What Amending the Constitution Cannot Do

An underappreciated fact about U.S. Constitutional law is that it recognizes sources of authority prior to the U.S. Constitution itself. It is settled law that the Bill of Rights, in particular, does not confer rights, it only recognizes “natural rights” which pre-exist the Bill of Rights and the Constitution and which – this is the key point – cannot be abolished by amending the Constitution.

What is the nature of these “natural rights”? The Founding Fathers of the U.S. spoke of them as an endowment by the Creator in the Declaration of Independence. This is, in modern terms, a much less religious statement than meets the eye. At the time the Declaration was written, many forward-thinking intellectuals (influenced by a now-largely-extinct movement called Deism) used the terms “God” and “Natural Law” almost interchangeably. (I have written before about how later waves of religious revival have obscured this point.)

In modern terms, we can think of “natural rights” as the political and social rules which are required to sustain “life, liberty, and the pursuit of happiness”, and derive them not from religion but from game-theoretic analysis of the behavior of competing agents in a political system.

The theorists of English Republicanism in the century and a half before the Declaration of Independence did not have the language of economics or game theory, but they developed a pretty firm grasp on the theory of natural rights by studying the historical failure modes of various political systems.

The English Republican defenses of (for example) the right to free speech were very simple: if these are not the rules of your polity, your polity will come to a bad end in tyranny and chaos and great suffering. In modern terms, they were seeking stable cooperative equilibria under the recognition that most possible sets of political rules do not yield it.

This was the thinking behind the U.S. Constitution, in general, and the Bill of Rights in particular. Because natural rights are a consequence of natural law, no law can abrogate them. Laws which intend to abrogate them are contrary to the purpose of law itself, which is to sustain a stable cooperative equilibrium in which humans can flourish, and therefore no one is bound to obey them.

This is written into black-letter law in the U.S. about even the most contentious of the ten articles of the Bill of Rights, the Second Amendment. In United States v. Cruikshank, 92 U. S. 542, 553 (1876), the Supreme Court said of the individual right to bear arms “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” This language was quoted and reaffirmed in the 2008 Heller vs. D.C. decision.

Neither is it in any manner dependent upon that instrument for its existence. This is English Republicanism’s theory of natural rights limiting not merely what the law can do, but what amendments to the Constitution can do. The right to bear arms (and the right to free speech, and the other rights recognized by the first ten amendments) are not conditional; they are not grants made by law, government, or the Constitution that can be withdrawn by amending these institutions. They are prior to all this apparatus.

Switching back to a game-theoretical perspective, we can to some extent discover the meaning and extent of these rights by investigating their consequences. We can ask of rival interpretations of edge cases around these rights whether they support or hinder stable cooperative equilibrium. What we cannot do is pretend that the broad thrust of these rights is negotiable without fundamentally repudiating the entirety of the American system clear back to the Constitution and its pre-Constitutional foundations.

This has mainly been an essay about the meaning of “natural rights” and the relationship between law, philosophy, and the Constitution. But I mean to give it teeth by addressing one current political issue: could the First or Second Amendments be, in any meaningful sense, repealed? Can any legal or Constitutional process abolish the individual rights to free speech and to bear arms?

It should be clear from the foregoing that the answer is “no”. Amendment of the Constitution cannot abolish a right that was not granted by the Constitution in the first place. People who fail to grasp this understand neither the law, nor the Constitution, nor the Constitution’s ethical foundations.

111 thoughts on “What Amending the Constitution Cannot Do

  1. While I agree with this in its entirety (after all, I did point it out in a previous discussion), I must take exception to one bit.

    Personally, I formulate “rights granted by God”, as an atheist as “rights which no government of a free society may validly infringe”. The religious will disagree, but to me, the statement deprives the right of none of its force.

    However, I disagree that repealing the Second Amendment would not be sufficient for our government to infringe upon the right of the people to keep and bear arms. I agree that such infringement would not be legitimate, but all it takes is five justices of the Supreme Court to disagree, and we are dangerously close to that line…

  2. It’s true that the framers of the US constitution believed in natural rights, that states could either recognise or not, but could not repeal. It doesn’t follow that that theory was enacted into law. I’m not sure that there’s any meaningful way in which a theory of rights can be made law. One either believes in it or one doesn’t. Laws can be enacted, and are law whether one agrees with them or not. Rules of interpretation ditto. But theories?

    In any event, supposing we all accept natural law theory, it follows that no state can repeal the rights that we believe natural law confers. If we believe that there is a natural right to trial by jury on civil cases worth more than $20 (in 1788 terms), then it follows that almost every other country in the world (and several US states) are violating natural law by failiing to recognise this right. Natural law theorists in those countries would reply that they don’t agree that this is a natural right, and believe themselves to be in full compliance with natural law. The same would apply to the RKBA.

    As a matter of US law, though, none of this matters. It’s true that the Bill of Rights doesn’t create rights but recognises (what the framers believed to be) existing ones. But it is the only thing that protects those rights. Without it those rights would be just as valid, in some theoretical way, but they would have no protection from Congress. Congress would have the legal authority to violate them, those laws would be constitutionally valid, and honest judges would be required to acknowledge that and enforce them.

    Natural rights theory is not a legal principle, it’s a moral one; laws that violate it are immoral, but so long as they’re constitutional they’re legally valid. For instance the fugitive slave laws, which the constitution not only permitted but required, were US laws, despite their immorality. A law banning guns would be valid US law were it not for the 2A.

  3. Lysander Spooner approves of your essay: “A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, (or by any other name indicating his true character,) or by millions, calling themselves a government.”

    http://oll.libertyfund.org/titles/2195#Spooner_1483_18

  4. Take the example of state laws against sodomy. I agree with Justice Thomas that while states ought not to enact such laws, nothing in the US constitution forbids them, and therefore Lawrence was wrongly decided. Natural law theory (or at least the version that Thomas, I, and I think most people here accept) says such laws are wrong, but natural law theory is not legally binding. The constitution is binding, and it doesn’t say that.

  5. Lysander Spooner approves of your essay:

    Spooner was a moral theorist, not a legal one. He was concerned with what people ought to do, and didn’t care what laws might exist, or how they might be valid or invalid.

  6. >People who fail to grasp this understand neither the law, nor the Constitution, nor the Constitution’s ethical foundations.

    Or they don’t care. They can understand, and still be opposed. They want what they want, and if they have the power to make it so they will.

  7. Was it not one of the arguments against the first ten amendments, that other natural rights would not be recognised, because the weren’t listed?

    Regarding the second amendment, why is this `right’ infringed upon for various people (e.g. those convicted of felonies), and yet it is not much talked about? Is it because it’s not a savvy political move to say “yes, free speech, guns, and the right for ones things to be secure from undue search are all rights that even felons have”?

  8. Regarding the second amendment, why is this `right’ infringed upon for various people (e.g. those convicted of felonies), and yet it is not much talked about?

