The truth is that private ownership of property is the greatest instrument of freedom ever designed and it is sheer folly to speak of granting a man freedom while withholding that instrument from him.
~ Bertel M. Sparks
The last few days have been very educational. Since my article was published I have learned about the wide gamut that runs the gun rights spectrum. After being bombarded by dozens of emails, I decided it was time to write a follow up article since the amount of confusion, consequentialism, unprincipled and results-oriented counter-argumentation had reached a saturation point.
The alpha and the omega of everything that libertarians hold dear are rights. Rights are what keeps order in a world of scarce resources. Since there is scarcity, rights establish ownership to prevent or minimize conflicts; they determine who has a better claim on a particular thing or action. Indeed, the right to property is the only right that exists. You can only use your property and no one else’s. Every other “right” is not really a right properly understood but rather an abstraction of its use. Thus, we say that there is a “right of speech” because you own your body and your voice. There is a “right to travel” if you are the owner of the property or properties you occupy as you move on them. That there are non-private roads, areas and buildings makes no difference. The state has taken these resources and opened them by default with increasingly encroaching restrictions. One is not free to enter anyone’s home or farm or place of business without permission. The permission can be implicit (restaurants) or explicit (a home), but nevertheless there is a necessary discriminatory process where the property owner accepts or denies entrance or use. The ever controversial “right to keep and bear arms” is an abstraction of the right of property. In this case, it means the legitimate possession or use of the firearm and its possession and use in any owned property. Legitimate in the libertarian sense means to obtain without the use of coercion. Such peaceful methods include purchase, inheritance, gifts, etc. We do not consider government laws which limit such methods legitimate at all and the purpose of this article is not to attempt to determine what is the second best scenario in the management of public property.
We can see that there can never be any right without an accompanying owner attached to it (every right implies a property owner). There is a “right to life” because a person owns his own body and it would be illicit to use aggression against it. There is, similarly, a “right to your own labor” because the person doing the labor also owns it. The only legitimate rights, then, are those which stem from property (for more on how property is acquired and its relationship with rights, see Rothbard’s Ethics of Liberty).
A person has a right to X (an action, a thing) if and only if the legitimacy of his use of force to keep or do X cannot be coherently criticized. So the normative tie is “legitimacy” and the standard is whether the force used to defend the right can be criticized coherently. [Stephan Kinsella was helpful in finding that definition of rights, which is paraphrased from James A. Sadowsky’s “Private Property and Collective Ownership.” That same article explains how self-ownership implies property rights.] An example: a thug comes into my house to kill me. His intention is obvious and I am in imminent danger. Since I have a right to my body (“right to life”) and the thug does not have a right to my body (thus, my “right to not be killed”), my use of force to keep my life is legitimate. Any criticism here would not be coherent. If C, a third party, adopts a pacifist stance where the complete use of deadly force is forbidden, then any attempt I make to use defensive force would be, in C’s view, illegitimate. But this would imply that I am not the owner of my own body (and would be a slave). Surely this cannot be right since I have a “more legitimate” claim to it than the thug: I was born in it, have lived in it longer, etc. Self-ownership gives rise to all rights. Of course, the pacifist himself has the right to not use force in his own defense.
Let us also suppose that the thug and I are engaged in a gun fight. He yells “Do not kill me. Killing is wrong!” This is also inconsistent logic. The thug is claiming that he has the right to not be killed but cannot coherently criticize my legitimate use of force in self-defense since he himself is using lethal force against me. If he favors defensive force, then my actions are legitimate and his death would not constitute a crime; his view that “killing is wrong” would be incorrect. If he does not favor aggression, then he is also incoherent for he is in the process of aggression against my legitimate property. In the words of Stephan Kinsella, he is “estopped” from making any such claim. Thus, the only use of force that is legitimate is that to defend rights against the initiation (or threat) of aggression by others.
We now have a basis on which I can defend what I said in “The NRA vs the Parking Lot.”
