Charlatans and statists (but I repeat myself) are very fond of calling things they support “rights.”
Single-payer healthcare is a “right.” Speedy internet is a “right.” Public education is a “right.”
However, in libertarian and classical liberal theory, natural rights are fundamentally negative. Many are crystallized in the non-aggression principle (NAP): no person has the right to aggress against another peaceful person or his property. This principle forbids assault, murder, rape, theft, etc., but allows for defense against them. The NAP is simple but powerful, therefore many try to pervert it to include positive obligations.
“Freedom from fear” is one such perversion.
Somebody recently claimed that there is a positive right to “freedom from fear,” and that this justifies forcible civilian disarmament. He defined this as a right to “not feel vulnerable to aggressive attacks” and claimed that it is a valid extension of the NAP. He also asserted that this “right” is protected by the Ninth Amendment of the Constitution.
This is false.
Not only does this proposed “right” create far-reaching obligations, but it also violates several long-standing and useful legal and moral concepts. And to enforce this right would require the federal government to claim powers not delegated to it by the Constitution and therefore reserved to the states or the people, as stated in the Tenth Amendment.
However, before we begin to examine this right, we can learn something by considering its source.
Franklin D. Roosevelt first argued for “freedom from fear” in his famous “four freedoms” speech. This is the same Franklin Roosevelt who vastly expanded government power and regulation in deep disagreement with the Constitution.
He defined freedom from fear as “a worldwide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor”
Counter to what we might have expected, he didn’t even address privately-owned arms! Instead, he called for governments and militaries to reduce their arms, to prevent them from waging war. The private ownership of arms for self-defense, hunting, recreation, etc. was not even mentioned, and it is fair to point out that state arms reduction would make enforcement of civilian disarmament much more difficult.
In contrast, extending this “right” to peacefully held civilian arms would require the state to become even more intrusive, immoral, and destructive. This is reason enough to reject the right to “freedom from fear” as a fraudulent tool of would-be tyrants. However, there are even more good reasons to reject it. Several other legal and moral concepts support this conclusion.
The first concept is security in one’s property.
Civilian arms are merely tools. The state has no legitimate justification to demand an inventory of a person’s property, and has no moral authority to forbid the ownership of certain items.
In the anarchist view, this is akin to a robber demanding a victim tell him what loot he has—the victim has no legal or moral obligation to answer truthfully or at all. In the classical liberal view embraced by American founders such as James Madison and James Wilson, the powers of the state are derived from the people and delegated to the state. In the case of arbitrary searches and demands for confiscation of certain objects, the people as individuals hold no such power. Therefore, it can’t be delegated and the state cannot claim it.
Further, the right to property, and the related right to secure it, are fundamental aspects of free exchange, the division of labor, and the prosperity that those policies create. Legal insecurity of property gives the state or any other outlaw great power: the power to extort tribute, surveil people’s private business, make arbitrary demands, etc. Failure to recognize the institution of private property leads to disrespect for the institution itself and a corresponding loss of prosperity.
Therefore, the state, if it exists, should fervently enforce private property rights, and civilian ownership of arms is one such right.
The second concept — civilian disarmament violates the presumption of innocence.
Civilian disarmament makes peaceful people unjustly responsible for the actions of others who are aggressors. To maintain one’s freedom in the face of baseless accusations is a linchpin of civilization. The alternative is a cacophony of false accusations trying to silence, imprison, or even kill the accusers’ opponents.
In light of this, it is worth remembering that, in the current statist justice system, very often the process is the punishment. The presumption of innocence protects people from that process unless and until actual evidence is produced.
The third important concept violated by this so-called right is freedom from prior restraint.
This is the understanding that the mere ability to commit a crime or violate someone’s rights does not justify eliminating that ability. It is most commonly applied to speech and expression, but the concept works for any natural right.
The generally-accepted standard is that the state cannot curtail one’s ability to speak, write, or publish just because he might defame someone. Such action would be a prior restraint, and legally unacceptable. In order to silence someone, the slanderous or libelous act must occur first. Then, the complainant must take legal action and provide evidence to a court. The court then decides whether the evidence is sufficient to silence the offending speech.
