: But is it so hard? Maybe a family like my dorm mate’s could demonstrate that they’re to be trusted with guns: no background of felonies, no major mental illnesses, and passing a safety course if one is required. Sandy: Of course, your reasoning supports universal background checks on gun buyers … Pat: Correct, no real issue there …. Sandy: … and the possibility of a test or course requirement as a condition for buying and owning a gun. Pat: That does not seem excessive to me. It seems exactly parallel with getting a license to drive a car. You have to provide some evidence that you can be trusted to have a gun or to drive a car. Sandy: I certainly agree that passing a rigorous test of competence should be a prerequisite for owning a gun—but I’m still not sure we have a strong case for owning, as opposed to using,

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guns. I’m still uncertain some people’s interest in target shooting can’t be reasonably met by allowing them to shoot on ranges without owning the firearms they use. Pat: Of course, there might be some people who are interested in both collecting guns, which means owning them, and target shooting, which means being able to fire them. Sandy: Well, sure, but not everyone’s passions or sources of happiness can be legally protected. If someone’s delight were to lob hand grenades in the woods, or to shoot machine guns in his backyard, too bad. Grenades and machine guns are just too dangerous. Right now I’m a little on the fence as to whether some people’s interest in collecting guns and others’ interest in target shooting—and maybe some people’s interest in both—are sufficiently compelling to ground a moral right, or even an appropriate prerogative, to own and keep guns that can be fired. Maybe it depends on what sorts of regulations aimed at safety might accompany the right or prerogative. Pat: OK. Maybe we can return to the issue later. There is another liberty that strikes me as a very strong basis for gun rights: the freedom to hunt.21 Lots of Americans like to hunt or find some legitimate reason to hunt. Some people hunt for recreation—sport hunting. Some hunt to get animal products: meat, primarily, but sometimes other things such as fur. Then there are those who hunt, with official permission, to cull deer populations, which can grow too large especially when there are no natural predators around to kill the deer. Farmers and others sometimes shoot animals such as wolves or foxes that are a threat to their livestock. There are all sorts of reasons to hunt. And hunting has been an accepted part of American life since Colonial days … in fact, for as long as there have been people on this land, since Native Americans hunted for food and leather. Sandy: True. And I’ve noticed that some people who oppose private ownership of handguns do not oppose ownership of long guns—rifles and shotguns—which are more often used

21 For an overview of the ethics of hunting, see Angus Taylor, Animals and Ethics, 3rd ed. (Peterborough, ON: Broadview, 2009), chapter 4.

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in hunting.22 Also, since rifles and shotguns are larger than handguns, they are harder to carry and conceal and used less frequently in gun crimes. Pat: So, given the legitimacy of hunting, do you agree that it’s a basis for guns rights, at least a right to own long guns?23 Sandy: Actually, no. Despite the broad acceptance of hunting in American society—and maybe in every other country in the world—I am morally opposed to hunting. Pat: Why is that? Sandy: The truth is, I do not accept the traditional attitude that animals—more precisely, nonhuman animals—exist for human use, that they’re simply resources for our use and entertainment. Animals aren’t just things. They’re sentient, having feelings and their own interests, and for this reason they matter morally. Pat: I agree that animals matter morally—or at least many of them do. Wait, when you say animals are sentient, do you mean literally all animals? Even the most primitive invertebrates such as sponges and comb jellies? They don’t even have brains. And sponges are as stationary as most plants. Sandy: Fair. No, I don’t mean to imply to all animals are sentient and therefore have interests and matter morally. I mean many animals are sentient, including the ones we typically hunt, which are mammals and birds. They matter morally because they have their own consciousness and a quality of life. What we do to them matters morally because, in some sense, it matters to them—they can feel the effects of how we treat them, for better or worse. Pat: OK, I get that. In fact, it sounds like common sense to me. Animals—let’s agree to use the word as a convenient shorthand 22 Long guns, unlike handguns, are typically shot with the stock resting on one’s shoulder. Being much larger than handguns, long guns are more cumbersome to carry and harder to conceal. Among long guns, rifles differ from shotguns in having rifling—a pattern of spiral grooves cut into the barrel that causes the bullet to spin, increasing power and accuracy. Rifles are better than shotguns for long-distance shooting, especially with a stationary target. Shotguns are easier to aim and are effective at shorter-range shooting. Whereas rifles fire a single bullet with a shot, a shotgun fires a shell containing small pellets that spread out to cover more area, making them effective for hitting (shorter-range) moving targets. Shotguns are often favored over rifles for ordinary self-defense. 23 For an article that takes the legitimacy of hunting for granted in the gun control debate, see, e.g., Vincent Mueller, “Gun Control: A European Perspective,” Essays in Philosophy 16 (2015): 247–261.

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for “sentient animals”—matter morally. They’re not just things and resources for us. But that doesn’t mean we can’t use them for legitimate purposes. It’s just that we should take into account their welfare, or interests, and try to avoid cruelty or excessive harm to them. Sandy: Well put. But, if we take seriously the idea that they matter morally, I think that puts hunting into doubt. Pat: I find that counterintuitive. My grandpa taught me to hunt when I was in middle school. We hunted six or seven times together and shot deer, rabbits, geese, and some other birds. But we always ate the game we shot. Sandy: Why does it matter that you ate the meat of the animals? Didn’t you hunt for enjoyment? And is enjoyment a good reason for harming animals? PAT: Well, yes, we hunted for enjoyment. And for us hunting continued a kind of family tradition. Grampa often hunted with his dad, and I think previous generations in the family did as well. Also, there is a deeper sort of appeal, though it’s not so easy to put into words. When we hunted, we felt like we were participating in nature, in the natural order of things—that we were predators and our game were prey. Of course, if we didn’t kill the animals, they would have died sooner or later anyway—and maybe in a much slower and more agonizing way. To me it’s not so clear that our hunting made them worse off than they would have been if they had lived longer and died some other way. Sandy: You make a good point about the way they died. Dying by gunshot might have been no worse, or even better, than some other way they would have died later. But cutting off their lives means they didn’t get to continue their lives—with whatever goods those lives would have included … Pat: … or whatever bads, or harms, those lives would have included …. Sandy: Fair. But … I don’t know … it just seems to me really problematic to kill a deer, or a goose, just because hunting feels enjoyable, or continues a family tradition, or makes you feel like you’re part of nature. None of those benefits is really a need. So the harm to animals seems unnecessary. And I assume it’s wrong to cause unnecessary harm intentionally. Pat: Eloquently put. And the idea that we shouldn’t intentionally cause unnecessary harm seems like moral common sense. But one benefit you didn’t mention just now is food. We ate the venison, the goose meat, etc. Clearly, we need to eat.

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Sandy: Of course, but you don’t, and didn’t, need to eat game that you stalked and then shot down. Pat: No, we didn’t. But the meat people normally eat, in our society and other industrialized countries, comes from farms— usually, large industrial farms … so-called factory farms. And animals’ lives in factory farms are probably much worse than most wild animals’ lives. So, if it’s OK to eat meat from factory farms, how can it not be OK to eat flesh from animals who probably had much better lives than their counterparts whose flesh is sold in grocery stores? Sandy: Really good point. You are right that hunting is less harmful to animals than forcing them to live in factory farms and die in slaughterhouses. But I am totally opposed to factory farming. And opposed to slaughterhouses like the ones that exist today, which are extremely inhumane. The reason I oppose them is that they violate the idea that we shouldn’t harm unnecessarily. And it’s not just that they cause some unnecessary harm; they cause massive unnecessary harm, so much so that any honest assessment of them would describe them as cruel. If you don’t believe me, I can point you to some sources.24 Pat: I do believe you. I’ve seen some video footage of conditions in factory farms and slaughterhouses. Also, I’ve read how animal husbandry today is one of the top drivers of climate change.25 So, yeah, factory farms cause a lot of harm. And it would be a tough sell to argue that it’s all really necessary. Necessary to maximize profits, maybe, but not necessary in a deeper, morally significant sense. Factory farming is a big moral problem, maybe a problem that persists only because not enough people have any vivid sense of how bad the conditions are for animals. OK, so how does this relate to ethics of hunting? Sandy: Well, since we can’t seriously defend the ordinary way of producing meat today, we can’t say hunting is OK just because it’s better than the ordinary way. Maybe neither factory farming nor hunting is morally acceptable.

24 See, e.g., Peter Singer and Jim Mason, The Ethics of What We Eat (Emmaus, PA: Rodale Books, 2007), Part 1 and Gail Eisnitz, Slaughterhouse (Amherst, NY: Prometheus, 1997). 25 See, e.g., Gowri Koneswaran and Danielle Nierenberg, “Global Farm Animal Production and Global Warming: Impacting and Mitigating Climate Change,” Environmental Health Perspectives 116 (2008): 578–582.

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That is a consistent view but I don’t think I can buy it. I just don’t think it’s wrong to eat meat. Morally, we should try to make sure that we don’t subject the animals whose flesh we eat to excessive harm. So I think traditional animal husbandry, which gives farm animals much better lives overall, and hunting are morally acceptable. Animals matter, in my book, but they don’t matter in the same way as people do. People have moral rights. I doubt animals do. Or, if we can say they do, we should say they have weaker rights. Animals matter but people are special.26 And there’s nothing wrong with people eating animals for all the nutritional benefits they can get …. Sandy: But you can have a healthful diet as a vegetarian, or a vegan. Plus, nothing I’ve argued rules out fishing for food, and it’s easy to have a healthful diet while abstaining from farmed animal meat but eating fish and invertebrate seafood like shrimp and scallops. So you don’t really need to eat the flesh of cattle, pigs, and fowl for nutrition. Pat: I suppose that’s right, but the more types of meat you abstain from, the harder it is to get all the nutrition you need, to really enjoy your meals, to have a broad selection at restaurants, and to avoid social awkwardness when eating at friends’ houses or large family gatherings. These interests are not trivial and I think they add up to enough justification for meat-eating, with the qualification that we try to get it from humane sources. Anyway, whatever we may think about eating food that comes from grocery stores and ultimately from farms, I stand by the idea that hunting for meat is acceptable. It’s not cruel or excessively harmful. Sandy: Are you sure it’s never cruel? Think about what it must be like to be a deer stalked by hunters. Think of the fear the deer experiences. And then imagine being shot and, if the shot isn’t perfect, dying slowly. Even worse, imagine being a young deer and watching your mother getting slaughtered, and then having to go on, in fear, without her. Pat: Shades of Bambi! Pat:

26 For an elaboration and defense of this general way of understanding moral status, see Mary Anne Warren, Moral Status (Oxford, UK: Oxford University Press, 1997).

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Sandy: Yes. While Bambi is fictional, the story reminds us that deer are animals with emotional lives.27 Some of the emotional pain caused by hunting must be truly awful. Pat: You make a good point. At the same time, a doe or buck will go through similar distress if their mother—or maybe any immediate family member—is slaughtered or dies in some other way such as starvation. I don’t see that hunting makes things worse for them. Sandy: I’m still doubtful that it’s justified. And, just so you know since we’ve never eaten together, I am pesca-vegetarian: I eat fish and other seafood like shrimp but not meat that comes from land-based farms. When I was a mainstream meat-eater, as I was until sophomore year, my visceral opposition to hunting was inconsistent with my dietary ethics. Now I’m more consistent. Anyway, what do you say we agree to disagree on whether hunting for food is justified? By the way, I think hunting for food when a person doesn’t have other viable food options is justified because it qualifies as necessary harm. But most American hunters today can eat fine without hunting. Pat: OK, we agree to disagree on hunting for food. But there are all these other reasons to hunt: to keep predators away from a farm, to cull deer when there are too many for them all to survive, and so on. To quiet concerns about factory farming, let’s picture someone who has a humane farm. Suppose he or she is a sheep farmer and the sheep are treated humanely. But there are wolves in nearby woods and, naturally, they like to devour sheep. Sometimes there is no better way to protect sheep than with a long gun. Sandy: Why? Can’t good fencing get the job done? Pat: Not always, according to what some friends back home have told me. And fences don’t scare wolves away. So, if they smell the prey, they can lurk around. A long gun can take care of that problem. Sandy: I see. Back to the idea of culling deer, that’s one of the more popular justifications for hunting. I guess, because it appeals to

27 On the emotional lives of nonhuman animals, see, e.g., David DeGrazia, Taking Animals Seriously: Mental Life and Moral Status (New York: Cambridge University Press, 1996), chapter 5; Jaak Panksepp, Affective Neuroscience (Oxford, UK: Oxford University Press, 1998); and Mark Bekoff, The Emotional Lives of Animals (Novato, CA: New World Library, 2007).