Corporations and homes
The corporate form is irrelevant in the discussion. Several people were quite belligerent on this issue. They claimed that corporations are legal entities which are nothing but the extensions of the state and thus have no rights. This is only half true. Things do not have rights. Only people do. But whatever the corporation form, the owners, board of directors and whoever else has control over the policies has the legitimate right to manage the resources, assets and other property that is under the control of the company. No matter what form it takes, the features of the corporation can be replicated by private agreement. It does not need state privilege at all. [An interesting thread on corporations can be found here.] This is all besides the point, though. The point is whether they are using force to disarm citizens. If they are using force, it does not matter who commits that illicit disarmament (a lone thug or the government). It only matters that they are using force and thus violating rights. Private bans violate no rights.
Then there was the issue that since private lots are “open” or “open to the public” or otherwise are usually not enclosed like a building would be, that this would somehow require a different interpretation of rights and private property. Just because there are no physical restrictions, such as fences, does not mean that one should legitimize trespassing. There are many farms and other such lands where the division of property is not marked and is known only to the owners. Yet those are still properties with boundaries. Similarly, an employer’s parking lot can be open to the public, but this is still not a universal grant of power over that property to anyone who enters it. The parking lot is under the control of the owner and is making it available to employees, visitors, and anyone else who they allow entrance. To make restrictions on property rights based on the physical aspect of the property itself leads to errors. For example, suppose the gate to a farm or the door to a house is open. Am I still allowed to enter by default? Absolutely not. If I try to enter, the homeowner would be able to legitimately use force to evict me or to stop me from entering. If there is no homeowner present, I would still be trespassing.
Entering without permission violates property rights. Companies are free (laws that go against this are illegitimate anyway) to impose any policies they want on their land against unwanted trespassers. For example, gun store and gun range owners often impose certain policies. One of them is that customers entering the range and store must unload their firearms. A common complaint that I received over my previous article was that there was some sort of “rights bubble” that would allow people to keep firearms in their cars since they were inside some other exterior property. But then this would mean that a policy requiring customers to bring in only unloaded firearms is illegitimate. This is not so. The gun does not provide any sort of bubble protection against such policies over the restriction of loaded firearms because the imposition is not made against the gun itself but rather against the owner who has the right to accept or reject such policy. We see, then, that it is inconsistent to criticize the owner of a parking lot as much as it would be to criticize the gun range owner. Both are private entities acting on their property. That their policies are good or bad is subject to debate, but not their right to establish those policies to begin with. That right is sacrosanct and is no different than any other.
One particularly interesting comment claimed that “the only businesses that can, remotely, claim to be private property are the small sole proprietor businesses. Publicly traded companies are publicly owned and do not have private property rights.” Let us be clear that there is no such thing as publicly traded companies. They are massively distributed privately traded companies. If they were really public, could anyone freely take any stock or any asset the company holds? Yes, but this is not the case. How does one acquire a share of a company? By obtaining stock or some sort of other certificate of shared ownership. These goods are traded as any other good: people pay for them. Therefore, what is being exchanged are property rights. A stock can represent some value of the company and perhaps voting options and other perks. But these are properties that are not public. Just because the company is owned, managed or shared by many people does not mean that it is not private; companies, unlike governments, do not forcibly tax the citizenry. If the sole proprietor has the right to contract, then more than one person can agree to share financial resources, risk, assets and anything else that they own. This is true because there exists the right of association. The government does indeed legislate the procedure by which corporations are created and imparts upon them certain artificial rights and protections. Those are illegitimate as well.
On contracts and laws
Based on the interpretation of rights that I laid out earlier, we can also conclude that a property owner has the right to give away or sell any owned property. The owner can enter into contractual agreements where both parties agree to terms. These terms involve the exchange of property rights. A purchase is such an exchange. The buyer exchanges the rights to some amount of his money to the seller, who in turn exchanges the rights to a good or service for the money offered. Every contract should be considered legitimate as long as both consenting parties enter into it without coercion and they exchange rights for their own property. Thus, no one can sign away property that does not belong to him, or be compelled by force to enter into a contract: such things would constitute fraud and extortion.
