There was some desire expressed for me to elaborate on my views on American gun culture and the application of Second Amendment rights when I, admittedly, chose a poor real life example as a means of furthering my point summarized by the Obamanization: I’m not opposed to the application of all Second Amendment rights, I’m opposed to dumb applications of Second Amendment rights.
The meat of my argument was embedded in a too-long post on violence and American gun culture post here some weeks ago. I’ll reprint it for ease of discussion and further examination,
All too often we talk about rights without a corresponding discussion about the responsibilities that attend those rights. You may well have the right to do something, or alternatively, the right to be free of something, but the social contract that provides you with those rights also binds you into a relationship of responsibility in terms of the applications of those rights vis-a-vis your fellow citizens.
Certainly one such responsibility is to ensure that you do not apply the rights there accorded in a reckless fashion, thereby denigrating the value of those rights in the first place and contributing to the over all break down of social cohesion that results from such denigration. By my lights, it is just this kind of one-sided rights talk that is at play in the Second Amendment discussion around the bringing of firearms to public political events and, sadly, more often than not in other elements of American life that tend to feed into this undercurrent of violence that I find so alien and incomprehensible.
What I’m driving at is this: the tendency for a relatively entrenched and pervasive proportion of the American public to see the right to bear arms as unconditional and unassailable as a predominantly individual right leads, in my mind, to some pretty reckless applications of that right.
When I say reckless, I mean applications like: taking a gun to a public political rally or taking a gun to a kids’ soccer game or any of the other incomprehensible situations into which people may choose to take a gun where, frankly, there is no persuasive rationale for doing so. I’m not saying that people don’t have the right to take a gun into these spaces, indeed in both public cases where this behaviour has been exhibited the individuals in question did have such a right. Rather, I’m suggesting that while one might have that right, there is a question to be asked about whether in that particular instance it seems wise to exercise said right.
At least some of the time, I think the reasonable conclusion at which one is likely to arrive is: no, taking a gun into that space is probably not such a wise idea.
But the kind of vociferous and one-sided manner in which rights seem so often discussed, and particularly some of the arguments I saw voiced by not insubstantial voices in US political discourse that amounted to, “Hey, what’s the big deal? It’s in the Constitution…”, leads me to believe that there is a kind of short circuiting to the above line of questioning that often happens in a US context.
Not that I think I need to say this explicitly, but I see that short circuiting as a bad thing. I find it particularly troubling because I’m of the opinion that the most effective means of addressing the appropriate place and use of firearms in US society is a cultural discussion amongst the various moral agents of said society, rather than a discussion that focuses on gun laws, or, put another way, it would be helpful if people chose to engage in a discussion about self-policing rather than waited to have a fight over government-policing, as it were.
The reason I see that discussion and its short circuiting as important is because I correspondingly think that the failure to have that discussion tacitly encourages reckless applications of those rights by finding justification for their application whether it seems reasonable or not. And in so doing, I think that encouragement can lead to a greater degree of violence in society due to a flippant approach to the object of said rights application: firearms.
Now, look, I’m not purporting to be demonstrating causality here in a one-to-one fashion of: if you do (or don’t do) X, then Y will occur. I don’t think such a statement can be made in this instance to the effect of: rigorous, unconditional, and unqualified defense of all applications of Second Amendment rights causes more gun violence. Rather, what I’m suggesting is that the above make the possibility of increased gun violence more likely because it fails to take into account — and in some cases almost seems to actively ignore — the other half of the conversation about what the attendant responsibilities to the application of that right are within the context of the American social contract.
The shorter me here is that talk of rights without a corresponding talk about responsibilities is a relatively empty affair and is best enabled in a cultural rather than a legislative context, at least insofar as it involves an overt appeal to personal responsibility as opposed to public safety. The general failure to have such a conversation in a robust and good faith fashion strikes me as a problem and worth pointing out in the context of its potential indirect impacts on societal levels of violence.
Will Truman 
Patrick Cahalan 
Cornelius 
wardsmith 
Tod Kelly 
Tom Van Dyke 
Murali 
James Hanley 
Borat: “I do a picture, only small, of the Tishnik Masacre. Where many Uzbeks…crushed!”
Kindly Gray Hippie: “How did you feel when you drew this?”
Borat: “Very proud!”.
KGH: “I’m just listening with sadness…a little sadness for your people…?”
Borat: “Yes…no, it is not sad. It is us who do the kill!”