    At some level, if you grant the state the power to take away rights as punishment for the commission of a crime, which fundamentally all criminal punishment is, it’s hard to then make a distinction that some taking away of rights is acceptable and others isn’t (prohibitions of cruel and unusual punishment notwithstanding). Most Americans seem to consider that taking away a person’s liberties as punishment for the commission of a crime by throwing them in prison is acceptable. While I see your point, I don’t see that criminal sentences depriving individuals of multiple liberties for different amounts of time is automatically wrong or illogical.

  9. It should be remembered that the Constitution is not a list of things the People are allowed to do. It is a list of things the government is prohibited from doing. When we lose sight of that, we lose its intended perspective.

  10. I would argue that long-term evolutionary success is ultimate arbiter of what constitutes “natural rights” or natural laws. The surface of the Earth is a cauldron of living things, and Homo sapiens are clearly at the top of the pyramid. We got here via brutal natural selection that led to brain encephalization and sentience. Civilization out-competed barbarism; and then population exploded, transforming us from small bands of autonomous hunter-gatherers into dense communities of synergistic cooperation. The invention of communal law was instrumental in minimizing debilitating social conflict (remnant of our natural selection past) and maximizing reward for productivity. We are here today as the end-product of that which has worked thus far.

    In this context, I would also suggest that a good test for natural rights is . . . are you willing to fight to the death in order to keep them?

  11. Was it not one of the arguments against the first ten amendments, that other natural rights would not be recognised, because the weren’t listed?

    Yes, and it was a valid argument, because it’s a fundamental principle of legal interpretation that if there’s a list then anything not listed is excluded. And that’s why the 9A explicitly says that this rule should not be applied to the Bill of Rights.

    Regarding the second amendment, why is this `right’ infringed upon for various people (e.g. those convicted of felonies), and yet it is not much talked about? Is it because it’s not a savvy political move to say “yes, free speech, guns, and the right for ones things to be secure from undue search are all rights that even felons have”?

    What makes you think that felons do have these rights? People in the 18th and 19th century didn’t generally think they did. Deprivation of certain rights, or all rights (as in the case of capital punishment) is a legitimate penalty for a felony. Remember that the 13th amendment explicitly allows slavery as a criminal penalty.

  12. The Constitution doesn’t matter. Natural rights don’t matter. No construct of law matters in the physical world. All that matters is what rights the people can people preserve for themselves, by political power or persuasion or naked force. Those are the only rights you have.

  13. As a Catholic, I should warn the atheists here that accepting the reality of the natural law is at *least* halfway to accepting the reality of the classical-theist God. Jeffersonian Deists were in the middle of bargaining *down* from classical theism to nothing, which is why they acknowledge it – it was discarded later.

    Talk of game theory and stable equilibria is just a more mathematically rigorous (if you take the time) way of doing what Aquinas did and deriving the natural law from the observed consequences of following or opposing it. (It’s also what Confucius did – Christianity by no means has a monopoly on philosophical truth, just on genuine divine revelation…)

  14. >People who fail to grasp this understand neither the law, nor the Constitution, nor the Constitution’s ethical foundations.

    And so when the executive, or the legislature, or the judiciary infringe on these precepts, what is the people’s recourse? We are one justice away from redefining the second amendment. How can that happen to a natural right? The justices are appointed for life and are un-recallable. We have a president who makes law through selective enforcement and executive orders. The check in the constitution is for the congress to hold the president accountable and use the powers of the purse or impeachment. They do not.
    The founders systems of checks and balances are predicated on a constitution written without the 14th (section 4), 16th, and 17th amendments. With these in place the rise of a large national government and the power that derives from it was inevitable. The ability to create unlimited public debt and spend it without regard. The creation of the income tax system that has enabled loopholes and special protections. The founders envisioned a small central government with strong states. We have the opposite. The 10th amendment has become a joke. The seeds of this mess were planted long before our births, however it will most likely fall to our generation to resolve.

  15. Really? Does the line about not being allowed to yell ‘Fire!’ in a crowded theater imply that there are valid moral and legal reasons to put limitations on these so-called ‘natural rights’?

    1) Arms … The way the amendment is written – contrary to what SCOTUS held – requires an individual to be part of a militia. Strangely, most of the idjits screaming loudest haven’t the slightest clue what a co-operative defensive force is about. A perfectly reasonable limitation would be to require someone to be part of a militia to have an ‘arm’. Of course, ‘a well ordered militia’ is not explicitly defined, and common sense has never been part of the US legal system.

    2) Arms … back in the day, single shot rifles and pistols. Most of the changes in guns have been to make them better, but there isn’t any arbitrary line dividing, say, an AR-15, AK-97 from what the writers had. Recoilless rifle? Mortar? Grenades? These are all ‘arms’, or armaments, in the usual definition of the word. Given that there are man-portable tac-nuke weapons, do you really think the founders were thinking “Hm, to prevent the English from re-establishing control, we should permanently allow any and all weaponry, including stuff that could wipe out a city with a single shot.”? Yeah, because a nut with an automatic can kill dozens; a nut with a Davy Crockett (or later versions, W-54), could take out tens or hundreds of thousands. Yep, I strongly believe no-one has a ‘natural right’ to tote around something like this, in the name of self-defense.

  16. Leslie: “The way the amendment is written – contrary to what SCOTUS held – requires an individual to be part of a militia. ”

    The Court disagrees with you. Further, I wold point you at 10 USC 311, which defines the unorganized militia as basically every male citizen or person who has declared his intention to become a citizen between the ages of 18 and 45. And the term in the Amendment is not “well ordered militia”, but “well regulated militia”, which at the time meant “well equipped and well trained”.

    As for “arms”…if you think that nukes should be excluded because they did not exist at the time of the Founding, then you should also argue that broadcast TV networks and political blog sites should not be protected because they weren’t around then either. I’ll also note that privately-owned warships were neither unheard of nor banned in that era.

  17. If we assume these documents reflect “natural rights” akin to natural law, that leaves open the question of how to apply this interpretation. Natural laws are universal, and thus subject to discovery, and independent researchers should end up largely agreeing about them.

    If a body of evidence yields the natural rights referenced in the Constitution and Bill of Rights, we could just refer back to this evidence to reaffirm, adjust or extend these documents. If instead, we’re using “natural rights” purely as a philosophical framework, it doesn’t seem to change anything, since the existing arguments would simply be translated into “does this amendment accurately reflect a natural right” and “is this natural right properly acknowledged”.

    I admit I’d find the adjustment in the rhetoric pleasing.

  18. @Leslie Richardson “1) Arms … The way the amendment is written – contrary to what SCOTUS held – requires an individual to be part of a militia.”

    Check, yep I am part of one, so where are my heavy weapons?