A labor contract works the same way. The employee agrees to sell his labor for a certain amount of money, and the employer buys that labor. Notice that the employee has a right to his labor, but since his labor belongs to him, he can sell it for a profit or even give it away (charity work). An agreement to work for money does not eliminate this right at all. In fact, it strengthens his right to his own labor. How so? If the employer does not ask for the employee’s consent to work, then the employee becomes a slave. The employer, upholding the rights of the employee, must always respect both the employee’s right to his labor and also the right to contract. Contractual agreements, then, do not eliminate rights but rather uphold them. Otherwise, theft and slavery would be legitimate. Only by mutual consent can rights to goods and services be exchanged. Anything else is aggression.
The Florida law that would prevent an owner from banning guns on their own property constitutes an attack on his right to contract and also on his right to control his property. The law partially steals away control of the parking lot from the owner to the government. This is fascism at its best.
Most people who emailed objected to the idea that a parking lot policy cannot (and should not) infringe on rights. This is, to their credit, correct. Their mistake arises from the incorrect notion of rights. As I said before, rights can only be conceived with property. You have a right to your property and to its legitimate defense. You also have a right to contract since only you can decide what to do with it. The parking lot is private property. Your car is private property. You have no more right to enter that property with your car (it does not matter if there is a gun or not) than a stranger has a right to enter into your home. Only by permission and acceptance of terms can one enter into someone else’s property. Otherwise it is trespassing.
An employer’s policy of banning guns or enacting a code of conduct or establishing uniforms does not violate any rights at all. This is because there is a contract between both parties. The employer agrees to pay the employee if and only if he does not bring guns into the parking lot. The employee has the right to accept the agreement on those terms or go work elsewhere. No one is entitled to a job at a company (there is no “right of employment”) so the company has the right to base a given person’s employment on whatever conditions they want.
Notice the difference between the proposed law and the contract. While the contract uses no force whatsoever, the law would. Minimum wage is illegitimate because it steals control of the employer’s money; affirmative action is illegitimate because it steals control of the employer’s right to hire whoever he wants; both government gun control laws and laws that prevent private banning of guns by contract are illegitimate because they steal control of legitimate property. To be against the latter would mean that a homeowner would not have the right to deny entrance to an armed plumber. If the homeowner agrees, the plumber enters; if the homeowner does not, then the plumber cannot enter. Proportional force to evict the plumber would then be legitimate. Self-defense and proportionality of force are discussed in chapters 12 and 13 of Ethics of Liberty.
There is one final point to be made in this section: implicit contracts. An implicit contract is one based on the tacit understanding that consent has been given. This consent varies with time and though it is subject to interpretation, we can dare to make sound assumptions based on the behavior of most people. For example, when one enters a store, there is an implicit contract where the business owner has allowed people to go in with the purpose of buying a good or service. There is no need for an explicit contract to be posed on the doors, nor a person asking potential clients what their intentions are. We assume that people entering are doing so to buy something that is being offered by the business. So even without an explicit contract, we can rely on implicit consent to determine what is a rights violation in lieu of a detailed explicit contract between parties. Thus, there is no implicit consent, upon entering, for example, a Wal-Mart, to be searched or to be yelled at or to be slapped. That is, they have no right to do such things since there has been no consent, either explicit or implicit. Doing so would be criminal. This is not to say that they could have such entrance requirements. They are the property owner and thus can have virtually any conceivable policy, however stupid, so long as potential clients are given notice of them explicitly. Any non-traditional implied consent (implicit contract) would have to be expressly stated. The Wal-Mart client, in this case, has also agreed implicitly to pay for the items to be taken outside of the store. Most businesses do not post signs that say “You must pay for all goods and services consumed” as it is implied. It is an implicit contract that binds both parties.
Let us now go back to the example of the employer and the parking lot. It is silly to assume that policies that ban guns would not also have expressly stated the means of verifying that no guns are indeed being kept there. Insurance company inspectors can require managers to give them access to the place of business to assess risk and issue policies. But this does not give the inspectors a right to enter a private business in any way he chooses. The insurance company and the business would come to a contractual agreement to determine the manner in which the business would be inspected. Similarly, the company that bans guns would need to be as unambiguous as possible about the terms of enforcement. Since we assume that there is no implicit consent to be searched, it must be explicitly expressed in a company contract or policy so that the employer has a chance to review and accept or reject it. So it is silly to assume that a gun banning policy would mean that rights would be infringed. The company would not be authorized to break into an employer’s car and search it.