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the deer’s interests. But I doubt it’s in the interest of the deer who is shot to be culled! Pat: It might be in their interest, if dying that way is easier than dying in another way such as slowly starving to death. Sandy: True. But why does there have to be a violent solution to reducing a deer population when it’s grown too large? It’s also possible to sterilize deer. They can be rendered unconscious with a dart and then surgically sterilized. There are also other methods, such as something called “porcine zona pellucida,” a vaccine that prevents fertilization from occurring for several years.28 With methods like these available, I don’t see any justification for blowing deer away with a gunshot. Sometimes I think the culling idea is just a rationalization for sport hunters to get off on slaughter. Pat: Hey, that’s pretty insulting! I get that you’re not interested in going hunting. And I get the animal-protection ethic that leads you to very strict principles about how we can treat animals. But don’t assume that all hunters are sadists or even that most are. They have a way of life, they love and respect animals, but they also typically don’t think animals have a right to life. And methods like surgically sterilizing deer are expensive and difficult to implement. I’m convinced that all the reasons for hunting for culling purposes—plus other reasons to hunt—for food, to protect against predators—add up to a justification for at least some hunting practices that require guns. So I submit that a right to hunt with guns means there’s a right to own guns, at least long guns. Sandy: We’re not in complete agreement, of course. And, sorry, I didn’t mean to be insulting in the way I described sport hunters. Anyway, I’m still not sure that the purposes offered to justify hunting really do so in the end. If some of them do, and they require long guns, then it looks like those purposes support a prerogative to own such weaponry. Maybe it adds up to a moral right but, if not that, then maybe an appropriate prerogative or privilege for some people. Pat: So where does that leave us?

28 See Allen Rutberg, Ricky Naugle, John Turner, et al., “Field Testing of SingleAdministration Porcine Zona Pellucida Contraceptive Vaccines in White-Tailed Deer (Odocoileus virginianus),” Wildlife Research 40 (2013): 281–288.

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Sandy: Partially in disagreement, but partially in agreement. I don’t believe that any of the appeals to liberties is so strong that it’s a slam-dunk basis for a right to private gun ownership. Note that I’m setting aside the arguments you made about members of certain oppressed groups needing guns to protect their exercise of basic liberties—good stuff but I’m thinking of that in terms of self-defense, which we found last time to be a fairly promising ground for gun rights. I have some sympathy for the appeals to certain people’s interest in collecting guns—not necessarily to be able to fire them—and in target shooting, but not necessarily to own guns. I am skeptical about the right to hunt while noting that my hesitancy has a lot to do with my strong animal-protection ethic, which is still a minority view in this country. I’m somewhat sympathetic to a possible need to hunt to protect farm animals from predators and to cull certain wild animal populations if there really is no other way to reduce populations. Maybe some of these interests justify allowing certain private individuals to own firearms but I stress “maybe.” I believe there is a stronger case for such permission in the case of those who can show that they have a special need for a gun for self-defense, as we discussed in an earlier conversation. If I understand your point of view, you believe that all of these interests support gun rights. That includes a right to own a gun for sport hunting, something I strongly oppose. Pat: Yes, you got me right. Except that I’m not sure some people’s interest in target shooting supports a right to own guns. On the other hand, since I think various interests support the right to own guns, my position would probably allow ownership in this case, too—but contingent on taking and passing a safety course. And I think there’s definitely a moral right to own guns—at least given certain needs or interests— whereas you seem to think more in terms of an appropriate privilege. Before we conclude our discussions about gun ethics, maybe we can clarify whether our difference on this point is significant or just a semantic difference about preferred terminology. Sandy: Yes, let’s try to work that out later. I’ve got to run. Next time I’d like to talk about other moral rights that I think are important to the ethics of gun policy. Pat: What other moral rights?

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Sandy: I’m thinking of rights not to be harmed in certain ways and a right to a safe environment. Pat: Sounds good to me, although the so-called “right” to a safe environment … well, I’ll need some convincing that there is such a thing. Sandy: Sure, I’ll try to convince you. Can you be here next week at the same time? Pat: I can and will be. See you then!

Dialogue 5

Do Other Moral Rights Strengthen the Case for Substantial Gun Control?

Setting: The usual meeting place, where Sandy sips a double espresso while poring over handwritten notes. Pat arrives, with a green tea and loaded backpack, and sits across from Sandy. A barista walks past and greets the two, who have established themselves as coffee shop regulars. You’re going retro again [pointing to Sandy’s notes while pulling out a laptop]. Nothing wrong with that! Sandy: Yeah, I feel like there’s such a thing as looking too much at screens. Sometimes it’s nice to do stuff without an electronic device. Pat: Absolutely. Let’s see … last week I think we agreed to talk about other rights that are relevant to gun control—I mean, other than rights tied to self-defense and liberty rights. You had some other rights in mind. You want to start us off? Sandy: Sure. [Pauses to gather thoughts.] The strongest argument for gun rights, as I see it, is the appeal to self-defense, which we talked about a few weeks ago. For the sake of argument, I’d like to grant that there is some sort of right to own guns that derives from a right to self-defense and, ultimately, from a right to physical security—and possibly also, as we discussed, from a dignity-based right. Pat: So you’re finally admitting that there is a moral right to own guns? Sandy: For the sake of argument. I want to see how things look if we grant that right and then, keeping in mind that rights are bounded—or limited—by other rights, consider other rights that need to be considered in a discussion about guns. Pat: Fair enough. Remind me, since I don’t quite remember from last week: what other rights do you think are important in considering gun rights and gun control?

Pat:

DOI: 10.4324/9781003105404-5

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Sandy: I’m thinking of everyone’s right not to be shot [glances down at notes] and, more generally, their right to reasonable safety, plus children’s right not to be harmed by gross negligence. Pat: It sounds weird to say there’s a right not to be shot. Sandy: Yes, it does. But I’ve been thinking about that and it also sounds weird to say everyone has a right to walk on public sidewalks. Yet people do have that right. I think speaking of rights not to be shot and to walk on public sidewalks sounds weird because no one ever feels the need to mention them— they’re so obvious. Except when they’re not! I have sometimes heard people of color talking about their right to walk around in public—and therefore on sidewalks—when White racists were treating them as if they didn’t have such a right. And, in the context of the Black Lives Matter movement, it would make sense to mention that Black people, like everyone else, have a right not to be shot. But I, personally, have never felt the need to assert my right not to be shot or to walk on sidewalks, and maybe you haven’t either. Pat: I haven’t, which is why speaking of a right not to be shot or to walk on sidewalks sounds a little weird to me. But it sounds less weird given the points you just made about how these rights are sometimes violated or threatened, which makes them sort of jump into relevance. Sandy: That’s a nice way of phrasing it. To continue, as I think about it, the right to walk on public sidewalks is based on a more general right to freedom of movement and maybe other rights such as the right to work—since you might have to walk on sidewalks to get to work—and a right to pursue one’s vision of the good life, which might include exercise. Meanwhile, the right not to be shot derives from rights not to be assaulted, and not to be killed, also a right to bodily integrity—all of which seem to derive from a right to physical security and probably also autonomy rights. When a person is shot, they are not only physically harmed but also their autonomy is disrespected—at least that is true of individuals mature enough to make autonomous decisions. But I’ll put the stress on the basic right to physical security since that’s also the strongest basis for gun rights. Pat: Right … sorry, that sounds like I was trying to pun. Maybe I should say “correct” when we’re talking about rights. Sandy: Let me be more precise, though. There isn’t an absolute right not to be shot. It’s something like a right of innocent or

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nonthreatening people not to be shot. If you’re trying to kill an innocent person, for example, then you are not innocent— instead you’re a grave threat—so, at least in that context, you forfeit your right not to be shot if shooting you is a reasonable response to the danger you pose. Something like that. Anyway, I’ll speak of the right not to be shot, without adding the qualifications, and I’ll do the same with the other rights we talk about. Pat: Understood. Setting aside all the qualifications will make it easier for us to discuss the matter. OK, so people have a right not to be shot. Why is that important to gun rights or gun control? Sandy: Well, rights have to be supported. They’re no good if they’re just abstract entitlements. For example, let’s assume Granny has a right to vote. But imagine that voting by mail is prohibited in her district and that, because she’s physically disabled and has no means of transportation, she can’t actually vote. In this case, her right to vote is practically meaningless. Sure, she has the legal right to vote but she can’t actually exercise it. Her right to vote has no value to her, or to her democracy, if she’s unable to cast a ballot. A philosopher, Henry Shue, put the point really well [looks down at a page]: “A proclamation of a right is not the fulfillment of a right, any more than an airplane schedule is a flight.”1 Pat: Your argument provides a very good reason to allow voting by mail. Sandy: Yes, it does. It’s also good reason to allow early voting, to make sure there are enough voting stations so that people aren’t deterred by excessively long waits in line, and so on. Anyway, back to the right not to be shot. Society, acting through the government, needs to take reasonable measures to support this right. To make a point that isn’t too controversial, the government should prohibit terrorists, violent felons, maybe gang members, and others who we have good reason to think can’t be trusted with guns from owning them. Pat: Yes. Even gun enthusiasts who are a lot more pro-gun than I am almost all agree that certain people, besides children, should not be allowed to own guns.

1 Henry Shue, Basic Rights, 2nd ed. (Princeton, NJ: Princeton University Press, 1996), p. 15.

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Sandy: OK, but then there need to be effective background checks on all gun buyers and there need to be effective ways for law enforcement to prevent gun trafficking. But we can save policy details for next time, assuming we want a whole discussion on policy options. We’re still working on basic ethical ideas. Pat: We are. Is the logic of this reasoning about the right not to be shot any different from how you think about what you call a right to reasonable safety? Sandy: No, the logic is the same. The right not to be shot can be thought of as part of a more general right to reasonable safety or to a reasonably safe environment.2 Pat: Is there really a right to safety? No society, no government, can keep its citizens perfectly safe, so they can’t have a duty to do so. I assume you can’t have a duty or obligation to do what’s impossible! Well, then, no duty on the part of society means no right on the side of individual citizens. Sandy: But society does have an obligation to take reasonable measures to ensure the public safety. It can’t guarantee that everyone will always be safe and not fall victim to violence or other threats to their security. To take an example, society—acting through the government—cannot prevent a branch from falling on your head as you walk outside, of course not. But the government can take reasonable measures to keep people safe and it should do so. For example, the national weather bureau can issue warnings to stay indoors during a hurricane or tornado—that would be a reasonable measure but, of course, not a guarantee because a tree might smash through someone’s house and people might disregard the warnings anyway. The flip side of society’s duty to take reasonable measures to promote public safety is individuals’ right to a reasonably safe environment. Pat: It all seems abstract and, frankly, I’m not sure I buy it. For one thing, I’ve never heard of such a right. The rights I’ve heard about are rights to things like life, liberty, property, the pursuit of happiness or one’s own vision of the good life.

2 For an argument in favor of a right to a safe environment—with an emphasis on contamination and pollution—see James Nickel, “The Human Right to a Safe Environment: Philosophical Perspectives on its Scope and Justification,” Yale Journal of International Law 18 (1993): 281–295.

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Sandy: Those are classic rights and are usually construed as negative rights—rights of noninterference. But notice that the goods these rights protect—such as your life, your property, your ability to do things you find satisfying—are all threatened by a lack of safety. A tornado that kills you doesn’t violate your rights, because only people—or as we said in my ethics class, moral agents—can violate rights, but it takes away the precious thing your right is supposed to protect: your life. Same with a tornado that destroys your house, ruining your property and interfering with your life projects. Pat: True enough. Sandy: And rights theories in the past half century or so have increasingly asserted positive rights to such things as food, shelter, access to health care and education, things like that. A right to shelter would promote safety. And people are increasingly explicit about public health being an arena in which rights share the stage. Pat: Not a bad metaphor! Sandy: Thanks. The Food and Drug Administration promotes public health by trying to ensure that foods and medicines are safe before they reach the market. Many laws promote safety by making it illegal, for example, for people to own lions or bears, much less let them walk around outside. The Environmental Protection Agency is charged with promoting public health and works to try to keep the air we breathe and the water we drink clean enough to be safe. The Federal Highway Administration coordinates with states to try to make car transportation reasonably safe. All sorts of federal and state laws—including speed limits and seatbelt laws—work towards the same end. So I really think it makes sense to say that, just as society—through the government—has a duty to promote a reasonably safe environment, individuals have a right to such an environment. An environment that isn’t overly polluted or populated by massive carnivores like lions or littered with working land mines. Pat: I get the idea. Come to think of it, the very existence of a police force and military promotes public safety. Same with the Department of Homeland Security. It would be weird to deny that a government ought to provide such forces, at least the police and military; even the most right-leaning libertarians wouldn’t deny this. It’s unclear that there would even be a government, or civil society, without some basic protections for citizens. But I’m confused about something.

