Right to Keep and Bear Arms as an Entitlement

November 9th, 2010

Professor Gostin has a new article in the Journal of the American Medical Association titled The Right to Bear Arms: A Uniquely American Entitlement. The title troubles me. Before the colon, he refers to the right to keep and bear arms as a “Right” and after the colon refers to it as an entitlement. An entitlement is not a right.

Anywho, here is the abstracT:

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court – in a familiar 5-4 ideological split – held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more destructive to our nation’s communities and constitutional structure.”

Justice Alito, writing for the Court in McDonald, found that the 2nd Amendment is “fundamental to our system of ordered liberty,” justifying its extension to the states. Why is the right to bear arms “fundamental,” when it appears that firearms – designed to cause injury or death – are antithetical to social order and public safety? Firearms cannot be intrinsic to liberty because they have a unique potential to cause serious injury and death, posing a distinctive threat to social order. Unlike other liberties, carrying firearms directly puts the gun owner, family, and community at risk. “Your interest in bearing a firearm may diminish my interest in being and feeling safe from armed violence,” wrote Stevens. Possessing a functioning handgun at home, moreover, does not enhance the right to self-defense. A homeowner’s gun is substantially more likely to kill the gun owner or a family member (through accidental firing or suicide) than it is to harm an intruder.

Going forward, state and local legislatures must remain determined in the face of litigation threats as they craft laws that comply with McDonald while also safeguarding the populace against gun violence. If not, firearm injury and death statistics will show the cost we have paid for McDonald.

This article falls into several constitutional traps I have developed on this blog (and am in the process of transforming into an article). First the article falls into the disequality of rights trap. As I wrote in this post:

In short, why are some rights treated differently from other rights?  Why are some rights favored more than others? Implicit in the assignment of a tier of scrutiny is the hidden normative bias that some rights are more worthy of protections than other. Rights given strict scrutiny are important. Rights given rational basis scrutiny are worth nothing.

I tend to think that a right is a right is a right. Perhaps we should strive for “equal rights under law.” I use the phrase “equal rights under law” not to imply that everyone possesses the same rights–that would seem to fall under “equal protection of the laws.” Rather, I use the phrase “equal rights under law” to imply that different rights should be treated equally.

Gostin writes that the right to keep and bear arms (oddly enough he refers to it in the article as a right, even though he really considers it an entitlement) is different because it is so darn dangerous:

Why is the right to bear arms fundamental, when it ap- pears that firearms—designed to cause injury or death— are antithetical to social order and public safety? In 2007 to 2008, the United States experienced 78 622 (25.87 per 100 000) nonfatal firearm injuries and 31 224 (10.36 per 100 000) fatalities, of which 40% were homicides, 55.6% sui- cides, and 2% unintentional deaths, with African Ameri- can individuals having injury rates double those of white individuals.4

Is the 2nd Amendment the most dangerous right? Maybe not. I am currently developing an article comparing the deaths and injuries that result from gun violence with the deaths and injuries that result from our criminal procedure protections. If you recall, a person who is arrested/searched/etc in violation of the 4th, 5th, and 6th amendment gets a free pass–and very frequently go on to do bad stuff. I am not ready to release the numbers yet, but in many cases, they dwarf the damage that the 2nd amendment supposedly causes. For purposes of this research, I accept as true the statistics cited in Justice Breyer’s opinion.

Gostin continues the theme Justice Stevens adopted in his dissenting opinion.

Firearms cannot be intrinsic to liberty because they have a unique potential to cause serious injury and death, pos- ing a distinctive threat to social order. Unlike other liber- ties, carrying firearms directly puts the gun owner, family, and community at risk. “Your interest in keeping and bear- ing a certain firearm may diminish my interest in being and feeling safe from armed violence,” wrote Stevens.3 Pos- sessing a functioning handgun at home, moreover, does not enhance the right to self-defense. A homeowner’s gun is substantially more likely to kill the gun owner or a fam- ily member (through unintentional firing or suicide) than it is to harm an intruder.6 In addition, a gun purchased for the home may not remain in the home but rather find its way into the illegal market for use in criminal activity, threatening the wider community.

Gostin speaks specifically to why the Second Amendment is different from all other rights:

Perhaps most important, the Second Amendment is dis- tinctly different from the rest of the Bill of Rights, which guarantees freedoms such as speech, press, religion, assem- bly, and petition. The Bill of Rights is critical to the fulfill- ment of personal autonomy, dignity, and political equality. The right to bear arms has no such intrinsic value but rather is a right to possess and use a consumer product—one that is inherently dangerous.

The right to defend yourself seems pretty closely tied to autonomy–you know, being able to fend for yourself. Historically, disarmament has been used as a tool to foist political inequality. Inherent dangerousness is not a relevant consideration for scrutiny of other amendments, including releasing dangerous criminal due to, say, a Miranda violation.

Gostin also argues that the Constitution effectively has a geography clause, wherein the Second Amendment can mean different things in different places, misinterpreting the Brandeis “laboratory of the states” model (which still demands the Constitution sets a floor).

Next Gostin argues that rights should mean different things in different places.

There are many appropriate conceptions of an orderly social life that understandably vary across jurisdictions. What may be de- sirable in a rural community in Montana or Wyoming may be anathema to peaceful life in an urban area such as Los Angeles or New York. Densely populated cities face press- ing challenges to combat violent crime and disarm street gangs, but most rural areas do not. Cities rarely offer hunt- ing or other recreational uses of firearms. It is for that rea- son that firearm regulation is a quintessential area of US fed- eralism where local solutions, supported by the electorate, should be permitted to flourish.

I have argued in several places that the Constitution lacks a geography clause. With the exception of obscenity, rights mean the same thing in all places (and I think the obscenity test from Mill is suspect).

A lot to digest in this short piece, which is aimed at Doctors, but it commits many of the fallacies common in 2nd amendment analyses.