The same idea applies to self-defense. Forcibly disarming peaceful persons because they might aggress is different only in degree from cutting out someone’s tongue because he might slander.
In classical liberalism and anarchism alike, aggressive or forcible acts for prior restraint of natural rights are illegitimate. The right to own the tools of self-defense is a clear and simple extension of the right to life. Therefore, the state cannot legitimately limit it.
The fourth concept is that justice must have a clear evidentiary basis.
Fear, unlike theft, fraud, assault, etc., is entirely within the mind. It is not measurable in any objective way and can be claimed by anyone at any time. Many people suffer from irrational fears, as well. Allowing fear to create legal obligations for others would force society to eradicate all spiders, tear down all tall buildings, and so much more. Since fear cannot be objectively measured and can be falsified or irrational, it cannot be evidence in a legal or moral sense. Evidence must take the form of observable actions or material facts. Simply owning an object is not evidence that the owner intends any particular use.
This criticism goes even further. Legal claims can be tested by a “reasonable person” standard: Would a reasonable person come to some specified conclusion based on presented evidence? Would a reasonable person believe certain actions to be justified? Civilian disarmament fails on both fronts.
First, no reasonable person sitting at home, looking at his computer or phone, and posting to Twitter about his right to “freedom from fear” actually feels an imminent, clear threat. If he did, he would be taking action to prevent the attack, not staring at social media. He is not afraid of his neighbors who might peacefully own guns.
Assuming he is acting in good faith (something a reasonable person could easily doubt), he is afraid of violent criminals, and unjustly projecting his fear onto innocents. More likely, however, he is acting in bad faith and simply thinks claiming fear will make his tyrannical urges more palatable to others.
In addition to looking at this fearful person’s actions, we can also use the reasonable person standard in this way: the only valid policies are those which a reasonable person could expect to achieve their stated purposes. The coercive power of the state is a dangerous weapon, and “it might help” is not a sufficient justification.
In the case of civilian disarmament, we can make a simple argument based on incentives: Civilian disarmament removes self-defensive weapons from the hands of peaceful people. This makes them more vulnerable to attacks from criminals, not less. Further, criminals have an incentive to commit crimes in areas where fewer civilians are armed. It is less dangerous for them.
These incentives raise the danger of attack, not lower it. Therefore, the proposed policy is counterproductive, even by the standards of the person proposing it. We see that, even if fear did create a positive obligation on the part of others, the better policy would be more training and more arms in the hands of peaceful people, not less. Thus, we see that civilian disarmament fails the reasonable person test in two crucial ways.
Finally, we can address the claim that a right to “freedom from fear” is protected by the Ninth Amendment.
As I have shown above, this idea requires the violation of several long-standing concepts in common law. Enforcing such a right would require powers not constitutionally delegated to the federal government. It would also violate several other amendments in the Bill of Rights — the Second Amendment, the Fourth Amendment, the Fifth Amendment, and the Tenth Amendment.
The notion that the Founders expected to enforce a right to “freedom from fear” is absurd, considering the fact that the states had large swaths of dangerous frontier land, had tense relations with many native tribes, and had just finished a war with a world superpower. Fear was an everyday part of life.
Nobody thought the government could eliminate fear. In fact, most people in the founding generation believed being armed mitigated fear. People were allowed and encouraged to carry arms for their own protection.
Tench Coxe wrote, “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…. [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
In a letter to his 15-year-old nephew, Thomas Jefferson wrote, “As to the species of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprize, and independance to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.”
Civilian disarmament was not even on the map for the founding generation.
From all this, we can conclude that a right to “freedom from fear” is an incoherent mess, at best.
Not only is its extension from state disarmament to civilian disarmament not justified by its original proponents, but it would also require the state to seriously violate several important legal and moral principles. The NAP does not support preemptive strikes against peaceful people with only the aggressor’s word as justification.
Irrational fears held by irrational people do not and should not obligate everyone else to bend to their whims. In libertarian theory, the only positive rights are those freely agreed to beforehand. The Constitution denies to the federal government most of the powers it would need to enforce such a right.
More generally, there is no right to demand society eliminate objects of one’s fears, and enforcing such a right would thrust society into abject tyranny.