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Sandy: What’s that? Pat: If there is a right to a reasonably safe environment, it would seem to be a positive right, a right to whatever measures are needed to make the environment reasonably safe. But isn’t it true that negative rights take priority over positive rights? For example, my right not to have my clothes stolen is a negative right, and even if a homeless person has a right to clothing— let’s assume for argument’s sake—that doesn’t mean he can steal my clothes. He can ask me for some clothes but he isn’t allowed to steal them, violating my negative property right to my clothes, in the name of his right to have clothing. Sandy: I agree no one should steal your clothes, even if I think we could do a better job helping homeless people get basic necessities like clothes. But how does this tie in to gun rights? Pat: Assuming gun rights are negative, wouldn’t they take priority over any positive rights such as a right to a reasonably safe environment?3 Sandy: Hmm, two thoughts. First, we haven’t worked out exactly what gun rights would include. The right simply to own a gun might prove perfectly compatible with a right to a reasonably safe environment if the gun is stored properly and other conditions are met. Also, I don’t think the right to a reasonably safe environment is so clearly a positive right. I mean, it appears to be a positive right if you look at it in terms of entitlement to certain measures being taken to make things safe. But it can also be seen as a negative right. It includes a right not to be shot—clearly a negative right. It also includes a right not to have undue risks imposed on one, which is also a negative right. A dangerously drunk driver imposes undue risks on me if I’m driving nearby, thereby violating my negative right not to be subjected to undue risks. So, it seems to me, the right to a reasonably safe environment straddles the distinction between positive and negative rights.4

3 Lester Hunt makes this claim in “The Case Against,” in David DeGrazia and Lester Hunt, Debating Gun Control: How Much Regulation Do We Need? (New York: Oxford University Press, 2015), p. 84. 4 Indeed, some philosophers argue that distinguishing between negative and positive rights is somewhat misleading and that it is more helpful to distinguish among types of duties that correlate to rights. See Henry Shue, Basic Rights, pp. 51–55 and Jeremy Waldron, Liberal Rights (Cambridge, UK: Cambridge University Press, 1993), p. 25.

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Wow, you’re pretty good at analyzing concepts. Maybe you should go to grad school in philosophy! Sandy: Yeah, right. Pat: So where are we? Sandy: The key point I’d emphasize now is, if people have a right to own guns, then, like other rights, it’s not unlimited. Rather, it is bounded by—it has to be compatible with—everyone’s rights to a reasonably safe environment. That would explain why individuals can’t own nuclear weapons, even if they could get them, or hand grenades, major explosives, and so on. Ownership of such weapons is just too dangerous. So, there needs to be some reasonable reconciliation of gun rights, assuming there are some, and public safety. That sets the stage for a lot of limitations on the kinds of firearms one can own, who can acquire them, how they have to be stored, and so forth. Pat: Yeah. Speaking of how guns should have to be stored, you probably heard about that recent incident in which a 15-year-old got hold of his parents’ semi-automatic pistol, which they didn’t bother to store safely, and used it to kill four other kids at his high school. 5 It’s unbelievable that there are no federal requirements for safe gun storage in households with minors. Sandy: You’re preaching to the choir. Pat: We can certainly agree on some gun control measures that are needed on the federal level since they’re too important to leave up to states. Anyway, you mentioned a right of children in particular. Sandy: Yes, a right not to be harmed by gross negligence. Suppose a toddler gets violently sick because his parents left him alone with liquid bleach and cups on the floor. Or suppose they leave broken glass all over the basement floor and let him play alone down there—with predictable results. In these scenarios the parents harm the child with their negligence. The same would be true if they made it easy for him to handle a gun and he shot himself. Maybe, in addition, society or the government Pat:

5 The incident Pat mentions is similar to one that occurred in Michigan in 2021. See Amir Vera, Taylor Romine, Kelly McCleary, and Mallika Kallingal, “Authorities Look for Motive with 15-Year-Old Michigan High School Shooting Suspect in Custody. Here’s What We Know,” CNN (December 4, 2021; https://www.cnn.com/2021/12/01/us/ oxford-high-school-shooting-what-we-know/index.html).

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would have violated the child’s right not to be harmed through negligence by failing to require safe storage or safety locks. Pat: OK, so gun rights can’t be so expansive in their scope that they contradict, or violate, these other rights you’re talking about.6 But I’m puzzled about something. We’re now saying a child has a right not to be harmed by gross negligence. And everyone, including the child, has a right to a reasonably safe environment and, more specifically, not to be shot. But we’re also assuming, at least for the sake of discussion, that law-abiding adults have a right to own guns. Well, the child’s right and his parents’ right are in tension. How do we know the child’s right wins out in a conflict? Why couldn’t we say the parents’ gun rights should win out? Consistent with what I said a moment ago about the lack of federal regulations requiring safe storage, it seems very intuitive to me that the parents should store their gun safely. But when rights bump into each other, how do we work out the conflict? Sandy: Great question, and one I was mulling over this past week. Here’s what I came up with.7 Let’s say Alysa is a young child in such a case and Fred is her dad. Alysa has a right not to be harmed by gross negligence. Fred has a right to own a gun. Let’s imagine Fred really hates gun regulations and wants to be able to leave his gun lying around the house—with the effect that Alysa could get her hands on it. Fred might have an interest in being able to leave his gun wherever he feels like but he doesn’t have a right to do so. His right is to own the gun and, if necessary, use it appropriately for defense. He can own his gun while having to store it properly. So Alysa’s right wins out over Fred’s interest to be casual about where he puts the gun. Rights trump mere interests—interests that are not also rights. Pat: That sounds sensible. But gun advocates might claim that their gun rights aren’t limited to owning guns—or even using them appropriately. These people generally think they have a right to carry their weapons wherever they go and they might also claim that they have a right to leave them wherever they want 6 For defense of the idea that the scope of rights can be specified to avoid, or minimize, conflicts among rights, see Hillel Steiner, An Essay on Rights (Oxford, UK: Blackwell, 1994). 7 Here, I borrow from David DeGrazia, “The Case in Favor,” in DeGrazia and Hunt, Debating Gun Control, pp. 217–220, a discussion that was influenced by a conversation with Joseph Millum.

Do Other Moral Rights Strengthen the Case for Gun Control? 93

in their own homes. So what do you say to someone who asserts that his gun rights include a right to keep their gun however they please as long as it’s on their property? Sandy: I’d say they’re wrong. There are two issues here about rights: whether, in fact, there is a particular right that some people claim and, if so, second, what the right includes. Here we assume Fred has a right to own a gun. The second issue, about the scope of this right, has to take into account other rights. Well, other rights include Alysa’s rights not to be shot, not to be harmed by gross negligence, and so on. Yet those rights are seriously threatened by a super-broad understanding of gun rights that would allow Fred to leave his gun within easy reach of his young daughter. Of course, the scope of Alysa’s rights has to be compatible with her father’s right to own a gun—but a requirement of safe storage, which protects her rights, is compatible with his owning a gun, as we already noted. One more way to think about it is in terms of the costs to Alysa and Fred of going one way or the other in deciding about Fred’s options concerning the gun. If Fred has to store his gun safely, the cost to him is minor inconvenience. If Alysa has to live with the danger of being able to get her hands on Fred’s gun, she faces a modest chance of being seriously injured or killed. Even a modest chance of that sort of outcome is a high price to pay, intuitively a lot higher than the minor inconvenience Fred faces if he has to store his gun. So balancing the two interests at stake favors Alysa’s interest in safety. That idea is consistent with the thought that Fred’s gun rights simply do not include a right to place the gun wherever he feels like in his home, at least as long as his daughter is a minor. Both father and daughter here have rights but restricting the scope of the gun rights in a commonsensical way eliminates any major tension between the rights. Understood plausibly, Alysa’s right to reasonable safety and Fred’s gun rights are perfectly compatible. Pat: I have to agree and I think this reasoning makes a really strong argument for safe storage requirements for guns in homes that have young children. Sandy: Yep. And generally, this way of thinking justifies a lot more safety measures and limits than the more vocal American gun enthusiasts seem prepared to accept. In fact, these pro-gun people don’t seem to accept any new regulations! I find their rigidity about new regulations astonishing.

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They’re afraid of a slippery slope. They think, if you allow the federal government to pass additional gun restrictions, that step might lead us down a path to eventually banning and confiscating all privately owned guns. Sandy: That’s nutty. I can’t think of a single major politician or member of Congress who favors such a drastic approach to gun safety. Pat: I agree that it doesn’t make sense. Obviously, we already have some gun regulations and instituting those did not push us down a slippery slope. But the NRA has been extremely effective in whipping up this sort of paranoia. Somehow the NRA persuaded much of its membership to buy lots of new guns before President Obama snatched them all away, despite the fact that he never even gestured in that direction and couldn’t have taken people’s guns away if he tried given Congress’ deference to the gun lobby and the Supreme Court’s judgment about the Second Amendment. Later, the NRA whipped up similar paranoia about President Biden. Sandy: Right. I’ve read some major polls over the years and, at a general level, they portray the American public as favoring both gun rights and more gun control than currently exists.8 The Federal Government—I mean Congress and the President— has generated a lot less gun safety regulations than the American majority wants. Here again we see the gun lobby’s power. It’s pure fiction to think the government is trying to ban guns but, even if some politicians tried to make it happen, it is basically unimaginable in the U.S. for the foreseeable future. Pat: Not only that. Some new, really commonsensical regulations—such as universal background checks and requiring parents of young children to store their guns safely or have safety features on them—seem likely to make a ban less attractive to

Pat:

8 See Emma McGinty, Daniel Webster, Jon Vernick, and Colleen Barry, “Public Opinion on Proposals to Strengthen U.S. Gun Laws,” in Daniel Webster and Jon Vernick (eds.), Reducing Gun Violence in America (Baltimore, MD: Johns Hopkins University Press, 2013): 239–257; Margot Sanger-Katz and Quoctrung Bui, “Where Experts and Public Agree on Limiting Gun Deaths,” The New York Times ( January 10, 2017): A3; Rachel Treisman, “Poll: Number of Americans who Favor Stricter Gun Law Continues to Grow,” NPR (October 20, 2019; https://www.npr.org/2019/10/20/771278167/ poll-number-of-americans-who-favor-stricter-gun-laws-continues-to-grow); Katherine Schaeffer, “Key Facts about Americans and Guns,” Pew Research Center (September 13, 2021; https://www.pewresearch.org/fact-tank/2021/09/13/key-facts-about-americansand-guns/); and “Guns” (a 2022 Gallup poll; https://news.gallup.com/poll/1645/guns. aspx; accessed March 17, 2022).

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those who might be open to one. Pass some laws that make guns safer and any argument for a ban seems less compelling. It’s like how the emergence of unions and minimum wage laws, which helped workers, arguably made the prospect of socialism less attractive to Americans on the political left. Sandy: I hadn’t thought of it that way. Well, we agree that the slippery slope argument against allowing new gun regulations doesn’t go anywhere. Pat: And getting back to the big picture, gun rights are compatible with a lot more gun control than the U.S. currently has. Sandy: But we still have the question of whether there really is a right to own guns and, if so, what its basis is. The strongest basis, again, seems to be the appeal to self-defense—and, ultimately, physical security. I say that because the appeal to freedom from a tyrannical government proved somewhat weak, the appeal to hunting is at least debatable, and the appeal to target practice points to a right to use guns for this purpose but not necessarily to own them. I guess collecting guns requires owning them but this interest hardly seems important enough to justify gun rights on its own—any more than an interest in collecting bombs is important enough to justify private ownership of them. So the appeal to self-defense seems more promising. This seems true whether we’re talking about self-defense in the case of a vulnerable individual like the woman with the abusive ex-husband, the man who has to walk regularly through gang territory, or certain members of oppressed groups such as Blacks whose civil rights are threatened by White supremacists. Pat: The appeal to self-defense does seem to be the strongest. Sandy: But there’s a lot of evidence suggesting that gun ownership doesn’t, on balance, promote physical security but rather decreases it. There might be occasions on which someone is safer owning a gun than not but, for the most part, it seems people are in general less safe overall if there are guns in the house— at least where gun regulations and enforcement are as lax as they are now in the U.S. We discussed this some weeks ago. Pat: We did. But we never got clear on whether, at the end of the day, your view is that no American has a right to protect herself and her family with a gun because, as a matter of current statistical averages, Americans in general are less safe, on balance, when they own guns. Or instead whether some people, who meet certain criteria having to do with whether they are

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safer having guns, have a moral right to own them. Here’s a reason against the argument that no one has a moral right to own guns because people are less safe with them on average: It’s like saying that, because a lot of people abuse alcohol and cause harm while drunk, those who can drink without harming anyone should have to abstain as well. That seems wrong. Sandy: But the situations with guns and alcohol aren’t really analogous. Most adults can enjoy alcohol without causing anyone harm. In fact, I would think that the vast majority of adults can drink, or have the option to drink—since some will choose to abstain— without posing any major threat to anyone. With gun ownership, it’s actually typical that having a gun in the home makes people less safe. Guns are so dangerous that a single encounter with one can easily be lethal—for example, if a young person is fooling around with his parents’ gun without knowing how to handle it safely. Alcohol is not inherently nearly as dangerous. Many deaths are connected with abuse of alcohol, when people drive or behave in other irresponsible ways while intoxicated, but the substance itself is not nearly as dangerous as guns are.9 Pat: I get the idea. But, at some point you’ve got to come down on whether people, or at least some people who meet certain criteria, have a right to gun ownership based on a basic right of physical security. And we also need to talk about how all these ethical reflections would translate into policy. Sandy: Yes, we do. We should devote a full discussion to policy issues. Next week? Pat: Yes, next week, same time and place. Let’s both try to do some reading and advance brainstorming on policy options so we can have a great discussion. Sandy: Good plan. I’m really interested to find out how much we’ll be able to agree on considering our different starting points. Pat: Me, too. See you next week! 9 For an especially probing exploration of analogies between gun ownership and alcohol use, see Donald Bruckner, “Gun Control and Alcohol Policy,” Social Theory and Practice 44 (2018): 149–177. Bruckner argues that if the strongest arguments for strict regulation of guns in the U.S. are successful, then so is a parallel argument for strictly controlling the availability of alcohol. Although I believe his argument founders on the claim that alcohol is comparably dangerous to guns, I am somewhat open to the possibility that we should require licenses contingent upon safety training—and perhaps a record free of alcoholrelated crimes—for the legal purchase and consumption of alcohol just as we have similar requirements for a legal right to drive automobiles. Whether society would accept such a policy approach and enforce it effectively is, to understate the point, another matter.