    And further “Given that there are man-portable tac-nuke weapons, do you really think the founders were thinking…” I am not really worried about individuals getting a hold of nuclear weapons. That is still a sovereign country scale project and a convenient straw man. Many of the armaments in the revolution were privately owned including field pieces such as cannon and mortar. The revolution also employed privateers using heavily armed personally owned ships of war. Yep, the founders were a bunch of stupid hicks that had no sense of the march of history and the inventiveness of man. I think they wrote exactly what they meant, “shall not be infringed”.

  19. There are two kinds of idiots: those that believe that because something is new, it is better; and those that believe because something has always been done that way, that it is better.

    Jay , I know what the court decision was – I regularly read them in their entirety as a hobby.
    Your argument is actually a near perfect example of a straw man. Yes, I believe personal nukes should be banned. So should personnel warships. TV Networks have no inalienable protections, per se … but the individuals who work for them should be entitled to all the rights that the Constitution/law does.

    This may be a bit hard to grasp, but every right requires a responsibility. And, just as you want to hold certain ‘rights’ as natural and inalienable, then there are certain responsibilities that everyone needs to perform. The US – both the legal system, and a lot of citizens thereof – appear to have forgotten that detail.

    The UK is currently discussing reducing its nuclear arsenal. All things considered, a pretty sane decision. Nukes are the end product of a paranoid mindset – every decision can be argued as being ‘rational’, and somehow you end up with MAD … and countries like Israel, Pakistan, India, North Korea, with nuclear weapons, and a de facto state of war.

    Look at the number of ‘terrorist attacks’ on US soil. Do you really think if McVeigh had access to nuclear weapons, he wouldn’t have made use of them? Does your belief that the wording of something written centuries ago, before any of these technologies existed, by people who had no concept of the destructive power a single weapon, mean that people like McVeigh, Ramzi Yousef, etc, should legitimately and legally have access to ‘arms’ like that, until they proved themselves not responsible enough to bear them?

    When people start talking in absolutes, they lose sight of reality. How would you feel about energy weapons – say, rifle sized – that can kill an individual up to 10 miles? And what that would do to American society (let alone the world), where line-of-sight means anyone can take someone out?

    If the right to bear arms is absolute, how do you justify taking it away from people? Criminals, mentally ill, Trump supporters …

    It’s a complex topic, where sticking to an absolute position is the surest way to disaster.

  20. If the right to bear arms is absolute, how do you justify taking it away from people? Criminals,

    As discussed above, punishment for crime routinely includes deprivation of fundamental rights including property, liberty, and even life.

    mentally ill,

    Protection of the natural rights of insane people while maintaining the safety of others is a difficult balance, guns or no. The 14th Amendment has been taken too far in directing States where to draw this balance—but at least at the Federal level there should be no infringement.

    Trump supporters …

    Wait. You want people stripped of certain rights for having crackpot political opinions? It is alas illegal, however logically consistent it would be, to prevent those who think as you do from voting.

  21. Really? Does the line about not being allowed to yell ‘Fire!’ in a crowded theater imply that there are valid moral and legal reasons to put limitations on these so-called ‘natural rights’?

    This is not a thing.

    For more information please read popehat.Basically A) it was rhetorical device not settled precedent and b) Holmes has been repudiated since then as being a terrible precedent.

  22. “The way the amendment is written – contrary to what SCOTUS held – requires an individual to be part of a militia.”

    If we accept this wacky interpretation, then every individual should be forced into militia service. Saner heads have been obviously been reading and interpreting the amendment differently than you have. You’ve got the “[2nd] amendment as written” a bit confused. The founders knew that without private ownership of firearms, a militia was impossible. Now you can make an argument that things have changed since then, but that doesn’t change the original intent.

    Your nonsense about idiocy aside, the point about privately-owned heavy arms and warships was not to pine for days long past or whatever you seem to have misunderstood; it was to illustrate that the founders did not intend for the government to have a monopoly on force.
    They certainly made no effort to curtail that ownership after the state was established. Not for a very long time at least.

    Speaking of strawmen, if the issue of the day were whether or not to ban private ownership of man-portable nuclear weapons, then your point about them might be relevant. There are plenty of constitutionally defensible grounds for restricting ownership of such devices (just like the well-traveled constitutional grounds for limiting speech – exercise of a right that would result in the infringement of others’ rights). Since the current issue is about personal firearms and the routine efforts to ban them or severely restrict their ownership, then it’s probably best to keep it in the realm of relevance.

    “This may be a bit hard to grasp, but every right requires a responsibility.”

    The reason that’s hard to grasp is because it’s simply not true. Amendments 3-8 outline some very specific rights that require absolutely no responsibility on the individual’s part. In fact, the only responsibility a citizen of the US has is to follow the law.

  23. Nukes are the end product of a paranoid mindset – every decision can be argued as being ‘rational’, and somehow you end up with MAD … and countries like Israel, Pakistan, India, North Korea, with nuclear weapons, and a de facto state of war.

    Nuclear weapons are only paranoid to people that don’t remember what war looked like before nuclear weapons. Even without thinking about the strategic implications of chemical and biological weapons, war has always been nasty and brutish, and the industrial wars of the twentieth century were nasty and brutish on an impossible scale, made possible and only winnable by the massive concentration of power at the hands of the bureaucracy of a nation-state. That war can no longer be won by having a bigger military-industrial complex outproducing your neighbors when it comes to guns, bombs, bullets and troops is a good thing.

    When people start talking in absolutes, they lose sight of reality. How would you feel about energy weapons – say, rifle sized – that can kill an individual up to 10 miles? And what that would do to American society (let alone the world), where line-of-sight means anyone can take someone out?

    If I have the will to kill my neighbor, I can walk over with a knife and they’ll be just as dead as if I had a rifle or your hypothetical energy weapon. If they’re paranoid, the knife might not work but a car and some gas is easy to come by. The ability to kill people isn’t new or hard to acquire.

    We trust people to own chemical factories, experiment in biological research laboratories, and fly massive explosive-fuel-filled aircraft. If you have the skill, know how, drive, and money to build a nuclear bomb you can easily kill vast amounts of people right now.

  24. Eric Raymond> In modern terms, we can think of “natural rights” as the political and social rules which are required to sustain “life, liberty, and the pursuit of happiness”, and derive them not from religion but from game-theoretic analysis of the behavior of competing agents in a political system.

    Ok, I’m not sure I agree with this way of framing it, but I’m curious to explore it. Suppose, as a thought experiment, that Congress and the States abolished the Second Amendment and couched their rationale in the language of game theory: “Whereas technical progress, both in gun-smithing and in communications technology, has substantially altered the dynamics between competing agents in our political system; and whereas the nation-wide Nash equilibrium consistent with life, liberty, and the pursuit of happiness now requires broader First-Amendment rights and far narrower arms-bearing rights, be it enacted that the Second Amendment be repealed.”

    Further suppose that the NRA challenges the new amendment in the federal courts, claiming that Congress and the States are wrong about the underlying game theory. A correct analysis of the game theory, they claim, calls for reinstating the Second Amendment in its original interpretation.