When in doubt,
{ 37 comments }
good post.
That’s it? No “but”s or “you forgot”s or “you stinking conservative-face”s?
sorry, your post clearly shows evidence you have bad breath.
Now that’s just not true…
Without a horse in this race, reading this I – well agree for the most part – and am struck by how you could apply this view of rights in a cultural context to the sexual components of 14th Amendment jurisprudence in the mid-late 20th century.
In particular, I’d be interested to see how you or any other commenters would contrast this view of the 2nd amendment with say abortion “rights.” (I’m not using scare quotes just that there’s no explicit right to have an abortion in the same way the 2nd amendment is written)
Not to hijack the post but I think people get really uncomfortable with talk of sexual responsibility – in a cultural sense – and the availability of abortion. I wonder which parallels work and if conceptually where the limits of application are.
That said, I like shooting but have no particular affinity for the 2nd amendment or the jurisprudence that surrounds it. i.e. nevermind that there are 27 words, we’ll just focus on 14 of them and ignore the others because the FF just didn’t realize that less is more.
have you read anything Will Saletan has written in Slate regarding abortion? He’s taken a lot of flack from all sides for taking basically this approach to that issue, but I largely agree with him.
You know, I haven’t, I read non-Dahlia Lithwick Slate in bursts until their “Here’s something you like, like bunnies, and 10 reasons why they’re they’re causing global warming” – style gets to be too much.
That said, I’ll peruse the archives this weekend, sounds interesting. Thanks.
Have some thoughts in mind. Will try to get to providing them in a reasonable time frame, but I make no promises (knowing me).
That all sounds quite reasonable, Scott. The freedom to do something isn’t justification for doing it, and many people seem confused about this (and this goes beyond the debate about gun rights). We shouldn’t assume that because something is legal it is therefore desirable, nor should we look to criminalize activities just because they are undesirable.
Everyone should take your message to heart.
Can you give me example of what one might point to as an example of sexual responsibility?
Um…use a freaking condom.
Sorry, that was too facile of me.
The problem of real sexual responsibility, beyond my snark, is that it would require a culture that respected sex. What I meant was more that – since we don’t have that and I don’t see how we will – one should at least take the minimal effort to not end up messing your life up badly. I mean, yes, especially sexually, everyone is different. But there are obvious generalities as well. Given how effective contraception is, particularly when used in combination (condoms + hormones, etc.), and how generally easy-to-obtain at least some forms are (you can get free condoms in just about any clinic, and a box of 12 is usually like $5 at the grocery store), there is no reason besides a shallow, ignorant, infantile, and superstitious culture (or violence, but that’s another story) that this is even an issue.
The second response was more what I was looking for. Using birth control is definitely recommended by me. Also one has the responsibility to inform partners of any sti they may have.
Things that could be done to get out of peoples way in acting responsibly would be ensuring that they can get birth control through their health insurance, having plan b over the counter, firing pharmacy techs that won’t do their job and distribute said medicines.
Anything else you can think of in the responsibility issue?
It’s true that people want to have rights without responsibilities. One major responsibility individuals want to shirk with regard to the right to own guns is thinking about two aspects of this. Firstly, how effective are the regulations in controlling access to guns. Recent police sting operations at gun dealer shows suggest not very. Secondly, what is the cost to citizens by way of taxes, increased health insurance premiums, etc. of gun violence because of policing, hospital treatment, social security payment costs, etc. I read one article recently that suggested if these were factored in a single bullet would cost in the region of $2,500 by way of special sales tax.
Heck, people want to government to do all sorts of things for them, without paying taxes. It’s a pretty universal problem.
You should have saved this title for a water-rights post. Man, that would have been good.
I strike when the iron is hot, Kain.
Any sort of first possession rights as it pertains to public resources. Then again, I could just invoke “affected with the public interest” and it ends right there. Simple enough I think.
Indeed, to be sure, that said, of course, certainly.
The problem is that this attitude toward any given right will erode the right.
Now, I appreciate freedom of speech but you have to understand that (historical reference) is beyond the pale. I believe you have this freedom but you are using this freedom irresponsibly.
Indeed, the freedom to peacefully assemble is one that I respect implicitly but, even though this is a private home, you have to understand that there are some that would consider this meeting to be a conspiracy to commit a misdemeanor which is, itself, a felony.