Dialogue 6

What Would Morally Justified Gun Policy Look Like?

Setting: Sandy and Pat converge at the line in the coffee shop. Sandy buys a blueberry muffin and tall decaf while Pat opts for a seasonal hot cider. As they find an empty table and settle in, Jan, the European exchange student they met once before, takes a place in line. I guess this will be the last of our brainstorming sessions about the ethics of gun policy. Over the next week and a half I have a couple papers due and two finals. Good thing we have just one more topic to discuss. Sandy: Just one more, ha ha! We only plan to cover the topic of morally justified gun policy today—no complexity there! Yeah, I know, it’s a massive topic. But we’ve been focusing on Pat: the ethics of gun ownership, and we’re not a couple of policy wonks. We can sketch some basic ideas without going into all the details. Sandy: Fair point. But I must say, I have done a lot of reading since we met last week. Pat: Me, too. I’ve been taking advantage of the assignments calm before the storm of finals. Sandy: Nicely put! Well, how should we begin? Pat: Let’s not bother validating federal gun regulations that already exist and we already agree on—like the fact that licensed gun dealers can’t sell firearms and ammunition to children. Despite our different perspectives on guns, you and I agree that federal legislation is too meager. The live question is what additional federal gun regulations would be ethically appropriate … Sandy: Right. Pat: … in the United States. That qualification matters because different legal regimes might be justified in different countries with their unique histories, cultures, and legal traditions. Pat:

DOI: 10.4324/9781003105404-6

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Sandy: Quite right. Why don’t we start by agreeing that, before anyone can buy a gun, they should be required to have a license— just as you need a license to buy or drive a car—and that getting a license is only possible following a background check. Pat: Right, a background check that determines whether the person who wants to purchase a gun is eligible or, instead, excluded due to a significant criminal or psychiatric history. Sandy: Yeah, and let’s be sure to talk about what the criteria of eligibility, or ineligibility, should be. It seems like some people who shouldn’t be able to buy guns legally currently can do so. Pat: Yes, we can get to that later. The important point for now is that we agree that there should be universal background checks. That’s just common sense, but currently it’s not the law. As we’ve talked about before, pretty much anyone can buy a gun at a gun show, or online, since these transactions require no background check. Sandy: Yes. This is low-hanging fruit as far as sensible policy changes go. Yet politicians lately have been speaking of “expanded,” rather than universal, background checks! They imply that the American gun lobby is so extreme and enough politicians are so beholden to this lobby that we can’t even reach for this most obvious policy improvement. Pat: That is sad and, frankly, it’s embarrassing to me as a Republican. The Democratic Party has been working to pass some very reasonable gun safety legislation for a really long time. But, even when they have a majority in both the House of Representatives and the Senate, they can almost never get bills to the floor because Republicans in the minority will filibuster, making a vote impossible.1 In my opinion, these Republican politicians do not represent the views of most Republicans, or most gun owners, but they represent the will of the National Rifle Association, which opposes all new gun legislation. This reflects a real problem in American democracy—the way in which well-financed lobbies serving special interests can overpower the will of a majority of Americans. It’s not very democratic.

1 A filibuster is a political procedure in which members of a legislative body, such as the U.S. Senate, prolong debate on a proposed legislative bill so as to delay or prevent a vote. In the Senate, votes from 60 of the 100 members are needed to end an ongoing debate and force a vote.

What Would Morally Justified Gun Policy Look Like? 99

Sandy: We’re in perfect agreement about that. And, while we also agree on universal background checks and needing a license to purchase and own a gun, I’m in favor of a much more drastic restriction that you might not be able to accept. I think the U.S. should follow the lead of many other high-income countries and require private citizens to demonstrate a special need for a gun as a condition of eligibility. Pat: That would be a drastic change. And even a lot of gun safety advocacy groups don’t call for anything like that. Sandy: They don’t call for it, probably, because they assume such a restriction is politically infeasible in this country in the foreseeable future. They’re constrained by politics and the need to raise funds, which means they can’t advocate for anything too controversial. If they did, they’d set themselves up for a major public relations backlash, which could dampen donations. The American political culture is so extreme in a pro-gun, anti-regulation way—even if less extreme than NRA leadership—that politicians and pro-regulation organizations have to hold back somewhat in calling for new restrictions. Pat: I remember we talked about how extreme our gun culture is in our first conversation. That European exchange student … what was the name? Jan [who was sitting about ten feet away and had been listening]: “Jan!” Sandy: Speak of the devil! How’re you doing, Jan? Jan: Oh, you know, a little stressed near the end of term, but basically fine. I recognized you two and had just started listening when, lo and behold, the European exchange student was mentioned! Yeah, when I talked to you briefly back in October I sort of emphasized how crazy American gun politics look from my perspective. But, after we talked a little, I became convinced that the optimal policy here doesn’t have to be just the same as the optimal policy in the U.K., Italy, Norway, or Poland. Anyway, I don’t want to interrupt but do you mind if I listen in? Pat: Sure, come over to our table. [Pulls out an empty chair for Jan, who sits down.] Sandy was pressing the point that our culture is heavily biased in favor of gun rights and against gun control. I remember being more or less persuaded by you back in October on that point. You gave a lot of examples. Sandy: But back then we didn’t even mention one relevant theme: how people who indefensibly shoot others so often get off the

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hook. I did some research on this, and here are three quick examples that really say something about the extreme pro-gun ethos in this country. [Looks up some notes.] First example2: An elderly man with Alzheimer’s disease got lost one day and arrived at the home of Joe Hendrix’s fiancée. The demented man rang the doorbell and knocked several times on the door. Hendrix’s fiancée called the police. But, instead of staying inside and waiting for the police, Hendrix grabbed his handgun, went out a back door, and circled around to approach the man. When the demented man walked towards Hendrix and was seen to be holding a cylindrical object—which was, in fact, a flashlight—Hendrix shot him dead. And, despite the fact that Hendrix had no reason to leave the house and confront the man, Hendrix was not charged with any crime! Pat: It’s unbelievable. Jan: We agree on that. Sandy: Here’s a second example.3 A Japanese exchange student and a friend identified the wrong house for a Halloween party. The Japanese student, dressed in a tuxedo, approached the house and said to the homeowner in the doorway “We’re here for the party!” The homeowner shouted “Freeze!” Possibly because the student thought he had heard “Please!” and understood the word as an invitation, he continued approaching. The homeowner shot him dead. Note how, once again, a person who lethally shot a nondangerous person could have simply stayed inside and no one would have gotten hurt. What’s most bizarre about this case is that a fair number of Americans would probably support the actions of the homeowner. Jan: That’s a frightening aspect of American culture. What’s your third example? Sandy: This is the well-known case involving Kyle Rittenhouse.4 This 17-year-old got his hands on a semiautomatic, AR-15 military-style rifle and crossed state lines to join a group of armed men who said they wanted to protect businesses from rioters who were protesting in Kenosha, Wisconsin against police 2 See Ray Henry, “Ga. Man Who Fatally Shot Alzheimer’s Patient Won’t Be Charged,” The Washington Post (March 1, 2014): A16. 3 This case is described in Garen Wintemute, “Guns, Fear, the Constitution, and the Public’s Health,” New England Journal of Medicine 358 (2008): 1421–1424, at 1421. 4 See, e.g., Glenn Thrush, “Rittenhouse Case Highlights the Nation’s Deep Division over Gun Rights,” New York Times (November 20, 2021): A1.

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brutality. Rittenhouse ended up fatally shooting two people and injuring a third but faced no consequences—except that many conservatives around the country labeled him a hero. It’s not just that he was acquitted of murder, citing self-­defense; the judge tossed out the charge of illegal possession of his weapon despite the fact that he was a minor. Pat: You know, the plea of self-defense might have been legit. According to what I read, Rittenhouse was attacked by one of the men he killed and the other was part of a crowd that was chasing him.5 But how strange that he was in a position to use a semiautomatic military-style weapon as a minor and get off scot free! Only in America, as they say. But why are you pushing these points about our country’s extreme pro-gun political culture? Sandy: Because I want to discourage the fallacy of thinking that if some gun regulation is politically infeasible in this country, it must be ethically unsound. It might be politically infeasible only because our political culture is so extreme. I’m warming up to make a strong case that demonstrating a special need for a gun should be a condition for getting a license. Pat: I see. Go ahead. Sandy: Let’s consider some other countries that require people who want a gun license to show they have a need for one.6 Australia has such a requirement and, interestingly, does not allow personal protection to count as a valid reason to get a gun. We talked about that in our first conversation when discussing how different countries have responded to gun massacres. Anyway, the same is true for its neighbor, New Zealand, as well as Japan and the United Kingdom. Pat: Well, if self-defense or personal protection doesn’t count as a genuine need for a gun in these countries, what does? Sandy: Apparently hunting, sports shooting, and gun collecting qualify. Meanwhile, in Brazil, Germany, Switzerland, Norway, and Israel, you have to show a genuine need for a gun and they

5 This account is supported in “Kenosha Unrest Shooting,” in Wikipedia (https://en. wikipedia.org/wiki/Kenosha_unrest_shooting; accessed May 31, 2022). 6 See Philip Cook and Kristin Goss, The Gun Debate: What Everyone Needs to Know (New York: Oxford University Press, 2014), pp. 118–120 and Jonathan Masters, “How Do U.S. Gun Laws Compare to Other Countries?” PBS Newshour ( June 13, 2016; https:// www.pbs.org/newshour/nation/how-do-u-s-gun-laws-compare-to-other-countries).

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accept personal protection as a genuine need. I think the same should be true in the United States. Jan: Wait, why? It’s well-known that in this country keeping one or more guns in the home makes it more likely that someone will die a violent death. How does increasing your chance of dying protect you? Pat: We discussed this at length one day when you weren’t around, Jan. Yes, it seems that in the U.S. today—when there are many guns and meager gun safety regulations—people living in households with guns have a higher chance of dying from gunshot, on average, than people in households without any firearms. This is true even if you set aside suicides, which account for most gun deaths, and focus on death by homicide: the odds are higher if you live in a house with one or more firearms. It’s also true of lethal accidents. But more extensive and better gun regulations could change this pattern. With greater screening of people who want to buy guns, fewer would get in the wrong hands, for example. Also, and maybe more important, the point we are agreeing on concerns averages. It’s definitely not about every individual. And some individuals are in situations where the chances of a mishap are low, and the chances of needing a gun for protection are high, so that these individuals could plausibly gain an advantage in safety by being permitted to own a gun. Jan: Why can’t they just call the police if they’re in trouble? The police have been trained to use guns. And, as professionals, they are accountable for what they do—at least in principle and, since the Black Lives Matter movement has made some progress, increasingly in practice as well.7 Sandy: You’re right that many people can do fine by locking their doors, being careful, and calling the police if they’re in a jam. But the reality is, not everyone is safe enough this way. There are people who live in situations where there isn’t enough police protection and maybe there is a menacing person who has not been prevented, by a judge or anyone else, from posing a real danger. People who are vulnerable in this way, if they have safety training and are qualified to pass a background check, seem likely

7 See, e.g., Jackie Menjivar, “Black Lives Matter Protests: What’s Been Achieved So Far” (https://www.dosomething.org/us/articles/black-lives-matter-protests-whats-beenachieved-so-far).