    On what legal and game-theoretical grounds would you have a court decide which side’s analysis is right? And how much confidence do you have that judges would make the correct call, given that they have no particular expertise in game theory? Until five Posners and four Easterbrooks sit on the Supreme Court, I would be pretty pessimistic myself.

  25. I think, Thomas Blankenhorn, that you’re misunderstanding the point. An amendment to repeal the Second Amendment—even one to repeal al the checks & balances and install a dictator—would be “legal” and the Supreme court, acting as a court, could do nothing about it.

    But such an amendment would effectively void the Constitution: from a moral point of view, anyone who’d ever taken an oath to protect & defend the Constitution would no longer be obligated to obey the resulting government; in fact they might well be obligated to overthrow it. (One hopes that the USSC, acting as Americans, would call for such a revolution; I don’t expect unanimity on that call, though.)

    An amendment to repeal the protections of the Bill of Rights, and especially one which explicitly granted Congress the power to limit those rights, would be “legal”—but not “legitimate”.

  26. I can easily see four of the current Court signing off on an amendment to repeal the Bill of Rights. They fundamentally see no limits on the legitimate power of government.

  27. Anyone else notice how the people who keep bringing up the “militia” portion of the 2nd Amendment don’t seem to understand what that word actually refers to? Hint: The National Guard ain’t it.

  28. The argument regarding the Second Amendment suffers from a misunderstanding. I as an sentient individual have the right to defend my life and my property and thus necessarily have the right to the tools necessary for that defense. These rights exist as fundamental properties of my nature. The law cannot strip me of those rights any more than a law could strip an electron of mass or charge.

    The militia clause expands that right to self defense to defense of the community and nation. It imposes further restrictions on the government, not the individual. Because my potential for militia service (and anyone who thinks the National Guard is the militia as envisioned by the Founders needs to study more English history, especially regarding the interactions with the Vikings and Scots) the government must include military arms in my options – the government cannot ban guns under the argument that swords are sufficient for personal defense.

  29. My problem with the way the second ammendment seems to be interpreted by the NRA et al is that it empowers any nutcase who thinks they have a grievence to turn vigilante (think of the Bundies). And allowing people to persue this line of action promotes neither the liberty nor the security the ammendment in question was designed to protect.

    Bear with me and imagine this hypothetical: After a period of years a group of radical femminists decide the best way to fight oppression in society is to back up rhetoric with force. The next man that looks at a radical femminist funny on a bus will find a few newly minted holes in his center of mass.

    Is it fair that the individual in this scenario ends up in the ER (or the morgue) for an offence that would have previously occasioned a slap in the face?

    Why do “militias” essentially get a free pass for threatening to instigate the same behaviour?

    I can’t think of too many legitimate reasons for people who aren’t law enforcement or military to take it upon themselves to escalate force. Most other people probably couldn’t handle themselves in a firefight anyway (even range attending gun owners).

    As other commenters have pointed out in previous posts on this issue: it is one thing to know how to use a gun. It is another to do it under pressure.

  30. @ssorbom, your hypothetical radfems will be met by retaliatory force, as well as convictions for criminal conspiracy for everyone involved in the planning. The danger is the same whether they try using guns or homemade bombs or knives or anything not practically restrictable—and does not justify prior restraint against law-abiding citizenry. And the Bundies are relying on the reluctance of the Feds to storm their occupation by force; and given the disparity of force available to the government (bombs, mortars) it hardly matters what they themselves are armed with.

  31. To be more explicit about my last point: The Feds are far more concerned about casualties the Bundies would take than any the government forces would.

  32. Bear with me and imagine this hypothetical: After a period of years a group of radical femminists decide the best way to fight oppression in society is to back up rhetoric with force. The next man that looks at a radical femminist funny on a bus will find a few newly minted holes in his center of mass.

    Is it fair that the individual in this scenario ends up in the ER (or the morgue) for an offence that would have previously occasioned a slap in the face?

    I don’t know where to start. There’s a massive line between carrying a weapon and threatening or actually using it to shoot someone. You have the right to freedom of speech, but committing theft by fraud using speech is still a crime, and it’s overkill to take away people’s right to freedom of speech because some people commit fraud using it.

    I can’t think of too many legitimate reasons for people who aren’t law enforcement or military to take it upon themselves to escalate force. Most other people probably couldn’t handle themselves in a firefight anyway (even range attending gun owners).

    You don’t see why people need effective self-defense? The whole reason guns are effective self defense is that most people have a much better chance in a firefight than in a knife fight or unarmed combat. And saying people don’t have the right to self defense at all is a non-starter. The police can’t be everywhere. If someone’s busting down your door, the only person who is guaranteed to be there and able to protect you is you.

  33. “Speaking of strawmen, if the issue of the day were whether or not to ban private ownership of man-portable nuclear weapons, then your point about them might be relevant.”

    A well-written law is absolute. The second there is something ‘arbitrary’, then the law lacks the same moral defensibility.
    e.g. Mandating the minimum age for marriage (18? 16 with parental consent? 15? (e.g. Kansas, which bumped it up from 14 a decade back))

    In part, a lot of the debate – and rhetoric – regarding laws to restrict ownership deal with ‘Fully Automatic’ weapons. I’m reasonable – when the Amendment has the word ‘militia’ in there, then that implies Military-Grade weapons are perfectly legit. And any attempt at restricting them is, by definition, anti-Constitutional.

    Of course, law is all about weaselling. Much like how ‘militia’ wasn’t defined, neither was ‘arms’. Extending the Amendment to cover any current firearm seems reasonable; BUT, and this is a huge point, they didn’t have the capability for serious mass destruction back then.

    The other issue is that there are no natural rights. You have exactly the rights that the people around you grant. Anything else is a fantasy. Screaming “These are natural rights, you can’t take them away from me!” doesn’t change the reality. If something were inalienable, then it couldn’t be removed. Yet a criminal conviction, in most of the US, precludes ownership of a firearm. So … the right is not ‘natural’, it is something granted – and removed – by others in society.
    The US is mildly insane on some issues. I don’t think the second amendment is one of them. Until it is repealed, any law restricting firearms should be struck down.
    That said, nothing exists in a vacuum. How does an intelligent person reconcile the ‘rights’ granted by this amendment, the revocation of such rights due to criminal conviction, and various US cities where the po-po routinely arrest every black male for ‘possession’, and get a no-time sentence for a guilty plea? You’ve got one group (the gun advocates) claiming supremacy of this one piece of law. And another bunch (KKK, racist cops, politicians) pulling every trick in the book to effectively deny certain others this right. One only has to look at the difference in treatment between the Occupy movements and the current Oregon standoff.

