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A while back I did a thought experiment.

Starting from the premise that the Second Amendment Right of the People to Keep and Bear Arms is impermissibly infringed by (1) background checks, because they delay, obstruct, and potentially prevent my acquisition of firearms, and (2) any "ban" or restriction on any particular model, type, or category of firearms, because it prevents me from having the specific, particular weapon that I want, which is my right irrespective of whether any number of other weapons are available to me, I posed the question: If (1) and (2) are infringements, for the reasons stated, then why is the price of guns, i.e., the requirement that I give up my money in exchange for my rightful weapon before I can "Keep and Bear" it, not an infringement for the same reasons? For example, if I want an AR-15 but either can't afford the $1500 price tag or don't feel that it's worth that much, doesn't that price create an impediment to my having it? If I don't have $1500, doesn't that effectively "ban" that weapon, for me?

One of the problems with a thought experiment like this is that sometimes readers confuse a thought experiment -- or the description of a thought experiment, like the paragraph above -- with a declaration of one's actual position or beliefs. Even when I made it clear that I don't actually believe that gun prices are an infringement of the Right to Keep and Bear Arms or a violation of the Second Amendment, the experiment still provoked more hostility than thought, from both "sides" of the "gun issue." (I find that happens rather often, and find it more than a little distressing that the provocation of thought so often provokes anger, hostility, indignation and resentment instead.)

When I took Torts in law school, we were presented with "The Trolley Problem." Two scenarios were presented, one in which the initial assessment was that the subject was clearly liable (a doctor slices up a healthy patient and gives his organs to three sick ones, saving their lives), the second in which he clearly was not (runaway-trolley operator throws switch and kills one workman to save three); the scenarios were the same in practically every respect. I don't want to get into the Trolley Problem here (or in the comments section); the point of the exercise is not to prove or disprove that the doctor is liable and/or that the operator is not. The point is to find a principled distinction between the two scenarios, between the choices the subjects made, that explains and provides an understanding of why one is liable and the other is not for doing essentially the same thing, for making essentially the same choice for the same reason with the same result in a different situation. That's what a thought experiment is for.

Of course gun prices don't violate the Second Amendment. Of course the experiment fails if (1) and (2) are not actually infringements of the Right of the People to Keep and Bear Arms, because the premise that gun prices infringe is dependent upon the premise that background checks and discrete weapons restrictions infringe for the reasons stated. The purpose of the experiment is not to demonstrate one way or the other whether gun prices are an "infringement" forbidden by the Second Amendment. They're not. The purpose is to think through, explore, and understand why they're not, by finding a principled distinction between gun prices and "infringements" (1) and (2), in order to deepen understanding of exactly what the Right to Keep and Bear Arms is, and isn't. Knowing that gun prices are not infringements is one thing; understanding why they're not, when they have the same practical effect as other purported "infringements." is something else. Thinking they're not for the wrong reason is of no greater utility than thinking they are.

There are a couple of quick and obvious responses I typically got (mixed in with the hate and hostility) that make some sense but don't really answer the question. I'm not going to address these in detail here, but in a nutshell they are: (A) Only the government is subject to the Second Amendment and barred from infringing, not private business; and (B) any number of analogies to other rights and the incidental expenses, including the purchase of goods, that might accompany or facilitate the exercise thereof, which are not "infringed" by those expenses, demonstrate that gun prices also don't infringe. Again, I'm not going to go back over these here; each has valid and effective counterarguments. The conversations I had surrounding these initially led me to a basic conclusion as to what was essentially being argued: Gun prices do infringe, but they're an infringement that we're all basically OK with (hence we don't think of them as an infringement) because we're OK with who is doing the infringing, and why.

Upon further reflection, thought and inquiry, I found that these two responses (A) and (B), although inadequate by themselves, opened the door to what I think is the best and most succinct answer to the question of why gun prices don't violate the Second Amendment, even though they impede the acquisition of specific desired weapons: Because guns are property.