What Would Morally Justified Gun Policy Look Like? 103

to be a little safer with a gun. And, if they have children, they should be required to keep their guns safely stored, so the children can also be safer. That’s the basic thinking. Jan: OK, I see. Pat, I get the sense that you’re more enthusiastic about guns than Sandy. Are you OK with the idea that Americans should have to demonstrate some sort of special need to get a gun license? Pat: Not really. I’m more in line with the Supreme Court when it struck down the New York statute that required handgun owners to show a “proper cause” in order to get a permit to carry concealed handguns in public.8 Even if a right to carry is debatable, I still believe in a moral right to gun ownership that’s robust enough that one doesn’t have to demonstrate a special need. And I’ll bet most fellow Americans would agree. Sandy: Maybe, maybe not. Remember the public supports more gun safety legislation than Congress is able to pass.9 Pat: Sandy, you’ve convinced me that a requirement to show a special need isn’t crazy, even if I still disagree with it. But let me add this. If there ever is to be such a legal requirement, the accepted grounds will have to be reasonable. Personal safety is an important reason someone should be allowed to offer. I’d say the same about collecting, target shooting, and hunting. Also, some people’s jobs might be grounds for owning guns— say, if they work in law enforcement, the military, security, or espionage, and maybe if they work at a bank or as a bodyguard. Jan: OK, what are the grounds for owning a gun an applicant should be able to submit? I’m curious to see where there is agreement. First, personal safety, right? Sandy: Right. They might show that they live in a high-crime area with a heavy gang presence and have to walk to work. Or someone might argue that she’s afraid of her gun-owning, abusive ex-partner and has been unable to get a restraining order. A third person might make the case that as a trans- individual, he or she has been seriously threatened multiple times just for being trans- and lives where further threats seem likely. 8 New York State Rifle & Pistol, Inc. v. Bruen, 597 U.S. (2022). 9 Although requiring demonstration of a special need for a gun is assumed to be politically infeasible in the U.S. today, just under half of Americans surveyed in a New York Times poll actually supported such a requirement. See Margot Sanger-Katz and Quoctrung Bui, “Where Experts and Public Agree on Limiting Gun Deaths,” The New York Times ( January 10, 2017): A3.

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These are great reasons but now I wonder how stable this ground is: a very situation-specific need for self-protection. Why can’t someone just say he or she lives in a high-crime area, whether or not they need to walk to work through gang territory or whatever? In fact, I really don’t see why someone who lives in the safe suburbs shouldn’t be able to declare “I want to be able to protect my family in the unlikely event that someone is trying to break in—or to protect myself in case someone tries to hold me up at night when I’m outdoors.”10 Why not let any adult who isn’t excluded by criminal or psychiatric history buy a gun for protection? That broad permission seems more consistent with the idea that people have a moral right to gun ownership.11 That’s why I don’t like any “demonstrate special need” requirement. I realize we were considering what grounds should qualify if one has to give grounds, but now I’m doubting that a system that requires situation-specific grounds will hold up well and not seem very arbitrary. Sandy: We have found massive gun ownership to be highly correlated with gun violence—and gun availability is clearly a significant contributing factor. So the reasoning is: don’t let nearly every adult buy guns but only those who provide compelling grounds for needing them; let other people rely on their good sense and police protection. So, yes, there would be a burden of proof on the gun license applicant to show a special need. Is that consistent with saying there is a moral right to gun ownership? I think it’s consistent with saying there is a highly contingent moral right, one that only materializes under certain conditions. But, if not, then I am content to say that there are no moral rights to own guns but instead, for certain individuals in particular circumstances, there is an appropriate moral prerogative to own guns. Pat: We disagree to some extent but let’s move on. We agree that at least those people who can demonstrate a special need to protect themselves or their household members should be eligible for a license. Who else can claim a special need? Well, Pat:

10 Timothy Hsiao similarly argues that it is legitimate to have guns for protection even if the chances of having to use them are very small (“Against Gun Bans and Restrictive Licensing,” Essays in Philosophy 16 [2] [2015]: 180–203, at 197). 11 Ibid., at 183.

What Would Morally Justified Gun Policy Look Like? 105

definitely those with certain kinds of highly dangerous jobs where the danger involves criminals—as opposed to, say, precarious climbing or extreme weather. A moment ago I mentioned some examples of people who work in law enforcement, security, and so on. Sandy: That’s all sounds reasonable and we don’t need a precise list. We’re looking for a sketch of acceptable grounds. One is personal protection, whether at home or at work. Pat: Another is gun collecting. Sandy: I’d say collecting guns should only qualify as a “need” in the relevant sense if it is illegal to have the ammunition that corresponds to whatever guns one has. And the same idea applies to membership in gun clubs. People in the clubs can take an interest in each other’s impressive firearms without anyone being able to shoot them. Pat: Permitting possession of the guns but not the corresponding ammo might be hard to enforce, but it makes sense in principle. Jan: You two are making progress! Pat: Yes. OK, here is a third “need” or justification: target shooting. That’s a fun sport and one that, conducted properly, can be very safe. Sandy: But, as we discussed a while back, you don’t need to own guns to engage in target practice. You can go to a professionally supervised range. Pat: But what if you like certain rifles much more than others? Sandy: Then the shooting range can include lockers where you can store your own guns. If your only basis for a license is target practice, you shouldn’t be able to possess the gun outside of the shooting range. If you need it for some other reason, you can apply for permission using that reason. Jan: Maybe you two won’t be able to agree on every point. Pat: You’re right, Jan. Anyway, when it comes to minors, I’m comfortable with the idea that they would be able to do target shooting on a well-supervised range. They shouldn’t be able to have access to rifles at home, where they might not be supervised. Sandy, would you allow minors to do target shooting? Sandy: Yes, that can be perfectly safe—with adequate training and supervision. Owning guns is another matter and I would restrict that to adults. Meaning 21 or older. Pat: Handguns, as opposed to rifles and shotguns, are already restricted to those who are at least 21.

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Sandy: Only if they’re bought from a licensed dealer or at a gun show. Private sales are a different matter. You can buy a handgun from a private seller as long as you’re 18 and there is no age minimum for private sales for rifles or shotguns! Jan: Only in your country can a young child who has the money legally purchase a long gun. Pat: Yes, I know, it’s strange. But I want to think about the minimum age for those who are interested in hunting. Why shouldn’t 18-year-olds, who are old enough to vote, be old enough to buy guns and go hunting? Sandy: For one thing, voting isn’t inherently dangerous whereas shooting is! Guns are dangerous instruments. Drinking also involves signif icant risks, at least with some people, and I accept the current legal drinking age of 21. I f ind that very sensible for gun ownership—even for hunting rif les. Note also that, even though someone who’s at least 18 but not yet 21 can’t legally buy a handgun, outside of private sales, they can buy a far more dangerous military-style assault rif le because it’s a rif le! A lot of tragedy occurs because of this legal option. In 2022, for example, an 18-year-old, after killing his grandmother, slaughtered 19 young children and two teachers by gunf ire at an elementary school in Uvalde, Texas—just ten days after a racist gun rampage, also by an 18-year-old, killed ten people at a supermarket in Buffalo.12 Do you remember those tragedies? They were all over the news. Pat: I do. Sandy: Both shooters used assault rifles. Despite being far more dangerous than any ordinary handgun, they are available for seniors in high school to buy. No one under the age of 21 should be legally permitted to buy any guns, in my view. Pat: I’m not sure I can agree on this point. Again, I’m focused on hunting as a possible basis for allowing 18-year-olds to buy certain kinds of rifles and shotguns—though I agree they shouldn’t be allowed to buy military-style, semiautomatic long guns. But do you now concede that hunting is a sufficient justification for gun ownership?

12 See Thomas Fuller, “The Stupefying Tally of American Gun Violence,” The New York Times (May 25, 2022; https://www.nytimes.com/2022/05/25/us/american-gunviolence.html).

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Sandy: Not exactly. As I said some weeks ago, I consider sport hunting cruel and completely unnecessary. Hunting to cull certain animal populations such as deer has more going for it, in terms of possibly being justified, but even population control doesn’t necessarily require killing the animals—as opposed to sterilizing or neutering some of the adults. Even if, at the end of the day, there’s a compelling case for hunting in order to cull in some circumstances, that work could be limited to highly trained government employees who wouldn’t even need to own the guns they use for that purpose. I realize that many or most people don’t believe in animal protection as strongly as I do, but I also think that’s because of a pervasive, deeply rooted anti-­animal bias that, however common it might be, just isn’t justified.13 Pat: Right. While I’m opposed to cruelty to animals, I’m not opposed to using them in research or to raising farm animals for meat, dairy, and eggs. I suppose my views about animals are closer to the mainstream than yours. We don’t have to agree on hunting as a basis for gun ownership. Jan: You two can just agree that hunting for certain purposes is a candidate justification for gun ownership. A society that accepted your broad framework for ethical gun ownership could carefully consider hunting and work out its own answer. Pat: You should be a couples’ counselor or mediator! Sandy: OK, we agree on the basic idea that people should have to get a license to own a gun but disagree on whether getting a license should require showing a special need for a gun. We also agree that every single prospective gun owner should have to pass a background check. In addition, the applicant should have to pass a federally approved safety training course. Pat: Yes. It’s a reasonable requirement and it’s similar to getting a driver’s license. Also, the need to pass a safety course might slow down some people who might want to hurt themselves, or others, impulsively yet are able to get through a background check. Getting a gun is a very serious responsibility, so it’s appropriate that the process should take some effort and time, assuming one has a legitimate reason to get a gun in the first place. Sandy: Agreed. The system would be designed to make it likely that only people who can be trusted to have guns will, in

13 See, e.g., Francois Jacquet, “A Debunking Argument against Speciesism,” Synthese 198 (2021): 1011–1027.

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fact, have them. There will remain a problem with people who have guns illegally but we can consider that problem later. I’d like to suggest another regulation that would further support what the whole gun safety approach is trying to accomplish: no one should be permitted to fire any other person’s gun, except in a life-threatening emergency as a means of personal protection. Pat: That’s OK with me, except that I think adults—defined as 18 or order—who have gun licenses should be able to use a friend’s or family member’s gun if they’re hunting together. But we’ve already agreed to disagree somewhat about hunting. With that exception, I agree that one should be legally permitted only to shoot one’s own gun, except in a life-threatening emergency. Oh, wait, there has got to be one other exception: minors—maybe with some minimum age such as 12—should be permitted to participate in target shooting at shooting ranges with adult supervision. Sandy: Yeah, I can sign on to that. The minors can’t own the guns but they can use them with adult supervision—and, of course, the adults who supervise them would have to have gun licenses themselves. Otherwise, there’s no reason to assume they’re competent in gun safety. Pat: Right. Sandy: The idea that, with just a few exceptions, no one should be permitted to fire anyone else’s gun brings me to my next idea. We have to take advantage of “smart gun” technology. Personalized guns could be fired only by the owner [looks at some notes], using, say, a radio frequency connection between a gun and a wristwatch, a fingerprint reader like those we have on smartphones, or a grip recognition mechanism.14 The advantages would be huge, at least if the personalized feature is hard or costly to remove and override. First, kids who got their hands on their parents’ guns wouldn’t be able to fire them. I read about a case in which a four-year-old child of a babysitter found a loaded gun in a drawer, pointed it at a baby, and pulled

14 See Julia Wolfson, Stephen Teret, Shannon Fratarroli, et al., “The US Public’s Preference for Safer Guns,” American Journal of Public Health 106 (2016): 411–414. See also Stephen Teret and Adam Mernit, “Personalized Guns: Using Technology to Save Lives,” in Daniel Webster and Jon Vernick, Reducing Gun Violence in America (Baltimore, MD: Johns Hopkins University Press, 2013), chapter 13.