    As a contrary example, let’s take a look at “The Right to Healthcare.” Oh, wait, you schmucks south of the border don’t have that, just the right to “Life, Liberty, and the pursuit of happiness.” What’s the result? Compared to us Canucks, the average US citizen pays double the cost for healthcare (most expensive in the world), and yet receives a level of care somewhere around 20th overall. We have a ‘right’ to this because the people up here have decided it is so. In the US, no such decision has been made. The actual differences are quite stark.
    (As an aside, I find HRCs slams at Bernie over this ludicrous. “Raising taxes!” … yep, if the US switched to the Canadian system, individual taxes would go up … by about half of what they are currently paying in private premiums; so the net amount paid out would go down. But throw the words ‘Increase taxes’, and one gets a knee-jerk response from a lot of people. With extra emphasis on the ‘jerk’ part. Apparently looking at the larger picture – paying less overall – doesn’t offset the mental blinders that spring up when ‘taxes’ is used to tar someone).

    Many years back, I was helping a co-worker fill in a form as part of the Green Card process. I joked that for the box labelled ‘Clan or Tribal affiliation” he should put in ‘Capitalist’. With virtually no skills outside of software, the rest of the form was pretty easy to fill in. No warning flags would be set. Me? I could legitimately check the ‘No’ box for ‘training with nuclear weapons’ Everything else – firearms, explosives, biological weapons – would be getting a ‘Yes’, and all of that was from before my stint in the military.
    I am very glad – very, very, very glad – that most terrorists lack the brains and discipline to know how to make seriously dangerous items. If one has the skills to do so, then – generally – jobs are available that means a person isn’t so !@#$ed up they feel the need to kill others.
    One huge downside to making ‘arms’, of all sorts, available, is that nuts like these no longer need the skills to make the stuff themselves.

  34. >If someone’s busting down your door, the only person who is guaranteed to be there and able to protect you is you.

    But that’s exactly what I don’t buy in the “protecting yourself” argument. Can you (certainly not me) draw, aim and fire before you get gunned down by a psychopath? If you are unlucky to encounter somebody like that, you are most likely dead either way, gun or no gun, even if you know the mechanics flawlessly. I wouldn’t presume to guess at your experience, but I have never fired anything more than an air rifle. I don’t have anything to gain by trying to handle those sorts of situations myself, whether the cops show up or not.

  35. @ssorbom, in no particular order:
    • I don’t care how well you’ll do defending yourself; you have the right to try.
    • I don’t care whether you have the inclination to defend yourself; I have the right to try.
    • People do, in fact, successfully defend themselves.
    • “… shall not be infringed.”

  36. Let me amend that, I wouldn’t have anything to gain by using a gun, regardless of how I chose to handle the situation.

  37. ssorbom, arguments from incredulity are not terribly convincing. There are literally millions of examples every year in the US of people doing exactly what you claim is impossible and surviving.

  38. I am not claiming impossibility. FBI reports suggest that effective civilian gun use in cases where an active shooter is present hover at 3% of the total. Those odds go up significantly when the perp is unarmed though.
    “In 5 incidents (3.1%), the shooting ended after armed individuals who were not law
    enforcement personnel exchanged gunfire with the shooters. In these incidents, 3 shooters
    were killed, 1 was wounded, and 1 committed suicide.”
    Page 11, here:
    https://www.fbi.gov/news/stories/2014/september/fbi-releases-study-on-active-shooter-incidents/pdfs/a-study-of-active-shooter-incidents-in-the-u.s.-between-2000-and-2013

  39. J. C. Solomon> An amendment to repeal the protections of the Bill of Rights, and especially one which explicitly granted Congress the power to limit those rights, would be “legal”—but not “legitimate”.

    Sounds fair. Eric’s position makes sense to me if it’s moral rather than legal. If he’s saying that curtailing constitutional rights by amendment would make the Constitution unjust law, that’s consistent with the Lockean philosophy that inspired the founders. Eric would probably enjoy the founders’ moral support in offering civil disobedience — perhaps even armed resistance — whatever the legal relevance of their support.

  40. > If he’s saying that curtailing constitutional rights by amendment would make the Constitution unjust law

    That is true, but subsidiary to the point I was making, which is that under U.S. law revoking 2A would not abolish RKBA because the RKBA is not granted by 2A. This is a legal point.

  41. ssorbom, you might want to read your sources more throughly

    The findings also reflect the damage that can occur in a matter of minutes. In 63 incidents where the duration of the incident could be ascertained, 44 (70%) of 63 incidents ended in 5 minutes or less, with 23 ending in 2 minutes or less. Even when law enforcement was present or able to respond within minutes, civilians often had to make life and death decisions, and, therefore, should be engaged in training and discussions on decisions they may face. As expected, therefore, many incidents ended before police arrived. Of the 160 incidents, at least 107 (66.9%) ended before police arrived and could engage the shooter, either because a citizen intervened, the shooter fled, or the shooter committed suicide or was killed by someone at the scene.

    Anything that improves the odds of a citizen providing resistance is a good thing. The low incidence of armed citizens stopping an active shooter tells us nothing because we do not know how many shooters deliberately targeted gun-free zones so as to reduce the odds that they would be stopped. Also, the FBI definition of effectiveness is rather limited. Even if I don’t stop the shooter, if I can delay him from executing people long enough to allow some of them to escape, I’ve been effective.

    Furthermore, the right to self defense isn’t limited to active shooter situations. I can defend myself and my property from garden variety murderers, rapists, and muggers. And I have the right to the tools necessary to achieve parity with the bad guys.

  42. Yes, I read the part on timing. Statistically, it seems like you have better odds trying to hide.

    In regards to your second point, in california law, you are not allowed to escalate force in cases where you are not in fear of your life (ie for property). I do not know about other states, but if a court finds that you could have gotten away, but instead chose to use a firearm, you are held responsible for loss of life. I don’t think this would apply to rape, but it might apply to mugging.

  43. Your understanding of statistics is deeply flawed. In order to determine the effectiveness of guns in an active shooting situation we would need to restrict our analysis to those shootings that take place in areas where civilians are permitted to be armed. The FBI does not break the data down like that, and the dataset is likely to be far too small for any meaningful analysis. You are also making an unwarranted assumption about people’s goals during an active shooter situation.

    Duty-to-retreat laws are a sign that the legislature is dominated by profoundly ignorant and evil people. In other words, Democrats.

  44. ssorborn
    What anyone is capable of doing with a firearm is not germane to the arguments presented. The host of this blog, for one, is more than capable of doing all those things. If you have chosen to reject the simply ability of being able to defend yourself then that is your (and possibly your family’s) choice to live with. The ability to protect oneself is in fact the most basic right. Without it, all of your other rights are automatically forfeit to whatever thug, robber, rapist, or government agent who comes your way. Freedom of speech and religion are moot when you are dead, enslaved, or imprisoned.
    And this indeed is the purpose of the “guarantee” that the Second amendment provides; it provides that all men, being created equal, have equal access to the tools that allow the basic human right of self defense, and therefore self-destiny, is available and meaningful. Otherwise the world is run by the muscled thug with the most muscled thugs to keep the sheep in line.
    If you cannot see that, or choose to remain ignorant of it, then you are surely no student of history.