So on and so forth. You can get rid of stuff like the 2 Live Crew album this way.
Or, I suppose, the right to a fair trial (he was, you recall, going to detonate a dirty bomb).
Cruel or unusual punishments? By whose standards? Indeed, if your daughter were locked in a bathroom somewhere, you wouldn’t hesitate to use a blowtorch to find out where she was.
And little by little, the right we used to have is now a privilege extended to certain groups and not extended to certain members of certain others… and when this is questioned, indeed, to be sure, that said, of course, certainly.
Jaybird, I think we can say that it is immoral for you to stop me from doing X even though my X-ing is immoral.
For example, a woman may very well have right to an abortion in that you ought not to forcibly prevent er from having one. But it still may be the case that having an abortion is not virtuous or wise.
Oh, indeed! I am 100% down with this sort of thing.
The problem is when the moral busybodies show up and start saying “the fact that it’s immoral for you to do this means that you don’t have a right to it!”
And before you know it, you’re detaining people at Guantanamo. (No, the Constitution doesn’t mean *THAT*, surely the forefathers could not have foreseen such things as suicide bombers, it’s a living document, it doesn’t apply to people who aren’t citizens, and so on, and so forth).
This is a well reasoned post. I appreciate Jaybird’s concern, as well. The important point is that the original post, while perplexed about certain applications of the Second Amendment (the soccer game), does not seem interested in arguing that the right does not exist. Rather, it argues that, yes, you might have a right to take a gun to the soccer game. But that’s a dumb thing to do. I agree that it is dumb. (In most cases. For instance, few people would look twice if they saw me wearing a sidearm at a soccer game, or in church, where I am from. But in the city? No. Leave the gun at home.)
I also agree that this observation applies to all kinds of rights. Once, when my daughter was three days old, we took her and our older kids to the playground. When there, my wife expressed concern that some dude’s dog was unleashed. He started screaming and swearing and eventually called her the “C-word.” I think he actually has a right to do this. Just like that clown has a right to do anti-gay protests at soldiers’ funerals. But… man. That’s rude. And stupid. And I will lie on the stand if someone pops you in the nose for it.
What I do find interesting is the way many people apply different standards to “rights,” writ large. People with guns consider the Second Amendment sacrosanct, so they pack heat at the soccer game. People who like to engage in IMF protests think the First Amendment is sancrosanct, so they wear masks and stand in the way when a cop is trying to get somewhere.
I believe these people are correct. But they are also jerks.
I largely agree with your point Scott because personally I am not very sympathetic to broad and robust 2nd Amendment rights, but I think you’re missing the point somewhat by ignoring the nature of rights.
The whole point of a right is that it enables you to do something which is not preferable to a majority. In other words, if laws are the democratic will expressing the preferences of the majority (dubious as a literal fact, but on some level its true), rights are trumps used by individuals to turn back the majority preferences, and the only time you need the right to do anything is when you are doing something non-preferable to the majority (aka taking a gun to a soccer game). When you say “responsible”, what I really think that means is “utility maximizing” in the sense that you are only “responsibly exercising your gun rights” if by doing so your doing so makes a better world. We can have other meanings of responsible too, but what I take your post to mean is that people should avoid carrying guns and exercising their 2nd amendment rights in a way that makes the world worse off. How can we know if the world is worse off? Well, one way, though not perfect, is to take a vote (ie Laws passed by a legislature). That reflects the preferences of the most people, and thus the utility they get from allowing certain types of gun rights to be exercised. But here’s the kicker: if you ‘re exercising your gun rights in a “responsible” (utility maximizing) way, you don’t NEED the right, because the democratic preferences won’t prevent you. Thus, you don’t need the right to bear arms in order to go hunting? Why? Because the majority favors hunting.
Rights are only useful to the extent they turn back the majority from enacting its preferences (ie gun laws or lack thereof). Those preferences are the closest approximation we have to the social utility of that particular use of guns. If a soccer mom brings a gun to a soccer game, she’s doing something that’s “irresponsible” because it detracts from society’s overall utility. We thus would want to ban it. But thats exactly when the right is actually of use.