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the trigger, killing the baby.15 How horrible! These tragedies could be prevented with smart guns. Adult members of households who suddenly want to shoot themselves wouldn’t be able to use someone else’s gun to do so. A lost or stolen gun would be useless, or at least much less valuable if it’s costly or difficult to undo the personalized feature, which could lower the incentives for stealing guns and reduce gun trafficking—all of which would help keep guns out of the wrong hands. I read, by the way, that between a quarter and a half million guns are stolen every year in our country.16 Pat: Smart guns make a lot of sense. And pro-gun people, if they are being principled, should welcome this idea. Jan: Yet American gun enthusiasts—I’m tempted to call them “gun nuts” but that would be rude—don’t seem open to anything like a requirement that guns be personalized in the way you’re talking about. I have read about how pro-gun extremists successfully threatened and intimidated dealers who sold, or proposed to sell, personalized guns.17 Bizarrely, they claimed that merely making them available as a purchasing option along with “dumb guns”—I mean guns that aren’t personalized— was an assault on their constitutional gun rights. It’s like saying that making vegetarian food available in restaurants along with meat options violates the right of diners to eat meat! Pat: And there might be some people who say that, too. But just having the option of buying smart guns is not really controversial. What I’m unsure about is how to go about promoting them. Or are you saying that smart guns should be only kind of gun people can buy and own, Sandy? Sandy: We should be working towards the day when all guns are smart guns. But the technology will have to be very reliable. It would be a big problem if smart guns sometimes didn’t recognize the fingerprint—if that’s the technology used—so that the rightful owner couldn’t use their gun. Maybe American gun policy should go through a phase in which smart guns are encouraged—with states getting grants to develop the 15 This case is presented in Michael Anft, “The Smart Approach,” Johns Hopkins Health Review (fall/winter 2016): 68–77, at 70. 16 Ibid, p. 71. 17 See, e.g., Michael Rosenwald, “Calif. Store’s Sale of Smart Gun Prompts a Furious Backlash,” Washington Post (March 8, 2014) and Michael Rosenwald, “Rockville Shop Won’t Sell Smart Gun,” Washington Post (May 2, 2014): B1, B8.

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technology, possibly gun makers getting tax deductions for making them. Later they could be required in that any guns made or purchased in the U.S. after a certain date would have to be personalized. If there are any real concerns about the technology occasionally failing, there might be a backup way to get the gun to work—say, by bringing an electronic key near it, something like that. But it would be important, if there is a backup mechanism for getting a particular gun to fire, that it not create new problems such as other people being able to access it. Anyway, as far as the politics goes, it’s worth noting that [looks and finds some notes] some years ago a survey that was discussed in a respected public health journal found 59% of Americans willing to buy such a gun while 23% were undecided and only 18% were opposed.18 There is already a lot of interest and support for this safety-promoting technology despite the fact that it’s relatively new. Pat: I’m not all that surprised. Successful use of this technology would help with a lot of problems we have with guns. And, if people are content with fingerprint recognition on their smartphones, why not with their guns as well? Sandy: Great. Let’s move on. The next policy I suggest has to do with people getting their guns. Consistent with other policies we’ve agreed on—and the basic idea that only certain individuals should be able to own firearms—I favor a federal law stating that the only legal way to get a gun is from a federally licensed dealer. Just as we need to be able to have confidence in people who are allowed to have and use guns, we have to have confidence in people who supply them. This would mean you can’t give someone else a gun as a gift. And you can’t buy one from your unlicensed neighbor. There has to be accountability and reasonable trust in the overall system of gun acquisition and possession. Pat: Well said. So when you buy a gun from a licensed dealer, there’s going to be a delay to allow a background check. How long should the delay be? Sandy: Well, the FBI needs a reasonable amount of time to check your background. Here’s basically how the system works now.19

18 See Wolfson, Teret, Fratarroli, et al., “The US Public’s Preference for Safer Guns,” p. 412. 19 See, e.g., WSJ News Graphics, “Five Questions about Background Checks,” ( January 7, 2016; http://graphics.wsj.com/gun-check-explainer/).

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After a buyer presents a valid I.D. card and fills out a Firearms Transaction Record … Pat: You have really been doing your homework! Sandy: It’s not so hard with so many good sources online. Anyway, as I was saying, after a buyer shows I.D. and fills out the needed form, a check is usually run by phone or computer and, normally, the whole process just takes a few minutes. Usually the buyer is cleared to buy but sometimes the instant check shows that he or she is ineligible. In some cases, though, the FBI needs more time to check a buyer’s background, which can take up to three business days. If they haven’t reached a verdict in that time period, the licensed dealer can sell the gun to the buyer. Pat: Sounds reasonable. Jan: Not to me! Three days is not enough time in some cases. I read about a case involving that young White supremacist in South Carolina who slaughtered a bunch of Black people in a church. I don’t remember the details very well, though. Sandy: You’re right, Jan, and I reread about this case a few days ago. The young man, Dylann Roof, had confessed to illegal drug possession a month before he tried to buy a gun in South Carolina. The background check was delayed and assigned to an FBI agent in West Virginia, who failed to find out about the drug conviction within three days. So Roof bought a powerful Glock pistol, which he used to murder nine AfricanAmericans at a Methodist church. The system failed. He should not have been able to buy that gun. I recommend that the FBI have a week or maybe ten days to complete a background check.20 Presumably, most checks will continue to be very quick and not many will take more than a few days. But the FBI needs more than three days to keep guns out of the hands of people like Dylann Roof. Jan: And, in the approach you favor, Sandy, who should be excluded? Sandy: In my view, but not Pat’s, everyone who fails to demonstrate a legitimate need should be excluded, for starters. In either of our approaches, there have to be exclusion criteria once someone reaches the stage of a background check. Currently the criteria for ineligibility are pretty narrow: … [looks for the

20 Webster and Vernick recommend allowing up to ten business days for an FBI background check (Reducing Gun Violence in America, p. 260).

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right notes] … roughly, being a minor, being illegally present in the country, having a felony conviction, having been hospitalized for psychiatric reasons, dishonorable discharge from the military, being a fugitive from justice, conviction of misdemeanor domestic violence, or being subject to an active restraining order. Pat: That sounds pretty thorough to me. What would you add? Sandy: I would expand exclusion criteria 21 to include: conviction of any violent misdemeanor, not just involving domestic violence, resulting in 15 years of ineligibility; conviction of any violent crime as a minor, making one ineligible until age 30; misdemeanor stalking; or violation of a restraining order that was issued due to a threat of violence. Jan: Sounds reasonable to me. How should the system deal with mental illness? Currently a lot of mentally ill people are not excluded because they haven’t been hospitalized for mental illness. That calls for expanding exclusion criteria. On the other hand, the system shouldn’t discriminate unfairly against people with mental health issues—especially since many of them seem compatible with responsible gun ownership. If the woman with the abusive ex-, for example, is a little bit depressed, I don’t think the fact that technically she has a mental illness—depression—should automatically make her ineligible. Sandy: Quite right. So the standard I propose is all people who are documented to be dangerous to themselves or other people by reason of mental illness—here it will be crucial for reporting laws to be carefully crafted to protect patients’ confidentiality—­and those who have been found not guilty of a crime for reason of insanity. Also, one proposal that has gotten a lot of attention and that I support is having “red flag” laws—not just in some of the states, as is true today, but in every state or as a matter of federal law. Red flag laws allow police or family members, maybe others such as health professionals, to petition a court to order temporary confiscation of guns from someone who is considered, on reasonable grounds, to be highly dangerous. The evidence would often involve social

21 In this discussion of exclusion criteria, I am significantly influenced by the proposals presented in “Consensus Recommendations for Reforms to Federal Gun Policies,” in Webster and Vernick, Reducing Gun Violence in America, pp. 260–261.

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media posts that are highly suggestive of an intention to kill people in the near future; it might include a recent stockpiling of guns, especially assault weapons. This sort of evidence was available in the case of … let me see [looks for some notes], Nikolas Cruz, who killed 17 people and injured 17 more in a shooting spree at a Parkland, Florida high school in 2018.22 In response, Florida passed a red flag law that would have permitted law enforcement to seize his assault rifle and ammunition magazines. Before his rampage, Cruz had posted racist, homophobic, and anti-immigrant rantings along with at least one explicit prediction that he was going to kill people. This seems like exactly the sort of case in which police should be able to confiscate guns. Pat: Most red flag laws are about confiscating weapons people already have. But these laws can be tailored to prevent certain people—at least temporarily—from passing a background check and buying a gun. In Florida, I read, several young people who apparently had murderous intentions were flagged and prevented from buying military-style guns.23 Those interventions might have saved a lot of lives. Jan: That’s good to hear. Pat: It sure is. Back to criteria for excluding people in a background check, do you think we should still bar anyone who has ever been hospitalized for reason of mental illness from buying a gun? Sandy: Maybe not. It might be better to make them ineligible for some significant time period such as five years. Pat: Yes, that seems fairer and less potentially discriminatory. Do you have any other new exclusion criteria you would recommend? Sandy: Yes, three more: having a conviction of drug or gun trafficking; conviction of more than one crime involving alcohol or illegal drugs within a three-year period, which would make one ineligible for ten years; and membership in a gang strongly associated with violence as determined by a judge.

22 For details about this case, see “Stoneman Douglas High School Shooting,” in Wikepedia (https://en.wikipedia.org/wiki/Stoneman_Douglas_High_School_shooting#Behavioral_issues_and_social_media; accessed May 31, 2022). 23 Florida’s experience is discussed in Lizette Alvarez, “How Florida’s Red-Flag Law Helps Foil Shooting Plots,” The Washington Post ( June 2, 2022): A21.

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We have to hope the judge is reasonable and not biased against people of color, who might be unfairly viewed as more likely to be in gangs. Sandy: Yes. Of course, this would also apply to White people who are, say, members of the Mafia even if they have no convictions and don’t meet other exclusion criteria. Jan: As if your Mafiosi are going to try to buy guns legally! Sandy: Well, they might try—especially if smart guns reduce the availability of stolen guns. Pat, what do you think about waiting periods for buying a gun? Under current federal law, there is no requirement for a waiting period before someone can buy guns. I suppose, in any system that requires passing a safety course, you wouldn’t be able to purchase a gun until you’ve passed—which might take days, depending on how elaborate the course is. On the other hand, one might take such a course before applying for a license, demonstrating a need for a gun, getting the license, and going to a gun store. Should there be a waiting period? I’m thinking of cases in which a background check goes through on the same day. Pat: A waiting period—of, say, three days—might serve as a helpful time for “cooling off.” I’m thinking of those who are impulsively homicidal or suicidal but don’t have a record that would make them fail a background check. Family members or others might find evidence that supports a “red flag” during the cooling off period, possibly preventing a tragedy. I’d say gun safety recommends some sort of waiting period. By the way, Sandy, thinking about law enforcement takes me to a slightly different topic: do you have any suggestions about strengthening ATF24? Sandy: I sure do. In general, AFT should be empowered so that it can do its job properly, not hamstrung as it has been by Congress at the direction of the gun lobby. There are a number of concrete steps that could be taken. First, appointment of a Director should not require Senate confirmation, a procedural anomaly created in order to please the NRA. This requirement has no justification and, when a well-qualified prospective Director is blocked, this cripples law enforcement. Second, the ATF has to be adequately funded so it can have enough personnel and resources to do its job well. Third, two massive obstacles to law enforcement imposed by the Firearm Owners’ Protection Pat:

24 The Bureau of Alcohol, Tobacco, Firearms, and Explosives.

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Act—higher evidentiary standards, such as proving unlawful intent, for busting dealers who make illegal sales and limiting inspections of gun dealers to one per year—have to be removed.25 Finally, a national database of gun sales and gun owners needs to be established. Such a database is needed for accountability and effective law enforcement. Pat: A lot of gun owners would fiercely resist such a database. It would make them paranoid! They’d claim the federal government was gearing up to take away their guns. Jan: So silly …. Sandy: Too bad for people who don’t like it. It makes perfect sense and gun enthusiasts should show their seriousness about law enforcement by supporting such a measure. Just as another measure, requiring licenses for gun ownership, has a parallel with driving a car, so does the proposal for a national database for gun sales and ownership. I don’t hear any complaints about the National Motor Vehicle Title Information System,26 which allows law enforcement to investigate, deter, and sometimes prevent crimes involving automobiles such as selling stolen cars. It also helps protect consumers from fraud and unsafe cars they might otherwise buy. Pat: Fair enough. It makes sense to have such a database. Sandy: Glad you agree. Now I have a couple of proposals that concern tort law rather than criminal law enforcement. First, it is essential to repeal the Protection of Lawful Commerce in Arms Act, which arbitrarily freed gun makers and gun sellers from tort liability.27 It’s bizarre that makers of medicine bottles feel compelled to make them child-proof, to avoid lawsuits, but gun-makers don’t have to do the same for guns in order to avoid lawsuits. Think of that four-year-old I mentioned earlier, who shot a sleeping infant; he could fire a gun but he couldn’t open an ordinary bottle of medicine. The exemption of gun makers from liability makes no sense and is the result

25 See Webster and Vernick, Reducing Gun Violence in America, p. 161. Even when ATF finds that guns have been sold illegally, dealers rarely lose their licenses (see, e.g., Ali Watkins, “Defy Gun Law, Face Wrist Slap from the A.T.F.,” The New York Times [ June 4, 2018]: A1). 26 See the website for the National Motor Vehicle Title Information System, part of the Department of Justice (https://vehiclehistory.bja.ojp.gov/). 27 See Webster and Vernick, Reducing Gun Violence in America, p. 161.