  45. Aquinas’ concept of natural law was broader than natural rights, it also included the duty to use everything to its natural purpose e.g. eating should nourish the body, not indulge in luxurious feasts. Sex ought to be procreative and so on. Natural rights were interpreted as things that people need in order to fulfill the duties of natural law, or live according to nature. Specifically, property rights were understood as something meant for procreation, for sustaining families, thus, theoreticallly, childless people could in theory have their property rights revoked. However, Aquinas was less than clear in this and had the tendency to conflate natural law and natural rights. Medieval English scholars like Henry de Bracton ( 1210 – c. 1268) and Christopher St. Germain studied natural law in Aquinas’ tradition, but focused far more on natural rights than on the duties of natural law. So already in the 13th century there is this tendency, there is this stronger focus on rights than duties. Specifically, de Bracton wrote: “In determining the nature of law, there must be three conditions: the fostering of religion, in as much as it is proportionate to the Divine law; that it is helpful to discipline, in as much as it is proportionate to the natural law; and that is further the common weal, in as much as it is proportionate to the utility of mankind.” Cristopher St. Germain (1460-1540) focused even stronger on natural law understood as a law of reason, the law of rational creatures. Essentially: stuff that makes sense.

    So there is this really old and constant divergence in the English tradition from a stricter Catholic stance of natural law interpreted as the duty to do everything according to its natural telos and towards an interpretation of rights based on what is rational or what is functional in the utilitarian sense, for the common good. It didn’t begin with the Enlightenment, it began already in the 13th century. Or, one could as well say that the Enlightenment was rooted in Medieval English jurisprudence! All this was in the Aquinas’ tradition, because Aquinas’ himself was kind of less than clear in this, he already had a certain tendency to conflate natural law and natural rights. Thus, to put less emphasis on the aspect of natural law that there is a duty to do everything according to its natural purpose, and more emphasis on rights people need to enjoy in order to prosper.

    Worth noting that Jefferson studied both de Bracton and St. Germain. http://lonang.com/library/reference/stgermain-doctor-and-student/

    My point is simply that there is this tradition of a broader, stricter interpretation of natural law, where it would be okay for a government to tax fast food on the basis that the natural purpose of food is nourishment, not getting fat, or laws against sexual liberation, and the narrower interpretation of natural rights, such as to life, limb and property, which generally opposes this kind of meddling and which was developed in Medieval English jurisprudence in a surprisingly pre-Enlightenment sounding fashion, and was extensively studied by Jefferson, so the influence is rather clear. Both are ultimately different interpretations of Aquinas. And if I may be allowed a completely speculative hunch, this is perhaps why the English Reformation was so popular and Catholicism so hated, perhaps they didn’t like the Catholic habit of legislating morals, based on the broader, stricter interpretation of natural law.

  46. It is a list of things the government is prohibited from doing.

    Actually, for the most part, it’s a list of things the government is permitted to do, along with several specific prohibitions on federal power.

  47. Pingback: DYSPEPSIA GENERATION » Blog Archive » What Amending the Constitution Cannot Do

  48. The problem is with those who don’t see the RKBA as an actual right in the first place, but merely as a criminal act wrongly recognized as a right.

    A couple of decades ago, Reason magazine interviewed Nadine Strossen, the then-president of the ACLU. One of the questions, of course, was “So why doesn’t the ACLU challenge gun-control laws on Second Amendment grounds?” And her answer included the statement:

    Putting all that aside, I don’t want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.

    From the anti-gun point of view, repealing the 2nd Amendment won’t eliminate any right to gun ownership because that right never really existed in the first place. It will only eliminate the legal fiction that their was such a right.

  49. Lovely theory, Eric, but completely useless in practice. Governments can, and happily will, restrict those rights, whether they have moral authority to do so or not, and whether or not the long-dead framers of the Constitution believe it’s okay.

  50. “As a contrary example, let’s take a look at “The Right to Healthcare.” Oh, wait, you schmucks south of the border don’t have that, just the right to “Life, Liberty, and the pursuit of happiness.” What’s the result? Compared to us Canucks, the average US citizen pays double the cost for healthcare (most expensive in the world), and yet receives a level of care somewhere around 20th overall. We have a ‘right’ to this because the people up here have decided it is so. In the US, no such decision has been made. The actual differences are quite stark.”

    The problem with this sort of argument is that if there aren’t enough doctors, or medicine, or MRI machines, or what-have-you, somebody’s “right to healthcare” is meaningless because they don’t get the healthcare they have a “right” to. (We’ll ignore that the statistics that find the US as 20th in healthcare are rigged in terms of finding socialized systems higher on the list, in terms of actual health results, the US often wins.) Similarly, if there is not enough food, a “right to food” is meaningless, because someone is not going to get enough food. And when there isn’t enough of a resource to go around, somehow the people in charge, the government and the powerful, are always first in line even when everyone has a “right” to the scarce resource. Cubans may have a “right to healthcare”, but somehow I expect Castro and his cronies get much better healthcare than the common slaves.

    On the other hand, there’s not a fixed amount of speech that I can use up that prevents you from speaking; it costs nobody anything for you or I to speak. Likewise, the rights to freedom of the press and of self-defense don’t say I’m owed a printing press or a weapon at somebody else’s expense, but that if I have one, I’m free to use it.

  51. “But that’s exactly what I don’t buy in the “protecting yourself” argument. Can you (certainly not me) draw, aim and fire before you get gunned down by a psychopath? If you are unlucky to encounter somebody like that, you are most likely dead either way, gun or no gun, even if you know the mechanics flawlessly. I wouldn’t presume to guess at your experience, but I have never fired anything more than an air rifle. I don’t have anything to gain by trying to handle those sorts of situations myself, whether the cops show up or not.”

    If someone is seriously trying and determined to kill me, whether by gun, car, or knife, I’m most likely dead; he could walk up behind me in line at a store and stab me before I can react, even if I am armed. But most real world cases of violence don’t work that way. The guy breaking into my house likely doesn’t know where I am, precisely, where as I can hear where he is. He’s chosen this risky action because he’s confident he can win a physical confrontation. 90 pound weaklings don’t try to rob from occupied dwellings. I’m not in good physical shape, but then again, I don’t break into people’s homes. If it comes down to a physical fight, I’m dead, period. On the other hand, there’s a reason that cops, even fit and trained ones, even armed and with body armor, are paranoid about people pulling a gun on them.

    As for what you have to gain, you may not care about your life, but I certainly care about mine, and that of my family and neighbors. And, logically, I care about the herd immunity granted because there’s a non-zero chance that robbing an occupied dwelling might cause you to end up shot.

  52. Theoretically, no laws can take away natural rights. But they do all the time. I’m unable by law to carry a weapon in my state, regardless of what the 2nd Amendment says, let alone the natural right to self defense. I also can’t own a semi-auto rifle with a bayonet lug, or a handgun over 50oz. And other stupid things. And it’s going to get worse once Christie leaves office.

