Freedom from Fear

by Neil H. Buchanan

President Franklin Delano Roosevelt's "Four Freedoms Speech," which was in fact his 1941 State of the Union address, identified two ideas drawn directly from the nation's founding documents -- freedom of speech and freedom of worship -- along with two that are not as familiar and less often discussed -- freedom from want and freedom from fear.

FDR spoke those words nearly a year before the attack on Pearl Harbor but well after the Axis powers had launched what became World War II, so he understandably focused on the fear of the aggression that might come from foreign military powers: "The fourth is freedom from fear, which, translated into world terms, means a world-wide 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—anywhere in the world."  The four freedoms became essential components of the Universal Declaration of Human Rights, adopted by the UN General Assembly a bit less than eight years later.

Here, I want to talk about the freedom from fear, but to translate it back into domestic terms.  Specifically, I want to discuss why it is so important to make people in this country safe from the epidemic of gun violence that has overwhelmed the US, and to explain why this is a much more fundamental freedom than the "liberty" that people who oppose any regulation of guns talk about.

The short version of the story is that there is a straightforward way to understand freedom that would protect people by attempting to bring about, in Roosevelt's words, a domestic "reduction of armaments to such a point and in such a thorough fashion that no [malevolent actor] will be in a position to commit an act of physical aggression against any neighbor."  Sound radical?  If so, it is only because we have stopped thinking about how much the fear of being gunned down -- and, far too often, the reality of wholesale death -- impinges on people's freedom.

Earlier this week, my column here on Dorf on Law drew inspiration from the recent mass shooting at Michigan State University on February 13.  My decision to frame the piece around that incident was inevitably poignant, however, because we have thus far in 2023 averaged almost twelve mass shootings per week.  So even by the time I wrote that column eight days later, we had already put Michigan State's carnage in the rearview mirror.

In that column, I noted that the US has a much, much higher murder rate than our peer countries, including the Netherlands, where I spent the last eight weeks.  Noting that all of those countries have very strict gun-control laws, I wrote: "I do not feel less free in any of these countries, to say the least."  Here, I want to be clear about what that statement did not mean, along with what I in fact meant to say.

A trivial interpretation of my words would go like this: "Neil Buchanan does not own guns, nor does he want to own guns, so of course he does not feel the loss of freedom when he is in those other countries that other people might feel under the weight of their onerous restrictions of freedom."  And it is true -- again, trivially so -- that people who would not try to do something that is prohibited would not feel put upon by a prohibition.  Few people want to be cannibals, so we do not have long debates about how would-be cannibals' freedom to eat people is under attack.  And only people who would want to send children to work in coal mines would consciously think that child labor laws are reducing the freedoms that they cherish.

What I in fact meant with those words was that I do feel much more free in places where I am not worried that the people around me are armed with weapons of immediate death.  Yet somehow the loss of freedom by those of us who live in fear and who thus alter our daily lives in ways that we wish were unnecessary does not count as a loss of freedom.

I should add here that I am not interested for present purposes in whether somehow gun ownership is more prized because it is "in the Constitution," whereas freedom from fear is not.  Heller's adoption of the "individual rights view" was completely ahistorical, but more importantly, my interest here is not in getting into the tedious positive-versus-negative rights debate and all of that over-plowed ground.  The current Supreme Court has made it abundantly clear that the Constitution means whatever the conservative movement wants it to mean.  But that is not an argument.

The notion of being free from fear, and weighing that freedom against others' freedom to instill fear, is hardly limited to the gun debate.  In my 20's, I had occasion to drive across the US (Boston to the Bay Area and back) one summer.  I did so alone, and whenever I stopped for gas, for food, or simply to stretch my legs, I occasionally felt out of place.  Yet I thought: "Well, I'm safe.  I'm a young White guy, and even if my clothes and license plate make me stand out a bit, I'll be fine.  If I were a person of color, or a woman traveling alone, however, yikes."  Readers who have seen the weird-but-fantastic miniseries "Lovecraft Country" have seen a searing depiction of "sundown towns," where any Black person who was out after sundown was likely to be attacked and killed.

During my 1L year, my Crim professor kicked off the section of the course discussing sexual violence by inviting some 2L and 3L women to lead a discussion of what we do to protect ourselves when we are in public.  The discussion was fascinating, because two leaders stood at sections of the board with "Men" and "Women" written across the top, then asked the students to call out what they do when they go to their cars after dark.  The women immediately started saying things like, "I carry my keys between my fingers and make a fist," "I check under the car and in the back seat before getting in," and so on.  The "Women" side of the board filled up quickly, while the men all looked blankly at each other, saying, "Have you ever even thought about this?"  Our side of the board had exactly zero entries.

So when I wrote on Tuesday that "I do not feel less free in any of these countries, to say the least," I was being indirect when I should have been direct.  As I wrote above, I do feel more free in those countries, because I am able to live a life without the kind of fear that grips Americans more and more, a fear that is only worsened when we see that "thoughts and prayers" are about all that this country's sclerotic political system will tolerate.  I am able to do things in those countries that I cannot do here, which feels an awful lot like freedom.

We often hear variations on the aphorism that "[y]our right to swing your arms ends just where the other man’s nose begins."  How do we think about that idea in a context in which the other person wants to carry an item that can blast a person's nose out of the back of his head?  The impoverished response would be to say, "As long as I don't pull the trigger when the barrel is pointing at you, I'm good.  Nothing I did diminished your freedom."  In an environment in which we know that more guns and more death go together, however, it is simply inadequate to the point of bad faith to say that the people who change their lives in response -- including by acquiring their own weapons, increasing the likelihood of their own deaths and those of their immediate families -- are just as free as they would have been had they been able to live without fear.

I am not naive enough to imagine that gun advocates in the US will now say, "Gee, you're right, we have been ignoring the enormous loss of freedom that people experience because of this country's obsession with weapons of war."  I am, however, tired of listening to a non-debate that only takes seriously one notion of freedom.  All of us are living lives of diminished freedom without even noticing that it has happened.