As a comparable situation, think about who really needs First Amendment rights. Tom Friedman doesn’t need the 1st Amendment — Why? Because Tom Friedman has never said anything particularly disgusting that the community would want to ban (he’s said many stupid and banal things, but nothing thats going get anybody to try and ban him). Nazis, on the other hand, march through Skokie, Illinois to intimidate Holocaust survivors, and their “speech” is not preferable to the majority, and hence the majority may want to silence them (this is a famous court case). Nazis therefore need the “right” to be free from government restraint of speech because their speech, unlike Tom Friedman’s, is nonpreferable to the community, and thus needs protection. Your criticism in this situation would be that the Nazi’s need to use their right to speak freely “responsibly,” much like Tom Friedman (kinda) speaks “responsibly”. But the whole point of having the right is so you don’t have to act responsibly!
Wow…very, very good comment David.
I am probably being thick here but I’ve read this post twice and I still don’t see any real linkage between the firm commitment to the 2nd Amendment and a few well-publicized but random events where someone abused those rights. Sure, with awesome power comes great responsibility. A few people don’t get that.
Now if we’re talking about American fondness for guns as an obstacle to reducing gun violence, sure, I’ll accept that. The NRA is worried about new laws being created unneccessarily which is a valid concern. We have good laws on the books. We just need a willing federal to go after the real problem of trafficking. I honestly don’t know what keeps them from enforcing existing laws. I’m not ready to say it’s a reverence for the 2nd Amendment.
Is a soccer game an inappropriate location to be armed? Is a public soccer field immune to situations where violence might occur? Does such a location exist at all? If a shooting can occur in a schoolyard then it seems to me that it could easily do so at a sporting event. There are 200 million firearms in this country. There are hundreds of thousands of individuals legally carrying concealed firearms in the US. Only a tiny fraction of those people ever end up in the press as an example of the abuse of the 2nd amendment. You are likely to have been in close proximity to a person who was carrying a concealed weapon legally, almost daily. In light of this it seems an overreaction to imply that the 2nd amendment is being abused on any sort of measurable scale. Regards, Patrick
I (legally) keep a gun in my glovebox at all times. I have friends who ride in the car with me who aren’t big fans of guns and they aren’t harmed in any way. Likewise I carry concealed occasionally when I am going to be downtown after dark or once in awhile just because I can. I suspect no one has ever been the wiser because I’m careful to not let the gun be seen. Lastly, I’ve gone to gunshows with a gun in a holster in plain sight on my hip. No problems there either.
Honestly, for every story we hear about someone carrying a gun to a soccer game I can find you dozens of people carrying guns responsibly with no problems. On top of that I bet I could find more stories about people carrying guns responsibly AND saving their own lives or the lives of others because they had them.
All I ask is that you continue to use good safety practices. I recently lost a member of my gaming group due to a firearm accident. They heard a noise and while they were getting ready to investigate his daughter dropped her gun and caught it in mid-air pulling the trigger shooting him in the head.
Be safe out there Mike I don’t want to hear any stories like that about you.
I’m the most anal guy you’ve ever seen around firearms. When I’m in the field I will check my safety every 5 minutes. I’ve heard too many bad stories. But that’s really all it’s about. You have to respect firearms.
I am glad to hear that.
But this is the balance that we need to strike, isn’t it?
The balance between our desire for a well-ordered society or norms and mores, and the individual right to be free to pursue their happiness.
It is pretty well understood that no rights are absolute- that the compelling interest of society in maintining order sometimes- but not always- overrides individual rights.
So case like usin faith healing on a child instead of medicine, the religious use of peyote, carrying firearms- these case always tread the line of acceptable behavior, where extreme expressions of individual liberty rub up against the need for order.
Ironically, it is liberalism (small l) at work in the extreme 2nd amendment claims- not much different than pornographers asserting their 1st amendment rights.
My conservative mindset prefers order and stability, even if I acknowledge that freedom demands grudging acceptance sometimes of boorish speech or behavior.
What you call
is really not a tendency at all. It’s the most widely held interpretation of the Second Amendment there is–shared by the Supreme Court, after all. The idea that gun rights are individual rights was confirmed recently by the Supreme Court but it really didn’t need to be–what other amendment in the Bill of Rights is collective? When the BofR talkes about “the people” they are referring to individuals.