    Maybe this is an un-sustainable thing over the course of history, but it can last lifetimes. Look at North Korea — that’s not going to change without help from outside. The Soviet Union was a horrific murderous regime that lasted for the better part of a century.

    If anything, the personal ownership of not just arms, but the best arms current technology has to offer, is a prerequisite to saying that a regime can or can’t do something.

  53. Leslie Richardson said,

    As a contrary example, let’s take a look at “The Right to Healthcare.” Oh, wait, you schmucks south of the border don’t have that, just the right to “Life, Liberty, and the pursuit of happiness.”

    Who doesn’t have a right to health care here in the U.S.A.? Other than abortion (and IIRC every State allows abortion in cases of medical need) is there any medical procedure that is illegal or restricted in any State?

    On second thought, there’s medical marijuana. But that’s the only one I can think of.

  54. I’d like to show him all the Canadians who come to the US for cancer treatment…

  55. Civilis,

    In terms of “actual health results” (e.g., average longevity, overall and infant mortality rates), Canadians and Americans tracked each other closely. Until the 1970s when Canada implemented single payer, at which point the Canadians started outdoing the Americans. We’re close enough ethnically and culturally that it’s practically a controlled experiment. If that doesn’t convince you that government provided health care works, maybe the fact that every single developed country except the USA has implemented it will?

  56. “If that doesn’t convince you that government provided health care works”

    Yeah, and Mussolini did indeed make the trains run on time.

  57. “In terms of “actual health results” (e.g., average longevity, overall and infant mortality rates), Canadians and Americans tracked each other closely. Until the 1970s when Canada implemented single payer, at which point the Canadians started outdoing the Americans. We’re close enough ethnically and culturally that it’s practically a controlled experiment. If that doesn’t convince you that government provided health care works, maybe the fact that every single developed country except the USA has implemented it will?”

    Yes, but those “actual health results” are almost never properly controlled for the differences between Canadians and Americans, specifically things like obesity and the drug wars. (I’ve seen studies go both ways, I’ve included one below, and I’m sure you can cite the studies that go your way.) But the fact that American government provided healthcare (such as Medicare and VA) is both more expensive and poorer quality than private American health care also says that in many respects, whatever is wrong with American health care isn’t in the nature of who is providing the funding.

    http://www.forbes.com/sites/joelkotkin/2016/01/14/americas-next-boom-towns/#2715e4857a0b223ddbf83b35

  58. This has been brought up a few times in this thread, but hasn’t really been addressed, so I’ll try to ask it more plainly in hopes of getting a response.

    What empirical test can we apply to determine if a hypothesised right does, in fact, exist, in the absence of governmental recognition for said right?

  59. > In order to determine the effectiveness of guns in an active shooting situation we would need to restrict our analysis to those shootings that take place in areas where civilians are permitted to be armed.

    Yes. I am familiar with statistical treatments. But the FBI was showing raw data, not regression analyses. The fact that this data isn’t statistically treated doesn’t invalidate the raw numbers. Whether or not an area was a “gun free zone” should be a matter of public record. If you are arguing that this makes a difference, do a treatment on the FBIs numbers and show both data sets.

  60. @ d5xtgr

    The term “natural right” is a concept. It implies that a phenomena would exist even in the absence of our species (somewhat like a fundamental law of physics). This hypothesized phenomena is thought to have universal properties, such as maximizing utility in a network of living things. In practice, it represents a high value social norm (code of behavior) and typically is reinforced via group indoctrination, persuasion, coercion, or force. In this latter sense, it relies upon memetics to propagate and sustain itself.

    Eric, like many others, is attempting to use his powers of persuasion to move the body politic away from increasing gun control in the US. Gun controls tend to foster sheeple behavior in a population, encourage government dependence, and discourage self reliance. It is in this fetid ground that governments become cancerous and tyrants are spawned.

  61. @ Cambias: “The Constitution doesn’t matter. Natural rights don’t matter. No construct of law matters in the physical world. All that matters is what rights the people can people preserve for themselves, by political power or persuasion or naked force. Those are the only rights you have.”

    I would say rather that “Those are the only rights you _can exercise_.”

  62. @Leslie Richardson

    “The other issue is that there are no natural rights. You have exactly the rights that the people around you grant. Anything else is a fantasy.

    If there are no natural rights, then there is no reason to object when a state does not grant a right to its’ citizens. (After all, rights not granted do not exist and anyone claiming otherwise is living “a fantasy”.) Therefore, the US’ lack of a right to healthcare is neither objectionable nor notable.

    Without natural rights, there is no basis to require universal and equal rights among all citizens. Anything which can be legally observed and measured is a viable and valid means of segmenting the population and granting/denying different rights to each segment. A law which (to use some historical examples) only grants the right to vote to males, or which required the forced sterilization of “imbeciles” with low IQ, must again go without objection. (Once again, by your argument, it is mere fantasy to assume a priori these citizens must have some “right” which is not granted by their society.)

    Finally, as if it matters at all, I also note you qualified the origin of rights as “…the people around you…” and not the government. This means that extralegal community actions, such as the lynching of African Americans in the southern US, also are not problematic—merely the community expressly [pun intended] withdrawing the right to life from someone who had wrongfully assumed it had been granted to them.

  63. >If there are no natural rights, then there is no reason to object when a state does not grant a right to its’ citizens. (After all, rights not granted do not exist and anyone claiming otherwise is living “a fantasy”.)

    This is correct.

    A lot of people in this discussion are confusing themselves by conflating different kinds of assertion about whether a natural right “exists” or not. One sense of “exists is “is necessarily any part of any political system intended to avoid squalor, misery, and megadeaths”. Another is “is enforceable in principle”, yet another is “is enforced in practice by my polity”, yet another is “cannot be denied by a government”. All these are often ontologically confused with “existence” as we might apply it to chairs or private emotions or shared thoughts.

    The way out of the confusion is to recognize that these are all separate predicates.

    The assertion of English Republican theory, the Declaration of Independence, and the Bill of Rights is very specific: there are rights which are a part of “nature” in that denying them leads to tyranny, misery, and death by the natural laws of the evolution of societies. In period they were unable to phrase it this succinctly because they did not have the concepts of evolution under selection and game theory.

    This is not to say natural rights cannot be denied – indeed, the point of the analysis is the horror of the consequences when you do that. The cynic who points out that such denial is routine is missing the point; the whole aim of this body of theory is to give people the language in which to demand their rights and (when necessary) motivate them to fight to uphold them.

  64. As someone who grew up in Canada and now lives in the US, healthcare is far more complex.
    In Canada, you get all of the healthcare you can wait for. In the US, as a (largely) consumer service, delivery and waiting times actually matter. The result is that it is much faster and easier to be able to get to a doctor or specialist in the US.

