Fundamental Rights and the Right to Bear Arms

Article excerpt

Part of what is at issue in the dispute between advocates and opponents of gun control is the nature and status of the right to bear arms. Opponents of gun control tend to see the right to bear arms as, in some sense, fundamental, whereas proponents tend to see the right to bear arms as not fundamental. In what follows I consider Wheeler's and LaFollette's interpretations of the notion of a fundamental right. Against Wheeler and in support of LaFollette, I argue that the right to bear arms is not fundamental.

But first two clarificatory comments are called for. (1) Following LaFollette, I use "gun control" as an umbrella term to cover a variety of regulations that dictate what types of guns can be owned by which citizens under what conditions. I take it that advocates of gun control believe that only a few types of guns (say, hunting rifles) may be owned by certain citizens (say, mentally competent adults who are not felons) under limited conditions (say, provided the citizen has a license, the weapon is registered, and the citizen is not permitted to conceal the weapon or carry it in certain settings). Opponents of gun control, on the other hand, oppose many or most of these regulations.

(2) What is at stake in the dispute concerning the fundamental or nonfundamental status of the right to bear arms is the ease with which restrictions may be justified. Fundamental rights are less vulnerable to regulation than nonfundamental rights. If one can establish that a right is fundamental, one has thereby established that restrictions on that right can be justified only by very compelling reasons. Hence one particularly strong--though certainly not the only--way to argue against restrictions on gun ownership is to show that the right to own guns is fundamental.

In his essay "Arms as Insurance," Samuel Wheeler defends Charlton Heston's assertion that the right to bear arms is not only a but the fundamental right. (1) On Wheeler's interpretation of Heston, what makes it the fundamental right, is that the right to own guns is "a condition for the practical existence of other rights." (2) By "practical existence of a right," I take it that Wheeler intends something like "the ability in practice to exercise one's right."

Assuming that what is at issue are moral rights, there is a prima facie implausbility about this claim regarding the status of the right to bear arms. For instance, it seems quite unlikely that this right is a necessary condition for the practical existence of our moral right to not be deceived. The claim is more plausible if our constitutional rights are at issue: if the constitutional right to bear arms is our only insurance against tyranny--a claim that Wheeler supports--then that right is necessary to prevent the government from violating all of our other legal rights. The constitutional right to bear arms, then, guarantees the safety of our other legal rights by allowing citizens to resist government incursions upon those rights and by making it less likely that governments will attempt such incursions. In this respect, the right to bear arms is what Wheeler calls a "meta-right."

Yet many of our legal rights, especially our constitutional rights, are underwritten by moral rights. The right to worship as one pleases, the right to own property, and the right to express oneself are all legal rights. They are instituted so that citizens (in democratic regimes) may preserve their moral rights as persons. So, if the right to bear arms is practically necessary for the protection of citizens' legal rights, it is also practically necessary for the protection of those moral rights that are preserved by means of legal rights. It follows that the right to bear arms must itself be a moral right, for one is morally entitled to protect one's moral rights.

And indeed this is born out by Wheeler's defense of the claim that the right to bear arms is the fundamental right. He claims that the right to bear arms is "a special, technology-dependent case of the more general right to be able to resist unjust coercion by whatever means avail able. …