1. Introduction

This is not an essay on the Bill of Rights. The second amendment to the Constitution of the United States guarantees Americans the legal right to bear arms. The English Bill of Rights 1688 does the same for English Protestants (and other Acts confirmed the rights of English Catholics). Unfortunately, courts in both countries have failed to honour these rights and have permitted governments to infringe them to an ever greater degree.

However, a legal right is not the same as a moral right. A great deal of needless argument could be avoided if people would only keep this in mind. A moral right is that which it is morally wrong to violate (or at least morally wrong to violate without making full restitution); it depends for its validity not upon any legal or social order but upon an objective morality. You have a right not to be murdered (loosely called a "right to life"), because if I murder you I do you a wrong, even in a Hobbesian or Lockean "state of nature" in which there is neither government nor human law. By contrast, a legal right is an entitlement or enforceable claim recognised and guaranteed by a court of law or system of justice; it is valid only within the society or jurisdiction within which it is enacted or admitted.

In a just regime, legal and moral rights correspond closely; that is, the courts promote justice by ensuring that, wherever practicable, moral rights are also recognised as legal rights. In a perfectly just regime legal and moral rights would presumably be identical. In reality, there are many moral rights most legal systems fail to acknowledge or enforce; and worse, many well-defined legal rights entail the direct or indirect violation of the moral rights of others (for example, the legal right to a state pension paid for by the wrongful seizure of the property of others, ie by taxation).

This essay, then, will explore the nature and extent of the moral right to bear arms. I will assume that the legal right ought to correspond to this, but will not concern myself further with dissecting such legal rights and prohibitions as may currently exist. I will also assume that everyone has the moral right not to be prevented from doing (or ought to be at liberty to do) anything that does not violate the specific rights of others (not the "equal" rights of others, because in general no two people will own an identical set of rights or, putting the same thing another way, an identical bundle of assets).

2. The Right To Bear Arms Is Not Absolute

Do you have an unconditional moral right to use any weapon you like, anywhere you like, any time you like, any way you like? Obviously not. There must be some limitations to your rightful freedom. Thus although you may have the right to use your own weapons, or ones you have hired or borrowed, you don't normally have the right to use other people's weapons without their permission. You don't have the right to steal somebody else's rifle every time you want to go hunting — not even if you give it back afterwards. This should scarcely need pointing out. It should be even more obvious that you don't have the right to use a weapon in ways that violate other people's rights, such as holding them up at gun point and robbing them.

And although you may have the right to bear arms on your own land, in general you do not have the right to bear arms on other people's land, except with their permission and under such conditions as they choose to impose. If you don't like the conditions, stay off their land. Quite clearly, you do not have the right to take any weapon (or anything else) onto another's property against his will (there may be minor exceptions where you own a right of access, or there is a public right of way across the property, or where your presence on the property is coerced, or where you are enforcing justice against the owner). Unfortunately, many earnest, even, dare I say, fanatical, defenders of the right to bear arms refuse to accept any such constraint; they seem to imagine that they are entitled to go armed wherever and whenever they want, usually basing their claim upon what is in any case surely a misinterpretation of the Bill of Rights.

Since most reasonable people will take the existence of constraints of this sort for granted, the reader may wonder why I am bothering to spell them out. I do so in order to prove the lemma that the right to bear arms is not absolute but conditional, as a prelude to the exploration of some less obvious and potentially more contentious restrictions.

3. You Have The Right To Own Any Weapon You Can Afford To Insure

Is the right to bear arms limited to personal weapons like knives, blunderbusses or bolt action rifles? Or to pre-industrial weapons like bows and spears? Hardly. It would be a strange and arbitrary moral principle that applied different rules to a Mill's bomb and a Claymore mine, a mortar and a ballista, a crossbow and an Armalite. No. The same basic precepts must hold across the board, concerned less with the nature of the weapon than with the responsibilities of the agent.

So. Your right to bear arms encompasses the right to buy, sell, own, carry or use, a knife, a sword, a sidearm, a rifle, a machine gun, an artillery piece, a tank, a ballistic missile, a heap of hydrogen bombs or the starship Enterprise. No weapon is too nasty or too powerful, no quantity of weapons too great — so long as you can pay for any harm you may thereby inadvertently inflict on other people. In practice this will mean carrying third party insurance to cover all the risks your use or ownership may impose upon others, and for which you are liable, but which may be beyond your ability to pay.