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of cynical politics, pure and simple.28 Gun dealers, if facing ordinary tort liability, would have real incentives to sell guns only to responsible buyers. Pat: I think any honest gun advocate would have to agree that there’s no justification for special treatment towards gun makers and sellers. You said you had “a couple of proposals.” What was the other? Sandy: The other was to regulate guns as a consumer product. So the Federal Consumer Product Commission should have authority to regulate guns and ammunition just as it regulates other consumer products—it’s only logical and fair. Again, there is no reason for special treatment of firearms.29 Pat: No, there isn’t. One thing I’ve wondered about is whether there should be any new restrictions on weaponry or ammunition. As you know, in 1994 Congress passed and President Clinton signed legislation that banned so-called “assault weapons”—although the term was poorly defined and the law was riddled with loopholes. A decade later, the law was permitted to expire, so that our status quo includes these weapons and the ammunition that go with them. Since you’re more pro-regulation than I am, I wonder what you think about this. Sandy: Starting with so-called “assault weapons,” we need some precision. We’ve been using this term as well as “assault rifles” and “military-style semi-automatic weapons” without saying exactly what we mean. Hold on, I wrote something down in my notes [shuffles through written notes]. Here, what I have in mind, and what experts seem to have in mind, are semi-automatic rifles, pistols, or shotguns that can carry detachable ammunition magazines and have at least one more feature associated with military weaponry such as a pistol grip behind

28 Gunmakers, although largely exempted from tort liability, are not entirely free from liability. Remington Arms, which manufactures a firearm used in the notorious Newtown, Connecticut massacre of 20 young children and six adults, was successfully sued by families of nine of the victims, with a settlement of $73 million. The families’ legal team successfully argued that the company knowingly violated state laws concerning the marketing of the weapon in question, the Bushmaster XM15–E2S. See Kim Bellware, “Sandy Hook Families Reach Settlement with Remington,” The Washington Post (February 16, 2022): A1, 20 and “A Remarkable Victory” (editorial), The Washington Post (February 18, 2022): A22. 29 David Hemenway argues for regulating firearms as a consumer product but calls for a new federal agency that would concentrate on gun safety (Private Guns, Public Health [Ann Arbor: University of Michigan Press, 2004], p. 214).

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the trigger. Anyway, I think we should follow Canada’s example in 2020 and ban this type of firearm.30 The only purpose of such a weapon is to be able to kill a lot of people quickly. And they have been used in a lot of mass killings in our country,31 including the two massacres in 2022 that I mentioned earlier. For the same reason, we should limit the size of magazine clips—so they can carry, say, no more than ten rounds—and probably ban armor-piercing—“cop-killing”—bullets as well. Pat: Your suggestions seem pretty reasonable at first glance, but what if someone needs more deadly weapons for self-­ protection? Think of the case we discussed at length before: of a woman whose abusive ex-husband has threatened to kill her and who can’t get adequate protection from the police. What if he and his buddies come over and are all armed? She might need an assault rifle to protect herself adequately. Sandy: But notice how this perceived need for adequate weaponry can escalate. Suppose her ex- and his buddies are known, or feared, to have assault rifles. If five or six men with murderous intent arrive, her having the same sort of weapon may or may not deter them. But if they have, say, machine guns, which were stolen or bought illegally, it’s less likely she will scare them off with an assault rifle; after all, assault rifles fire only semi-automatically, needing a separate trigger pull for each shot, whereas machine guns are automatic and spray bullets continuously while the trigger is depressed. So what now? Should we allow her to have a machine gun? We don’t even allow that currently. We banned them a long time ago—with only a few exceptions, carefully tracked in a centralized federal registry—and the ban has been effective.32 Now, if she’s

30 See Ian Austen, “After Nova Scotia Killings, Canada Bans Assault Rifles,” The New York Times (May 2, 2020): A19. At the time of this writing, it appears that Canada will also ban the sale, purchase, or transfer of handguns. See Ian Austen and Vjosa Isai, “Canada Plans to Ban Handgun Sales and Possession of Assault Weapons,” The New York Times (May 31, 2022): A7. 31 See, e.g., Bonnie Berkowitz and Alberto Cuadra, “U.S. Mass Shootings in 2012,” Washington Post (December 15, 2012): A14; and Alberto Cuadra, Kennedy Elliott, Todd Lindeman, et al., “Weapons and Mass Shootings,” Washington Post ( June 1, 2014): A14. 32 See Firmin DeBrabander, Do Guns Make Us Free? (New Haven, CT: Yale University Press, 2015), p. 207. In 2018 the Justice Department also banned bump stocks, which convert semiautomatic weapons into what are essentially machine guns. Bump stocks came to the attention of law enforcement after they were used by a single assailant in 2017 to kill 60 people and injure over 400 more in Las Vegas (see “Bump Stock” in Wikipedia [https://en.wikipedia.org/wiki/Bump_stock; accessed May 31, 2022]).

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allowed to have a machine gun, then so can a lot of people and her would-be assailants are likely to be able to get them. So should we allow her to have hand grenades or a howitzer? If we try to ensure that every innocent person can be adequately protected with privately owned weapons, we create an arms race that could make American society much more dangerous and deadly than it currently is.33 Pat: I see your point and recall that we reached the same conclusion in an earlier discussion: we have to draw the line somewhere and decide which weapons and ammo are just too dangerous to allow people to have. And allowing handguns but not semi-automatic weapons seems pretty reasonable. The latter are rarely needed for self-defense and can add a lot of carnage in mass shootings. It still seems a little unfair, though, to someone like the woman we imagined who might need that sort of gun in some circumstances—and to others who are equally in need in a given scenario. And, if it’s unfair to anyone, can it really be justified? Sandy: You raise a major question in ethical theory. John Rawls famously argued that justice is the first virtue of social institutions, meaning that a social arrangement cannot be morally defensible if it’s unjust or unfair.34 Since he prioritized justice in this way, he was taking a decidedly anti-consequentialist, or anti-utilitarian, position. Was he right? If he was right, does his point apply to all of ethics and not only to justice in social institutions? It does sound plausible that, if a law is unjust or unfair, it can’t be ethically defensible. Pat: So what do you think about this? Sandy: I’m not sure. I’m of two minds, both of which allow us to set limits on what sort of weaponry we may allow people to have even if doing so disadvantages some people and prevents them from having adequate protection in some circumstances. The first possibility is that, while “If it’s unfair to anyone, it can’t be right” has a ring of plausibility, it exaggerates the priority or importance of fairness. Maybe sometimes what is right, all 33 Cf. Jeff McMahan, “Why Gun Control Is Not Enough,” The New York Times Opinionator (December 19, 2012; https://opinionator.blogs.nytimes.com/2012/12/19/ why-gun-control-is-not-enough/). 34 His statement, frequently quoted, is “Justice is the first virtue of social institutions, as truth is of systems of thought,” (Theory of Justice [Cambridge, MA: Harvard University Press, 1971], p. 3).

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things considered, ends up being unfair to some people. Maybe, for example, the social goals that affirmative action serves together justify a situation in which, say, some White people, or White males (especially those who are underprivileged in some ways such as growing up in an abusive family), are treated a little bit unfairly: they are given a less-than-equal chance of gaining the position than equally or even less qualified applicants who would contribute to diversity. If the unfairness is not egregious, maybe this is justified because perfect fairness does not trump every other relevant ethical consideration. Pat: As long as that White male applicant with the difficult childhood has a real chance to discuss what he’s overcome in the application process, I am okay with some amount of affirmative action—or preferential treatment—in admissions or hiring. But you said there was another way you looked at the situation. Sandy: Yes. Another way to frame it … think of it like this. Both what specific rights people have and the scope of those rights, or how far they extend, are matters that have to take other rights into account, as we have discussed. And, because this thought process sometimes involves paying attention to the likely social consequences of a particular way of specifying the rights in question, it is not unfair if the result of our best effort to work this out puts some people at a disadvantage they didn’t particularly deserve. If the scope of our rights—for example, whether our right to self-defense includes a right to any gun, or to an assault rifle in particular—has to take into account social consequences of possible policies, as it does to be compatible with people’s right to a reasonably safe environment, then the rare person who is unable to access sufficiently powerful weaponry in some circumstances is disadvantaged but not treated unfairly. Just as the scope of rights often has to take social consequences into account, according to this way of thinking, so do determinations of fairness. With some issues we don’t know exactly what is fair until we’ve worked out these considerations of social consequences. Pat: I understand what you’re saying. I’m not entirely sure I agree but your overall argument seems solid. But there’s one kind of gun we haven’t discussed: ghost guns. They’re not more dangerous than other guns but they can be constructed by private citizens in their own home—and without any serial number, making them untraceable.

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Sandy: You’re right. I read that in California, according to law enforcement officials, between a quarter and a half of guns recovered at crime scenes were ghost guns.35 Those who are legally barred from owning guns—children or adults who couldn’t pass a background check—can just go online, order the components needed for a gun, and assemble them at home in an hour or two. 3-D printers can make the components so, with the right sort of printer, you don’t even need to go online to order components. And ghost guns can look a lot like toy guns, which can lead to lethal mistakes, like in the case of a 12-year-old who thought a ghost gun was a toy.36 Pat: The major advantage of ghost guns to criminals is that they can evade law enforcement. Any morally serious gun proponent has to want measures that support, rather than thwart, law enforcement. So I think we can agree that ghost guns have no justification and should be entirely banned by federal law.37 Sandy: Yes, we agree so let’s move on. Earlier we agreed that smart guns have huge advantages in terms of preventing people who shouldn’t be able to use a particular gun from doing so, and in terms of making gun theft and trafficking less appealing. We both thought the federal and state governments should take major steps in the direction of smart guns becoming universal or at least the norm. In the meantime, of course, very few guns in circulation are smart guns. That means children can fire most guns, family members who shouldn’t be able to use them can do so, an attacker can fire a gun if he wrests it away from a victim, and so on. So I think morally sensible policy would have to require either safe storage of firearms or some

35 Glenn Thrush, “‘Ghost Guns’: Firearm Kits Bought Online Fuel Epidemic of Violence,” The New York Times (November 15, 2021): A1 36 Ibid. 37 At the time of this writing, ten states and the District of Columbia have banned or severely restricted the purchase or use of ghost guns (Kiely Westhoff and Emma Tucker, “Maryland Joins 10 States and DC Becoming Latest to Place Restrictions on Ghost Guns,” CNN (April 8, 2022; https://www.cnn.com/2022/04/08/us/maryland-­ ghost-guns/index.html). In addition, President Biden recently issued an executive order that banned the most accessible type of ghost guns (The White House, “Fact Sheet: The Biden Administration Cracks Down on Ghost Guns, Ensures that ATF has the Leadership It Needs to Enforce Our Gun Laws,” April 11, 2022; https://www. whitehouse.gov/briefing-room/statements-releases/2022/04/11/fact-sheet-the-bidenadministration-cracks-down-on-ghost-guns-ensures-that-atf-has-the-leadership-itneeds-to-enforce-our-gun-laws/).

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kind of locking mechanism that would at least keep young children from being able to fire them. Common sense suggests this would help prevent some gun accidents and suicides involving youths—and there’s some evidence that supports this judgment.38 Pat: That makes sense in households with children. What about households without children? Sandy: Well, if a gun isn’t stored safely, a burglar could find it and then use or sell it. Or maybe someone in the home who is mentally ill in a way that disqualifies eligibility for gun ownership would be able to access it. Pat: Well, sure, but you’re overlooking a major point: safe storage slows down the process of accessing a gun. “Hello, Mr. BurglarRapist-Murderer. If you don’t mind waiting there for a minute or two, I’m going to get my gun out of safe storage so I can use it to kill you!” Sandy: Yeah, good point. I’m not sure what the optimal policy is. But I am sure that safe storage or child-proof locking should be required in households with children. And note that smart guns could prevent a burglar, or mentally ill housemate, from using a gun owner’s weapon—and would not take extra time to access. All the more reason to make smart guns the norm. Pat: Agreed. We’ve covered a lot of ground in thinking about sensible gun policies. What’s left? Oh, I have one more item to add. The federal government should fund high-quality research on the causes of gun violence as well as the promise and limits of various possible policies. The CDC,39 Department of Justice, and National Institutes of Health should all conduct and support this research. It would serve public health and support law enforcement. Jan: Hope you don’t mind if I jump in! I have to say that, from an outsider’s perspective, what seems really strange and extreme about American gun culture and politics is the way government research on gun safety was stifled. This is something I read up on when I was doing research for a professor. Maybe you already know this, but for years in the 80s and 90s your

38 See Michael Monuteaux, Deborah Azrael, and Matthew Miller, “Association of Increased Safe Household Firearm Storage with Firearm Suicide and Unintentional Death among US Youths,” JAMA Pediatrics 173 (2019): 657–662. 39 Centers for Disease Control and Prevention.

