Gun control and the regulation of fundamental rights

Abstract

Introduction Gun control (1) has always had two vectors: the first, common sense, regulatory interest inherent in the rule of law, namely, keep away from the untrustworthy and incompetent; the second, an ancient but still-live controversy in political philosophy, namely, whether an explication of full and equal citizenship must include serious individual right possess arms. In practice, these vectors have tended converge. For example, in America's colonial period, classes of persons regarded as ineligible or unfit for citizenship (the indigenous population and imported slaves) were specifically excluded from gun rights on grounds that they were untrustworthy, violence-prone and / or incompetent. (2) Over time, black became increasingly numerous. (3) This development raised questions of philosophy and of policy--should there be distinction between freemen and and, if so, should this distinction be recognized in gun law? And indeed, white unwillingness recognize blacks as equal citizens prompted enactment of distinctive gun control measures for free persons of color. (4) This free-but-not-(full)citizen regime reached its apogee in Dred Scott, in which the U.S. Supreme Court ruled that blacks lacked bring claims into federal court. In his majority opinion, Chief Justice Taney precluded blacks from claiming as their patrimony the privileges and immunities of citizenship, alluded in Article IV, Section 2 of the Federal Constitution. How so? Because think otherwise would entail (in Taney's mind) an absurdity, namely, recognizing (contrary fact) that blacks were entitled to keep and carry wherever they went. (5) America was not unique in premising its gun-control measures on equality-skepticism and/or trustworthiness-skepticism. In the twelfth century, Henry II enacted The Assize of Arms. This restricted possession of arms knights (professional fighters, often retained by aristocrats defend their interests), who held chattels of rent of 16 marks, and burgesses who had sworn allegiance the King. Notably, Henry specifically disabled Jews from possessing Arms. (6) The King's message those disabled from possessing arms could not be more clear: We Do Not Trust You! Aristotle on Citizenship and Arms LaFollete claims: guns are mere means independent They are not of that citizenship. (7) LaFollette's disagreement with the major architect of the Western conception of citizenship could not be starker. Aristotle, in his Politics, argues that the basic principles shaping political society's understanding of who its full citizens are determine its understanding of the who, what, where and of arms possession, namely, its constitution. (8) By constitution, Aristotle did not mean what LaFollette seems mean, namely, written outline of important legal rights amendable, albeit with difficulty, by democratic process. On the contrary, by Aristotle meant society's fundamental ethical understanding concerning how those with serious standing in its political life should be identified. In other words, constitution expresses political society's understanding of who qualify as its full and equal citizens, of who should be recognized as having a right have rights. For Aristotle, you can tell who the citizens are by the rights they bear--the right participate in political affairs, hold public offices of trust, own land, and possess arms. Taken together, these rights constitute full By implication, deleting any of them, by placing person under disability for example, diminishes his On Aristotle's view, the inequality between full citizens who have serious right bear arms and those who do not is constitutionally fundamental, constitutive of citizenship--not derivative. …