The principle is the same as that involved in driving a car, a dangerous activity that the law quite properly forbids you to undertake without third party insurance. Why insurance? Well, whatever you do, you are the one responsible for your actions and their consequences; if you cause injury or damage, you must pay for it; you have violated another's rights. Now if the damage inflicted were always within your ability to pay, there would be no need to carry insurance; you could pay up as and when it became necessary. Unfortunately, road accidents sometimes kill or maim several people at once, and you yourself may die in the accident; so the damage your driving may cause may exceed your means or your estate. If you are not properly insured you are consequently violating people's rights by subjecting them to a risk you cannot cover. Insurance allows you to spread the risk, paying the predictable and affordable expectation value of the loss rather than the actual unpredictable and possibly unaffordable amount.

If you carry a firearm, it may go off accidentally and kill someone. You are morally obliged to carry third party insurance against that event. If you carry a grenade, it may kill half a dozen. The insurance premium should take that into account. Different weapons used in different ways by different people will entail different risks, and thus different premiums; the same principle of liability will apply in every case, but the costs of ownership will vary.

Since ordinary firearms cause proportionately fewer accidents than cars, insuring them should be relatively inexpensive, starting with keeping a single firearm in safe storage, then keeping on display in a private house, shooting at an indoor range, shooting at an outdoor range, carrying in a public place or private car, hunting on private land, hunting on public land or land with public access, and so forth; keeping or using more than one firearm will cost a little more. Insurance companies, operating on the open market, should have little difficulty in assessing the risks and calculating the appropriate premiums.

What of more powerful weapons, like tanks or gunships? Clearly, the insurance premiums are likely to be rather higher, perhaps higher than you would be willing to pay, but the same basic principles apply. In practice, in a free society defended by citizens' militia rather than a standing army, most such weapons are likely to be bought, operated and insured by the militia groups, jointly owned by their members. Some weapons will no doubt also be owned by companies and hired out as required.

4. Hydrogen Bombs May Be Hard To Insure

If you own a hydrogen bomb the free market premium is likely to be astronomical, though you could probably bring it down to an affordable level by agreeing to store the device in an underground containment structure in an area of low population density, with good cryptographic and physical security for the arming mechanism, so that no single person would be able to detonate it.

There is however a further problem. Although the chance of an accident could be reduced to affordably low levels, the magnitude of the potential disaster if your bomb were ever to explode in the middle of a city may remain unacceptably high. By "unacceptably high" I mean that the loss might exceed the resources of even a major insurance company or, with reinsurance, the resources of all the insurance companies put together. Even if the available resources were theoretically sufficient, the company might understandably decline to venture all of them on a single risk. To insure a hydrogen bomb, or similarly powerful device, insurers and underwriters might need to draw on a significant fraction of the combined resources of the entire country, or to lay off the risk internationally; they might prefer not to bother. By comparison, a modest fission bomb of a few kilotons yield should be much more readily insurable, since the potential damage would not be beyond a largish company's means.

5. The Right To Bear Arms Entails Strict Liability

As I pointed out above, ownership of potentially dangerous articles carries responsibility for any resulting harm to others. Third party insurance to cover all such risks beyond your means is morally (and should be legally) mandatory. Under strict liability these risks include not only simple accidents but also the possibility that either you or someone else with access to the articles will become deranged and use them to harm others; or that they will be stolen and fall into the hands of terrorists, madmen or criminals; or that they will fall into the hands of people who do not understand the dangers; and so on. It is your responsibility to ensure that all the consequences of your ownership, direct and indirect, will be paid for; or at the very least, all of them that could reasonably be foreseen. This does not mean that you must pay for all the consequences yourself, since other people are responsible for their own actions too, only that you must make certain that someone will pay.

