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How Gun Rights Harm the Rule of Law
Second Amendment activists are redefining the public sphere, and with it, American democracy.
Rick Willing/Reuters
Polls show that gun owners cite self-protection as the primary reason they are armed. Their intentions are generally good and admirable. The gun-rights movement has done a great job making the argument for individuals to be armed to protect themselves and their families in their own homes. What if you are faced with a menacing home intruder and police are far away? In that situation, it makes good sense to be armed.
But there is an unfortunate lesson playing out for those who have armed themselves to feel safer—and for all of us, too. The gun-rights movement has worked hard to push an increasingly radical agenda that undermines both our personal safety and our civic fabric. To that extent, there is something almost tragic occurring here: The well-meaning citizens who arm themselves in droves, perhaps even in public, are in that very process threatening the peace and order they seek to preserve, and claim to uphold.
Stand Your Ground laws are a prime example. These laws, which the NRA has championed in almost two-dozen states, are a logical extension of gun rights from the private home into the public sphere. What good is it to carry a gun in public if you are not also legally protected when using it in self-defense—or perceived self-defense? How are guns supposed to deter criminals if gun owners are legally hindered from wielding their weapons? Stand Your Ground removes these legal barriers so that people can better protect themselves.
But this also has social consequences. Thanks to Stand Your Ground, citizens must now fear their armed neighbors in addition to prospective criminals. What if someone who spies you walking down the street thinks you look suspicious? What if you become a target for would-be George Zimmermans? Or what if the man you argue with, or potentially insult or offend, even unintentionally, is armed and irascible—and the argument escalates?
The latter possibility was chillingly illustrated in a movie theater in Tampa last year, when retired police captain Curtis Reeves shot and killed Chad Oulson after the two had argued, and Oulson threw popcorn in Reeves’ face. Reeves initially invoked Stand Your Ground, claiming he did not know if Oulson meant him bodily harm. Florida’s Stand Your Ground law protects gun owners if they so much as sense the threat of bodily harm. In the darkened movie theater, Reeves said he could not tell the nature of his assailant’s weapon—he didn’t know that Oulson was only throwing popcorn. In a Stand Your Ground society, it makes sense to suspect your neighbor—and fear the worst.
The gun-rights movement claims it is a staunch defender of the peace, contributing to and bolstering law and order. As gun rights are currently advanced, nothing could be further from the truth.
Increasingly, gun-rights advocates like National Rifle Association CEO Wayne LaPierre offer dystopian warnings to make their case. In November, LaPierre wrote a letter to NRA members—fittingly entitled “Is Chaos at our Door?”—outlining this vision. “[T]he world that surrounds us is growing more dangerous all the time,” he warned. “Whether it’s enemy state actors, foreign terrorists, Mexican drug cartels or domestic criminals, the threats Americans face are massive—and growing.” He invoked massive terrorist attacks like those in Mumbai in 2008 or Kenya in 2013, hordes of armed and violent gangs that “are embedded coast to coast,” and an influx of illegal immigrants with criminal backgrounds. LaPierre complained that the government had detained and then “intentionally released 36,000 illegal aliens” with criminal records. “Where all these released criminals went,” he wrote, “no one knows. But you can bet on this: They’re among us, embedded throughout our society. For all you know, you pass them in your car on your way to work.”
LaPierre’s argument for being armed boils down to this: Americans are on the verge of—or already sinking into—a state of anarchy, where it is each man for himself. In that state, “the government can’t—or won’t—protect you…Only you can protect you,” he warns.
Even if most gun owners don’t share LaPierre’s fears, the gun-rights movement may have helped make them seem more plausible. In addition to pushing Stand Your Ground laws, the NRA fought universal background checks. Their premise—that it will not stop hardened and determined criminals from accessing guns—ensured that criminals could have easy access to guns at gun shows or from unscrupulous arms dealers. What’s more, thanks to NRA pressure, the Bureau of Alcohol, Tobacco, and Firearms (ATF) is also greatly hindered from pursuing such dealers and stemming the flow of weapons to criminals. As Alan Berlow reported in Mother Jones, the agency is denied valuable information to track weapons purchases, since the FBI is required by law to destroy records of gun sales—the ones that do involve a background check—within 24 hours. Further, the ATF cannot follow up on missing or stolen guns from dealers, since the agency is prohibited from forcing dealers to conduct annual inventories of their merchandise. With NRA support, Congress has also imposed limits on ATF inspections and penalties of gun dealers, and “barred the use of ATF trace data in administrative proceedings such as those to revoke a dealer’s license.”
The cumulative effect of these efforts is a society where security must be upheld or enforced by individual gun owners, who could misperceive what justice demands in any given situation. Our police have a hard enough time with this task. Consider the controversies in Ferguson, Missouri, and Staten Island last year, where unarmed black men, implicated in minor crimes, died because police used excessive force. Police chiefs are generally critical of the profusion of privately held arms and laws that embolden gun owners to wield their weapons in public. Gun-rights advocates like to argue that ordinary citizens should be armed in public on the premise that they can halt shootings or crimes in progress. This argument is often summed up by LaPierre’s claim that “the only thing that can stop a bad guy with a gun is a good guy with a gun.” If only the “bad guys with a gun” advertised themselves as such, or the “good guys with a gun” acted that way in all circumstances.