Your whole post seems to be based on the bad taste of some people who exercise their rights in ways that offend you. Too bad that your idea of good taste can’t be legislated but until then you’ll just have to tolerate the fact that there are a lot of ignorant hicks out there with bad taste and who don’t care about your idea of good taste a bit. These are the same ignorant hicks who demanded the Bill of Rights in the first place and who ratified the Constitution in 1789. They demanded gun rights and they still do. It’s the Second Amendment, second in importance to freedom of expression, etc etc. There must be a reason for this. Is there some relationship between gun rights and democracy, freedom, etc etc? Maybe it would be better for you to try and discover this instead of railing against the bad taste of the ignorant hicks who exercise their rights. These ignorant hicks today are still exercising their gun rights and are still producing the nation’s food, building its infrastructure, and fighting its wars:
Last, how can you determine what is the proper place to carry arms? Wouldn’t this then just make it easier for madmen to go to these places and commit mass murder? What if someone had been carrying arms at Virginia Tech? Couldn’t they have stopped the murder in time? Instead, people observed your canons of good taste and died. Your canons of good taste are great for people with good taste (if people were angels, etc etc) but there are a lot of people out there who lack it. Someone has to deal with them and this falls again to the lot of the ignorant hicks you disparage.
Roque: Nuevo “what other amendment in the Bill of Rights is collective?”
A minor point, but nonetheless, off the top of my head: the First, Fourth, and Ninth and Tenth Amendments all contain rights that are styled collectively, in contrast to other rights (the Third, for example) which are clearly individual. Lets look at the text (Excuse the all caps, as I don’t know how to put in italics for emphasis):
Congress shall make no law [abridging]… THE RIGHT OF THE PEOPLE peaceably to assemble
Fourth Amendment: “THE RIGHT OF THE PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”
Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others RETAINED BY THE PEOPLE
Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”
Contrast those rights with the Third Amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
Now contrast that with the Second: ” 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”
Now you might say, well, all of those rights are exercised by individuals, and indeed they are. But any collective right has to be so exercised, only one person can actually do it . If you think its possible to have a collective right, its hard to see how these don’t fit the bill, even though anytime somebody actually tried to exercise it (say, by suing the state for preventing a peaceful assembly), they’d being doing so in their individual capacity.
I tried to make the same argument you were making with a very well respected conlaw professor (I’m a law student), except I was trying to argue that the 2nd Amendment was not incorporated by the Privileges or Immunities Clause of the 14th Amendment because the other Amendments were individual, whereas, contra Heller, I think the 2nd is collective. (This is neither here nor there). Anyway, I got smacked down.
David Y: your explanation of individual and collective rights lacks all clarity. How is it that we have collective rights exercised only by individuals and whose violation can only be redressed individually? It looks like we’re in walks like a duck territory: if it talks like an individual right, walks like an individual right, then it is an individual right.
Collective rights are easily rcognized for what they are. For example, if the law holds that only the samurai class may bear arms, we know this is a collective right because a) it refers to a group; b) the samurai class is constantly invading our property, hacking our dogs to death, raping our wives and daughters, and leaving our house a burning reeking wreck. In fact, it was situations like these that made Americans demand individual rights as amendments to the constitution.
Scott,
Wondering how this effects your theory on American culture and gun violence:
http://news.yahoo.com/s/ap/20091021/ap_on_re_ca/cn_canada_hostages
Scott,
Unfortunately I think we all had to do a fair amount of deduction from your two posts because you were (mostly) absent from the comment sections. I understood your general point of ‘with certain rights comes great responsibility’ and I think the American gun owners/supporters made a pretty good case for why the vast majority of American gun owners are extremely responsible with said rights.
The reason I posted the link yesterday is because by your own admission both your posts took the somewhat skewed perspective of an outsider looking in, so of course I am curious how you view problems with gun violence within your own country.
Mike, this post was in direct response to your request for clarification on my position. I’m sorry you don’t feel I spend enough time in the comments section here, I don’t have the general latitude at work to do so anymore and spend the majority of my time outside of work either either attending to my family life or thinking about various issues to write about and writing about them. I think I laid out my thought process pretty clearly here and I’m not sure what more it is that you’re looking for.
I could keep going around in circles with you about this, but I think the end point is that we disagree, which is fine. The take away message is the following: my view is that rights, properly understood in the context of a social contract, are best discussed in conjunction with their responsible application. What exactly comprises “responsible application” is precisely the discussion I’m suggesting it is important to have and that I think is often times lacking from our discussion of rights. I think that discussion is best had in a cultural context, as opposed to discussing it vis-a-via bulking up pre-existing laws (gun laws or otherwise) because said discussion tends to be more divisive than constructive. And I think that discussion is important and ought to be had regardless of your country of origin.
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