As a great many people citing reason (A) pointed out, albeit indirectly, guns are consumer goods, manufactured and sold for profit on the open market. Indeed, they are the only consumer product (or category of products) the ownership of which is expressly protected as a "Right of the People" by the Constitution. (Which, of course, the manufacturers and sellers of those products deeply appreciate.) Other consumer products are subject to ordinary commercial regulation, ordinary products liability, and ordinary property rights.

Property rights are the best explanation for why guns must be paid for, and why the requirement that they be paid for does not violate the Second Amendment. Again, and indisputably, guns are property. The manufacturer and seller have property rights in the guns they make and sell, including the gun the buyer wants, until the buyer pays for it, at which point he acquires property rights in that gun and with it the "Right to Keep and Bear" that particular gun. You can't have a "Right to Keep and Bear" something you don't own, that someone else owns.

Which leads to the next question: Is the "Right to Keep and Bear Arms" a property right, or a civil right? The Fifth Amendment provides that "no person shall...be deprived of life, liberty or property without due process of law," which indicates that human rights ("life"), civil rights ("liberty") and property rights ("property") are three separate and distinct things.

[As an aside, the Fifth Amendment provides yet another bulwark against "confiscation," the perpetual fear of gun fans, in that it expressly prohibits the arbitrary, uncompensated confiscation by the government of any property, which would have to include guns.]

One could argue that the Second Amendment Right of the People to Keep and Bear Arms must be, and can only be, a property right. "Keep and Bear" implies ownership, and ownership implies property rights. That's what "ownership" means. You own something, therefore you have property rights in that thing, which include, inter alia, the right to exclusive use of it, the right to convert, sell, alter or destroy it, etc. Since guns are consumer products that must be paid for before they may be "Ke[pt] and B[orne]," gun ownership cannot be a civil right, because one cannot be compelled to pay for his civil rights before possessing them.

Two things always come up at this juncture. (I should note that gun fans tend to resist and object to the idea of gun ownership being a property right, which is interesting by itself, but more on that presently.) First, obviously, homemade guns. You're free to make your own gun, in which case you don't have to pay for it. Maybe, but that doesn't change anything. A homemade gun is still your property; it's still a product. The same applies to a gun you were given as a gift, for which most likely someone else had to give up and exchange his money. And if you want to make your own gun, you still have to pay for the materials and equipment you used to make it. I don't know what percentage of the ~300 million guns owned in the U.S. are entirely homemade, or how much ammunition is homemade, but I don't think it matters. The fact that a product could be homemade instead of purchased commercially, doesn't transform a property right into a civil right.

The second is essentially the same as reason (B), supra, which is that the exercise of civil rights can, and often does, require incidental expenditures, such as transportation to the polling place to exercise the right to vote, and the more frequent analogy, the purchase of newspaper-publishing equipment, radio transmitters, computers, Internet access, &c. to exercise the First Amendment right to free speech or freedom of the press. This, correctly, implies a distinction between the "right" itself, and the instrumentalities that we might use in the process of exercising that "right." But that, of course, doesn't end the inquiry.

The First Amendment rights to free speech and free press protect the right of the individual, or "the press," to speak and report the news without being arbitrarily punished for it, i.e., without it being a crime. Ownership of the various instrumentalities one might use to speak or report the news is incidental to, and not a prerequisite of, the exercise of these rights. A PC merely facilitiates speech and makes it easier to disseminate; one is still free to speak, and capable of speaking, without a PC. The First Amendment does not provide a "Right to Keep and Bear" any particular product or category of products; it does not protect the ownership of newspapers, TV sets, megaphones, broadcasting equipment, and so forth. (Neither does the Free Exercise of Religion clause give anyone the "Right to Keep and Bear" a church, a copy of the Bible, or a gold cross pendant.) In short, the First Amendment gives people the right to do things, not to own things. The Fifth Amendment protects property rights in those things, like anything else you can buy or own irrespective of why you acquired it or what you use it for.

So, does the Second Amendment do the same thing, viz., protect a right to do things to which ownership of property is incidental, or does it protect the right to own things irrespective of what can and will be done with them? To put it another way: Under the Second Amendment, is the doing of things the protected right to which the ownership of things is incidental, or is it the other way around?