LaPierre’s Manichean universe, neatly divided between forces of good and evil, bears little resemblance to our messy real world. Consider the 2011 mass shooting in Tucson, where Jared Loughner shot Representative Gabrielle Giffords in the head at a constituent meeting outside a Tucson shopping center. After attacking the congresswoman, who survived her grievous injury, Loughner shot eighteen people and killed six. It turns out there was an armed citizen present at the shooting—and he drew his gun, ready to shoot the attacker. However, he identified the wrong man and nearly pulled the trigger on an innocent bystander. Luckily, he did not.
Again, after the shooting at the movie theater in Aurora, Colorado in 2012, where James Holmes killed twelve people and injured seventy others, gun-rights advocates claimed more guns were the solution—more armed citizens—because they would have stopped the attack in progress. National Review columnist John Fund pointed out that Holmes specifically selected this movie theater, though it was hardly the closest one to his home, because it was the only one in the area that had a sign specifically forbidding customers to bring guns on the premises. Holmes knew this theater was a "gun-free zone," and the customers inside were sitting ducks.
And yet, it is hard to imagine how armed citizens might have made the situation any better. Holmes began his attack by throwing two tear gas canisters and releasing a barrage of bullets in a matter of seconds (one of his three weapons was a semi-automatic assault weapon with a 100-round drum magazine) into the packed theater. Armed citizens who leapt to their feet firing their own weapons would have been shooting at a target obscured by smoke and darkness in a crowded, frenzied room. They could have even contributed to the carnage and death toll. And who’s to say that another of LaPierre’s “good guys with a gun,” spying this armed citizen opening fire in the movie theater, wouldn’t have shot him down thinking he was a “bad guy”?
Another favorite gun rights saying is that “when seconds count, police are minutes away.” In other words, it’s better to have a gun on you, or an armed ‘good guy’ in the midst of a shooting, when police cannot arrive soon enough. But first responders arrived at the scene of the Sandy Hook elementary school shooting within three minutes of the first police radio broadcast of the attack. Police arrived on the scene at the Aurora movie theater 90 seconds after being called. How small ought that window be to satisfy gun-rights advocates? Perhaps it can’t be small enough. In their view, guns must be ever-present if society hopes to keep order. This logic implicitly undermines law enforcement’s role in society. The world is just too dangerous, it argues, and cops are outmanned and outgunned (again, thanks to the NRA’s efforts). Armed citizens are therefore needed to fill those gaps when cops are not present—no matter how small or short those gaps may be—in order to keep the peace.
In pushing this agenda, the gun-rights movement mistakenly urges supporters to think that public order rests upon overt shows of force. In a democracy, however, peace is founded on rule of law.
Rule of law is essential for maintaining the peace in civil society. It is also an act of faith: People presume and trust that everyone else around them will act lawfully and safely. For example, I must presume that the driver in front of me will obey the laws of the road; I must also presume that he will not, Mad Max- style, swerve around to aim a rifle at me and start firing. If people know others around them are armed, they may grow suspicious of each other, restrict their dealings with one another, or, in some circumstances, not deal with them at all. An over-armed society is a recipe for widespread mistrust and suspicion, with dire consequences for the vibrancy of civil society.
Gun-rights advocates typically consider themselves staunch conservatives. But it is worth reminding them that it is a bedrock principle of conservatism that a free society requires strong rule of law and that citizens must do all they can to ensure it and strengthen it. Milton Friedman argued that the duties and reach of government extend no further than articulating the law, making sure it is heeded, adjudicating differences between citizens, and prosecuting offenses against them. Beyond that, Friedman affirms, government should let the law and market do its work, with the compliance of free and rational citizens.
Rule of law can even help prevent government overreach. The conservative English political theorist Michael Oakeshott understood that rule of law is essential to realizing the conservative goal of small government. “[Government] by rule of law … is itself the emblem of that diffusion of power which it exists to promote,” he claimed, “and is therefore peculiarly appropriate to a free society. It is a method of government most economical in the use of power; it … leaves no room for arbitrariness; it encourages a tradition of resistance to the growth of dangerous concentrations of power which is far more effective than any promiscuous onslaught however crushing; it controls effectively without breaking the grand affirmative flow of things; and it gives a practical definition of the kind of limited but necessary service a society may expect from its government, restraining us from vain and dangerous expectations.”
But this clashes with gun-rights advocates’ worldview. They imagine some kind of libertarian paradise where government retreats—where law remains widely acknowledged and respected—and individual gun owners are free to enforce the law if and when they deem it necessary. But Oakeshott understands that an armed and potentially violent public only goads the government into action and force. Law enforcement knows that gun owners may use their weapons recklessly, and prepares itself accordingly. Oakeshott’s strongest point is that an over-armed society makes government bigger, more intrusive, and more aggressive in carrying out its vested duty of maintaining order. It goads government, and the law enforcement officials who work for it, towards arbitrary shows of power and force. In this way, too, the gun rights movement makes its wishes and warnings come true. The NRA says citizens must be armed to combat government tyranny. But an over-armed society ensures that government will be anything but restrained.
A common feature of the many police shootings perpetrated over the last year, and highlighted in the media during and after Ferguson, is that police now assume their suspects to be armed. Given the state of affairs the NRA has fostered, this may be a prudent and understandable assumption. But it also means police are instinctively cautious, hostile, and all too ready to use their weapons against ordinary citizens. In an over-armed society, we may also expect to see a steady uptick in the number of cases involving police brutality or excessive force. And then, as the NRA would have it, the government is most fully and clearly the people’s enemy, too.