We see, then, that implicit contracts are useful in determining whether a person X has a right to person Y’s property when there are no explicit contracts. If a person enters my home, there is an implicit consent to be a guest; there is no consent given to that guest to take my property. If movers enter my home then they do have either an informal implicit contract or an explicit one but in both cases I have consented to their temporary taking of my property. Banning guns on a private lot behaves the same way.
The outcome of freedom
Many a message agreed with me in theory but had objections. They cited “it would not work” or “everyone would ban guns” or “it would be more dangerous” or “no one would be able to find work.” All these speculations, whether true or not, are completely irrelevant if we assume a rights-based argument. Yes, we live in government. Yes, it imposes illegitimate laws (taxes, ADA, welfare, social security, gun-control, affirmative action). But that does not make non-aggression and property rights theory any less valid. Humans are not perfect. There will always be murder and theft. But that does not take anything away from wishing there were less of it. It is not logically inconsistent to be both realistic (there are laws) and libertarian (there are bad laws).
My detractors complain that the Florida law somehow supports liberty since it upholds “gun rights.” This is not true. What it does is enact state control of private property. It initiates force against property owners and is therefore illegitimate. Gun fascists are dangerously close to the liberal reasoning that they themselves reject they use consequentialism and results-oriented reasoning as the basis for further control of private property. They are attacking the same property rights that allows private possession of firearms. There is the incorrect assumption that the utility of a specific a priori objective (fewer taxes, gun ownership, less regulation) makes liberty a dangerous proposal. Lacking forceful laws mandating a particular ex ante “freedom” could, in their view, jeopardize the objective. We cannot be sure what freedom will bring or exactly how it would work but as Thomas Jefferson said, “timid men prefer the calm of despotism to the tempestuous sea of liberty.” Once thing is certain, though: it will be better than government. It is wrong to object to freedom based on uncertainty or fear.
I also received quite a lot of email about the NRA itself. Some mentioned that the NRA, as a political lobbying group, tends to make concessions and that it has compromised on many occasions. Then there were those who had already abandoned them for their lack of integrity. I have not done research into each and every NRA-supported legislation, on each boycott they supported or every campaign that they have launched. That does not mean that I cannot point out a lack of consistency and a misunderstanding of rights. That the NRA in the past has been this way or that is irrelevant to my point. My analysis was focused solely on their support of the proposed Florida law and their reaction to the Utah ruling from a rights-oriented and principled libertarian view.
Personally, I think a “Don’t ask, don’t tell” policy would work. As a further provision, it would not be unwise for employers to keep a firearm or two available in the case that no one else has quick access to theirs. Criminals do not follow laws and will find ways to hurt and kill. Moreover, a company policy is just as easily ignored as a government law. That is not to say that private policies are not legitimate. They indeed are. But one cannot oppose their legitimate right to set up policies (which employees are free to reject). It would be excellent if the NRA were much more active in educating employers about gun safety and the benefits of ownership instead of launching boycotts against property owners.
Quite a good amount of email accused me of being, among others, socialist, liberal, and anti-gun. Far from it. I am an anti-state free marketer who believes in peaceful cooperation and the absolute defense of one’s property. I also own a firearm. If we accept the notion that property rights bring liberty, then we must also defend everyone else’s rights to do with their property what they desire. To oppose a policy enacted on private property and explicitly consented-to by employees, however silly it may seem, undermines the concept of rights to begin with. I had always assumed that pro-gun groups were strong on property rights. But if the sample of emails I have received is in any way statistically significant then there is a lot of work to do.
To reason backwards from a general and unprincipled objective of “guns everywhere for anyone who wants them” without a clear conception of rights and property is hazardously close to the same reasoning that gave rise to communism and socialism: to establish egalitarianism and then implement it with force from the top. These utilitarian tendencies by special interest groups always lead to unintended consequences and the minimization of rights.
The purpose of freedom is not necessarily guns, but freedom itself. It is time to decide if you are pro-rights or against them; you cannot be both and pretend to be coherent. If you love your guns and want to keep them, the state is the only enemy.
November 10, 2005