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CDC had conducted solid scientific research on the underlying causes of gun violence in America. Evidence emerged that having guns in the home made Americans, on average, less safe than not having guns. Your National Rifle Association did not like this result and worked to coopt members of Congress to lower CDC’s budget by the amount they had been using to study gun violence.40 Then the agency, and I think all agencies of the federal government, were prohibited from doing research that supposedly “promoted” gun control. This was strangely interpreted to exclude any public health-­ related research that studied the causes of gun violence, which set back the science a great deal.41 No offense, but I find the situation totally bizarre. Pat: You’re right, Jan, it is bizarre. But the government has begun to fund this sort of research again. What it should do, though, is not just fund it but make it a major priority. Anyway, I think that’s all I have for thoughts about policy. Anything more from you, Sandy? Sandy: Yes, one more thing. One big problem we have in the U.S. is something we talked about in an earlier conversation: a lot of economic and social inequality, much of it along racial lines. There are just too many Black and Brown people growing up without a lot of opportunity and hope. Many get involved in criminal activities. Most do not, of course, but they often live in urban areas that are much less safe than the suburbs or rural areas in which wealthier Whites often live. As you mentioned in an earlier discussion, until a Black male in the U.S. reaches his mid-40s, his most likely cause of death is actually homicide!42 Well, a study found that, in high-risk neighborhoods, having more trees, cleaning up trash, repairing houses, and similar interventions to make neighborhoods nicer to live in leads to people reporting less mental fatigue

40 Jay Dickey and Mark Rosenberg, “‘Senseless’ Is Not Studying Gun Violence,” The Washington Post ( July 29, 2012): A17. 41 Cristina Corujo and Jessie DiMartino, “Decades Long Gap in Gun Violence Research Funding Has Lasting Impact,” ABC News (November 5, 2021; https://abcnews.go.com/Politics/decades-long-gap-gun-violence-research-funding-lasting/ story?id=80646946). 42 See Centers for Disease Control and Prevention, “Leading Causes of Death – Males – Non-Hispanic Black – United States, 2018” (https://www.cdc.gov/healthequity/lcod/ men/2018/nonhispanic-black/index.htm#age-group).

What Would Morally Justified Gun Policy Look Like? 123

and aggression—and to a drop in gun violence.43 The psychology makes sense to me. We definitely need more investment in neighborhoods where people feel the least hope and don’t see many opportunities for supporting themselves and living safely. Addressing issues of social justice has to be part of the solution to our problems with gun violence. This is a big, difficult topic but not one that should be ignored just because it’s complicated. Pat: I couldn’t agree more. Jan: I have to say I’m impressed by you two Yanks. If more Americans get the sort of education about guns that you two have so admirably given yourselves, maybe the U.S. will get a handle on its problem with gun violence. Pat: Too bad we didn’t record our conversations! Others could learn from them. Someone could even write up our conversations as dialogues. Sandy: Oh, well …. Jan: You two have persuaded me that the American solution probably won’t be exactly like other countries’ solutions—you have your own history, legal traditions, and sensibilities—but I won’t be too surprised if your society someday figures out a way to reconcile the importance of self-defense and its interest in public health—or, to frame it differently, gun rights and the right to be safe. But it’s such a complex issue and social problem, and it takes time. Especially in your country, where drastic legislative change almost never happens. Sandy: How many languages do you speak, Jan? Jan: Five … well, three fluently and two well enough to have a conversation on a train. Why? Sandy: Just wondering. I’ve always been impressed that so many Europeans can speak a bunch of different languages. Pat: Me, too. As an American who isn’t an immigrant, besides English, I can only speak one language, Spanish, and only at an intermediate level. Jan: Sure, but that reflects your culture and your needs as Americans, especially since English has replaced French as a major international language. And you should be proud of your universities,

43 Eugenia South, “To Combat Gun Violence, Clean Up the Neighborhood,” (October 8, 2021; https://www.nytimes.com/2021/10/08/opinion/gun-violence-biden-philadelphia. html).

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even if they’re too expensive! Your own university has created a climate in which the two of you ran into each other, started riffing on a topic that came up in class, and then felt inspired to pursue it thoroughly. I’m sure it’s partly a reflection of your individual characters, but I’ve always admired the way American universities deliver a really good education for those who are ready to take advantage of it. Sandy: Thanks! Cheers! Pat: Salud! Jan: Prost, Proost, Salute, and Skål!

Index

accidents, gun viii, 11, 18, 26, 29, 30, 41, 102, 121 African-Americans see Black Americans alcohol 27, 44, 96, 113; see also drunk driving American culture 17, 100 ammunition: 1n1, 13, 52n19, 74, 75, 97, 105, 113, 116; magazine 1n1, 9, 69 animals 74, 76–83, 107; see also factory farming; hunting assault rifle ix, 2, 106, 113, 116, 117, 119; see also assault weapon assault weapon 1, 9, 14, 113, 116–117 ATF (Bureau of Alcohol, Tobacco, Firearms, and Explosives) 10, 17, 31, 32, 114–115 Australia 12, 14, 18, 54, 101 automatic weapons 1n1, 52 automobile deaths ix, 2, 17, 75 background checks 1n1, 9, 23–25, 29, 31, 75, 88, 94, 98–99, 102, 107, 110–111, 113, 114, 120 Berkeley, George x Biden, Joe 67, 68, 94, 120n37 Black Americans ix, 6, 19–22, 23, 64, 71–72, 86, 95, 111, 122; see also Black Lives Matter; Black Panthers Black Lives Matter 21, 57, 86, 102 Black Panthers 72 Brady Campaign 19–20 Brazil 66, 101 Bunnell, Ruth 54–55 burglary 36, 41, 121

Canada 12, 14, 18, 22, 117 carrying guns in public 6, 7–8, 22, 25, 28, 70 CDC (Centers for Disease Control and Prevention) 2n3, 19n7, 20, 121–122 child-proofing of guns 115, 121; see also safety features on guns children viii, ix, 10, 13, 28, 34, 36, 41, 43, 51, 60, 71, 72, 86, 91, 93, 94, 97, 103, 106, 116n28, 120–121; see also minors Chile 18 Congress 3, 6, 10, 67–68, 94, 103, 114, 116, 122 Constitution xiii, 59; see also constitutional rights constitutional rights 3, 5, 6, 12, 56, 64, 69, 109 Cruz, Nikolas 113 democracy 66–70, 87, 98 depression 17, 66, 112 dignity 39–40, 58, 63, 72, 85; see also self-respect District of Columbia v. Heller 4–5, 6 domestic violence 29, 112 drunk driving 38, 44–46, 90 Environmental Protection Agency 89 European perspective 9, 31 factory farming 79, 81 FBI 110–111 Federal Highway Administration 89 Federal law 10, 53, 110, 112, 114, 120

126  Index Firearm Owners’ Protection Act 10n21, 114 Food and Drug Administration 89 free speech 7, 64, 66, 70, 73 freedom of movement 49, 64, 65, 86 freedom to pursue one’s passions 74; see also pursuit of happiness gangs 53, 59, 87, 95, 103, 104, 113–114 Germany 66, 101 ghost guns 119–120 government 4, 6, 8, 34, 38, 48, 50–51, 55–56, 65–70, 71, 72, 87, 88–89, 91–92, 94–95, 115, 120, 121–122 Great Britain 4, 54; see also United Kingdom gun bans 7, 12, 13, 14, 45, 57, 94–95, 117 gun collecting 54, 73–74, 76, 83, 95, 101, 103, 105 gun dealers 8, 9–10, 11, 24, 97, 106, 109, 110, 111, 115–116 gun deaths ix, 2, 3, 12, 17–18, 22, 28, 30, 43, 75, 96, 102 gun industry 10 gun lobby 10, 11, 94, 98, 114; see also NRA gun makers 8, 10n22, 11, 17, 110, 115–116 gun ownership rates 22, 24 gun rights see rights gun shows 9, 24, 28, 98, 106 gun trafficking 9, 10, 11, 31, 88, 109, 113, 120 hand grenades 52, 58, 76, 91, 118 handguns 5, 9, 13, 14, 25, 59, 68, 76–77, 103, 105, 117n30, 118 health care 7, 38, 47, 48, 50, 51, 62, 89 Heller see District of Columbia v. Heller Hispanics 21, 122 Homeland Security, Department of 89 homicide viii, xiii, 11, 13, 17–21, 23–25, 28–30, 102, 122 Hume, David x hunting 9, 54, 63, 74, 76–82, 83, 95, 101, 103, 106–107, 108 insurrectionists 4, 67

Japan 12, 18, 22, 101 Justice, Department of 115n26, 121 justice, social 22, 123 King, Martin Luther, Jr. 72 KKK (Ku Klux Klan) 71–72 lawsuits 10, 55, 56, 115 Lewis, John 72 libertarianism xi, 46–52 liberties, basic 65, 71–73, 83 license: driving 32, 75, 96n9, 107; for gun ownership 98, 99, 101, 103–105, 107, 108, 114, 115 long guns 9, 76–77, 81, 82, 106; see also rifle; shotguns machine guns 1n1, 52–53, 58, 76, 117–118 magazine clips see ammunition, magazines mass shootings viii, 1–2, 9, 13, 118 mental illness 17, 18, 59, 75, 112–113, 121; see also depression military 4, 6, 27, 36, 38, 48, 54, 67, 68, 69, 89, 100, 103, 112, 116 militia 3–4, 5 Mill, John Stuart 31n33, 34n1, 50n14 minors 28, 30, 91, 93, 101, 105, 108, 112; see also children NAACP (National Association for the Advancement of Colored People) 71 National Institutes of Health 50, 121 New York State Rifle & Pistol, Inc. v. Bruen 5n9, 103n8 New Zealand 14, 54, 101 nonviolent movements 70 Nozick, Robert 34n1, 49 NRA (National Rifle Association) 10n22, 11, 70, 94, 98, 99, 114, 122 nuclear weapons 91 Obama, Barack 21, 94 parental negligence 86, 91–92, 93 Pence, Mike 67 Perry, Albert 71 personalized guns see smart guns

Index 127 physical security 37–41, 49, 58, 61, 63, 72, 85, 86, 95–96 police viii, 26, 31, 36–38, 39, 41, 42, 48, 52–57, 59, 72, 89, 100, 102, 104, 112–113 prison 9, 35–36, 37, 48, 55 Protection of Lawful Commerce in Arms Act 10n22, 115 public duty doctrine 55 public health 89, 110, 121, 122, 123 public safety 5, 7, 13, 53, 88, 89, 91 pursuit of happiness 73–74, 88 racism 21, 57, 86, 106, 113 Rawls, John 50, 118 red flag laws 112–114 Rittenhouse, Kyle 100–101 Roberts, John 67 Roof, Dylann 111 rifle viii, 76–77, 105–106; see also assault rifle rights: basic 37–38, 41, 58–59, 61–64, 72, 86–96; legal 6–7, 33, 45, 59, 87, 96n9 (see also constitutional rights); moral xi, 6–7, 15, 31–35, 37–38, 42–45, 49, 53, 58–65, 74, 76, 80, 82–83, 85–96, 103–104; negative 47–50, 62–63, 89–90; positive 38, 47–48, 51, 62–63, 89–90 safe storage 10, 16, 26, 31, 92, 93, 120–121 safety, right to 88, 90–92, 119 safety features on guns 10, 94 safety training 17, 32, 102, 107

sawed-off shotguns 3–4 Second Amendment xiii, 2, 3–6, 65–66, 94 self-defense 26n23, 33–60, 61, 63, 72, 73, 74, 77n22, 83, 85, 95, 101, 118, 119, 123 self-respect 39, 58, 63; see also dignity semiautomatic weapons 68–69, 116, 117n32, 118 shotguns 1n1, 3, 76–77, 105–106, 116 Shue, Henry 38n4, 50n16, 51n17, 63n5, 87, 90n4 smart guns 108–109, 114, 120–121 social consequences of gun ownership 16–32, 33, 42, 44, 45–46, 48, 49, 58–59, 119 Stand Your Ground laws 11 Supreme Court 3, 4–5, 6, 8, 12, 55, 67–68, 94, 103 suicide viii, 2, 11, 17–19, 24, 27–30, 41, 102, 121 Switzerland 12, 101 target shooting 63, 74–76, 83, 103, 105, 108 trans (-gender) individuals 72, 103 Trump, Donald 5, 66, 67, 68 tyranny 65–66, 67, 69 United Kingdom 13, 101 utilitarianism 12, 31, 46, 50, 118 Uvalde, Texas ix, 9n19, 106 White Americans 7, 20, 21–22, 57, 122 White supremacists ix, 71, 95, 111 World Health Organization 18