The moral point here is quite subtle and likely to be resisted. It says that if you invent, manufacture, sell or keep any item that may be misused you have a responsibility to those who may be harmed thereby, even if you yourself are not the one who misuses it. Thus, if you sell someone a firearm and it causes damage, either accidental or deliberate, the new owner is liable; if he is uninsured and cannot or will not pay, he is morally culpable, but the liability now falls on you; if you cannot or will not pay, you are also culpable, and the liability falls on whoever had it before you; and so on, until we come to someone who is either willing and able to pay or who carries insurance against his potential liability. The chain of liability may also be broken by the practice of indemnification, whereby the purchaser or his insurer accepts full responsibility for any future misuse; but for this to be valid, it is first necessary that the indemnifier be able actually to pay for or service this responsibility, and the seller has the moral responsibility to make sure that this is so, or to take out insurance against the possibility that he cannot. Moral liability is not easily escaped.

Now, unlimited recursive liability is such a nuisance that in an organised society under the rule of law it is usual for the state or legal system to indemnify agents acting in good faith against liability for the wrongful or unlawful acts of others, If you sell someone a cricket bat and he uses it to smash someone's head in, you are held indemnified against any responsibility for the murder (unless, of course, you had reason to believe the purchaser intended such violence at the time he bought the bat from you). The responsibility now lies with the murderer himself and with the state. That is, the courts are morally bound to make restitution, whether or not they are able to recover sufficient damages from the individual criminal. Wrongful acts punished by the courts should naturally include such acts of omission as failing to take out mandatory third party insurance.

Yet not even the state can fully indemnify against all wrongful acts. Under a just regime the expectation value of payments by convicted offenders matches the expectation value of damages paid to victims plus costs; this is the insurance function of the courts. If a drunk does £100 of damage and only one in three drunks are caught and convicted, fine each convicted drunk £300 plus costs, but pay out £100 to the victims for each complaint. This works fine so long as the average fines or premiums can be set high enough to match the final payouts. For sufficiently horrendous crimes, the courts may not be able to make this equation work; ordinary firearms sales should not be affected, but it is unlikely that the state could or would indemnify merchants against liabilities arising from the sale of hydrogen bombs unless the sale included full insurance against future criminal acts beyond the perpetrators' resources. This could naturally be expected to increase the cost of ownership of such weapons considerably.

I must emphasise again that if you facilitate the commission of wrongs beyond the perpetrators' ability to make good, you cannot escape the ultimate moral responsibility to make good those wrongs yourself. Nevertheless, your liability only extends to the excess of harm beyond the perpetrators' ability to pay; even then the perpetrators still owe you the rest and, alive or dead, are morally bound to repay you if ever they can (such as in the event of their receiving an unexpected gift or legacy or their estates' collecting royalties on a book about their crimes).

6. Insurance Is Society Dependent

There is a further difficulty with this moral analysis, which is that systems of indemnification and insurance are dependent upon the existence of an orderly society for their functioning. That is, they are viable only where there are legal as well as moral rights. How does this affect the moral right to bear arms in a state of nature, where there is no law?

The answer to this is probably that if you wish to engage in any such risky behaviour you have a moral obligation first to negotiate an agreement with those whose lives or property you are risking, or with those who jointly have the resources to make good the damages you may cause. In effect, this implies that non-isolated persons in a state of nature have a moral obligation to set up a social contract or otherwise create a just and functioning society; living without law or covenants, except in strict isolation or innocence, does not seem to be a morally viable option. In other words, unless you are a Robinson Crusoe alone on his island, you are under a moral obligation not to remain in a state of nature — an intriguing departure from the usual view of the state of nature as a kind of unattainable perfection.

7. Conclusions

The bottom line is that you have the moral right to bear arms in any way that does not violate the rights of others, such as taking other people's weapons without their consent, taking weapons onto other people's property without their consent, or using weapons to coerce other people wrongfully. You do not have the right to impose risks on other people that you cannot pay for, so if you wish to engage in the risky business of bearing arms it is morally mandatory for you to carry adequate third party insurance. However, if you can afford the insurance there is no limit on the number or nature of the arms you may bear. Except as it may affect the magnitude of your insurance premiums it is irrelevant whether you want your weapons for sport or hunting or display or self defence or any other reason.

I leave as an exercise for the reader the question of whether you have a right to bear arms without proper insurance when the government has wrongfully prohibited you from bearing those arms, or otherwise prevented you from taking out this insurance.

© Paul Birch, 30th Sept. 2000

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