Gun ownership, i.e., property rights in the weapon itself, as discussed above is at a minimum a prerequisite to the exercise of the Right to Keep and Bear Arms. You can't Keep and Bear Arms without, you know, Arms. But is ownership of one's desired Arms the full extent of the Right to Keep and Bear Arms (as "infringements" (1) and (2), supra, suggest), or is the gun itself only the physical instrumentality one might use, like a megaphone, a TV station or an Internet-connected PC, to exercise some other, civil right? And if it's the latter, what exactly is that other, civil right? What exactly does "Keep and Bear" mean, beyond ownership of, and therefore property rights in, the particular product which the Second Amendment designates may be "Ke[pt] and B[orne]" without infringement?

As mentioned above, gun fans whom I've encountered tend to resist the idea of gun ownership being a property right instead of a civil right. They seem to think, in arguing against the proposition, that property rights are somehow lesser rights than civil rights; that the Right to Keep and Bear Arms is somehow diminished by its being a property right instead of a civil right. So far, none have managed or attempted to explain why. Which is doubly interesting because, in my experience, self-described conservatives and libertarians really, really love property rights. They tend to hold property rights paramount above all other rights, including civil rights (the most obvious example being Rand Paul's argument against 42 U.S.C. § 1983, viz., the private-action provision of the Civil Rights Act). Some libertarians have even told me that property rights are the only legitimate rights in existence, that there is no such thing as "civil rights."

So, why do conservatives and libertarians object to the idea that the Right to Keep and Bear Arms is a property right? Why is it so important to them to think of it as a civil right and not a property right?

So far none have been able to answer, but I have a couple of theories.

The first is that they simply don't like the idea that the Second Amendment directly benefits the gun industry, whereas other manufacturers of other products have to deal with ordinary commercial regulation and products liability. They don't have anything against profit-making, they just see a vague negative connotation in anyone pointing out the undeniable fact that the gun industry benefits in this way from the Second Amendment. Of course there was no "gun industry" per se in 1790, so no one is suggesting the Founders singled out this one industry and product category for special treatment and profit-enabling, but the fact that it operates that way now is an uncomfortable truth for those who don't, or don't want to, see any cynicism on the part of the NRA and the gun industry in their zealous promotion of the Right to Keep and Bear Arms.

The second, and more trenchant, has to do with the dichotomy I mentioned above between civil rights and the products we sometimes use to help us exercise them. Gun fans with whom I've interacted are, if nothing else, the heroes of their own private mythology. Simply put, property rights are not heroic enough for them. In pointing out the distinction between First Amendment rights and their various instrumentalities, they apply the same distinction with respect to the Second Amendment; viz., guns are merely the physical instruments used to exercise a civil right, viz., the right to do any or all of the heroic things they imagine themselves doing with their guns.

Does the Second Amendment provide a "right" to do heroic things, or any particular heroic thing, with a gun? What heroic things are encompassed, definitionally, by the transitive verbs "keep" and "bear" (or, more to the point, the transitive verb phrases "keep Arms" and "bear Arms")? And whatever those specific heroic things are, where can they, or the specific "right" to do them, be found in the text of the Second Amendment?

Moreover, can those same heroic things be accomplished without "Arms"? If the Second Amendment provides a right to do heroic things, and those heroic things can be done without a gun or without a particular model or type of gun, and if gun ownership is merely incidental to the exercise of that right to do those heroic things, then how do gun-control laws such as background checks and discrete weapons restrictions violate that right?

I'm not saying these questions don't have answers. The conversation has come a long way from the initial thought experiment. I just find it interesting that so many "conservatives" and libertarians, ordinarily huge fans of property rights, capitalism and industrial profit, choose to pooh-pooh and dismiss those notions with respect to this particular type of property, capitalism and industrial profit.

Originally posted to GrafZeppelin127 on Fri May 03, 2013 at 09:17 AM PDT.

Also republished by Repeal or Amend the Second Amendment (RASA), Shut Down the NRA, and Community Spotlight.

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