    Also, the anti-legal-abortion people have been pushing extensive laws which define very broadly when a fetus becomes “alive”. I think the standard is drawing a single breath. This means that pre-term deliveries (21 weeks) get a “full workup” on delivery, even though the chance of survival is basically 0. Oh, and that’s counted against the infant mortality statistics because it was legally “alive”. So a case like this counts against both maternal statistics (for pre-term delivery) and infant mortality (legally alive), even though the time from pregnancy detection to “death” was maybe 2 hours.

  65. There’s a difference between wrong, illegal, and unconstitutional. Obfuscating this difference is the goal of a lot of demagogues.

  66. esr wrote: Amendment of the Constitution cannot abolish a right that was not granted by the Constitution in the first place.

    But the Constitution could be amended to remove the protection of a right. Such an amendment would not, itself, be unconstitutional because it does not (directly) violate any rights protected by the Constitution. Stated differently, an amendment repealing the 2nd Amendment would not take away your right to bear arms, it would simply take away the constitutional protection of that right. As a “natural right”, you would still have the right to bear arms, it just wouldn’t be protected by the Constitution anymore. And that’s when the government could start passing laws that do take away your right to bear arms, because now such laws would no longer be unconstitutional because that particular right is no longer protected by the Constitution.

    When we have a President who has routinely ignored the Constitution, and a Supreme Court that has routinely demonstrated its willingness to allow it, I wouldn’t count on any protections offered by that piece of paper anyway.

  67. @esr:

    A lot of people in this discussion are confusing themselves by conflating different kinds of assertion about whether a natural right “exists” or not.

    I tend to avoid the language of “natural rights” for exactly this reason (I have strong suspicions that the confusion you highlight is intentional memetic warfare) and instead borrow terms from economics—specifically, that of positive vs. normative analysis: whether one is looking at ‘what is’ or ‘what ought to be’.

    As an (deliberately uncommon and unrelated) example: arguing that “The first amendment is not just a hodge-podge of rights: together, freedom of speech, press, assembly, and petition ensured that American citizens would control their government ” is an argument of positive analysis (that these rights are related). It makes no claims toward how they should direct government, merely that they together enhance/permit such bottom-up direction.

    Rephrasing this as “Seeking to ensure Americans would not be subject to another tyrannical government, the founding fathers drafted the First Amendment to ensure the rights of speech, press, assembly and petition” may appear to have the same content but is now making a normative argument: it carries the strong implication that government should not be tyrannical, whether that of a dictator or merely the “tyranny of the majority”.

    …the whole aim of this body of theory is to give people the language in which to demand their rights and (when necessary) motivate them to fight to uphold them.

    I would suggest that the economic distinction between normative and positive arguments is a similar language tool. (It is perhaps even a whisker stronger than that of the “natural rights” theory, because—as with my earlier post to Leslie—this analysis does not even need to be addressed openly in order to be effective.)

  68. “A well-written law is absolute. The second there is something ‘arbitrary’, then the law lacks the same moral defensibility.”

    None of this is true. By this ‘understanding’, the vast majority of laws are morally indefensible. This might get you points with the hardcore libertarian crowd, but something tells me that that’s not your intent.

    “In part, a lot of the debate – and rhetoric – regarding laws to restrict ownership deal with ‘Fully Automatic’ weapons. I’m reasonable – when the Amendment has the word ‘militia’ in there, then that implies Military-Grade weapons are perfectly legit. And any attempt at restricting them is, by definition, anti-Constitutional.”

    Since you’ve been soundly taken to task for the rest of your screed, I’ll just address this part.

    As I already pointed out, restrictions on speech in the US are not automatically unconstitutional. I cannot exercise speech (or any right) in such a way that deprives another of their fundamental rights (i.e. direct incitement to violence). Same with private ownership of “arms”. Just because I have RKBA doesn’t grant me the right to use it however I see fit. Nor does it mean that the government can’t place strict controls upon ownership of different classes of arms as it already does. Nuclear weapons would be treated no differently.

    Of course, private ownership of nuclear weapons isn’t even in the same solar system as firearms in the public debate, but that doesn’t stop some fools from bringing it up anyway.

  69. >>If there are no natural rights, then there is no reason to object when a state does not grant a right to its’ citizens. (After all, rights not granted do not exist and anyone claiming otherwise is living “a fantasy”.)

    One thing that keeps confusing to me is this kind of felt need for things to have an intellectual justification. Is this really necessary? Can’t you just say you simply PREFER to have your natural rights, even if others consider them fictional, and will use your vote or force (revolution) if needed to guarantee to get them?

    I mean, “no reason” means “no universally compelling intellectual reason” – but why are those so necessary? Why isn’t preference and the threat of vote or force to have your preferences satisfied enough?

    This need for universally compelling intellectual justifications is really widespread and independent of political positions, I noticed recently that even reactionary bloggers do it (example: http://freenortherner.com/2016/01/15/alt-right-ethics/ ) even though I thought reactionaries are the only group that doesn’t feel the need to do this. Apparently not.

    I mean, this is need for universally compelling intellectual justifications suggests that you basically want to convince everybody. But why the heck would you want to convince everybody? It is completely unnecessary. It is enough to convince a group that is big and powerful enough to be a credible threat, and thus have their demands satisfied. And if you only want to convince a group, you don’t need to root everything in universally rational intellectual reasons. You can just say: we, this group, by our temperament and disposition, prefer to have X, Y, Z and will kick ass if we don’t get them. Why would you need more than this?

  70. >You can just say: we, this group, by our temperament and disposition, prefer to have X, Y, Z and will kick ass if we don’t get them. Why would you need more than this?

    Because without appeal to some objective morality politics degenerates into an increasingly bloody scramble in which power is its own justification and brute tribalism reigns. That is a bad outcome.

  71. But next to anything can be dressed up as objective and rational sounding, only a few % of people have the brainpower to tackle these things seriously, the rest more or less accepts any kind of a smart-sounding justification as an objective/rational one. I mean, just look at “philosophers” of the Derrida type, apparently one can even sell utter bullshit even to learned people as long as it is dressed up as pompous and smart-sounding enough. Most of intellectualism reduces to status games…

    But I guess you mean that intellectuals, intellectualism, rationality has a high status across tribal/group borders, basically everybody no matter their tribal affiliation likes to sound smart or associate with people who do, therefore, it makes a good negotiation Schelling point across groups? Putting it differently, the set of “all rationalistically justifiable political demands” is far smaller than the set of all potential political demands and this smaller set is generally stuffed with more moderate and more feasible ideas and thus it is easier to find a compromise within this smaller set?

  72. You’re making two separate claims, both of which I think are true but neither of which I think reduce to my original assertion.

    The fact that most people aren’t very good at assessing intellectual claims about objective morality is not relevant to the question of what happens to politics if you give up on them.

    On the other hand…I think even people who aren’t very bright are pretty good at assessing claims about objective ethics. They just don’t do it intellectually – the appeal is to some of the social instincts that drive it, such as the cheater-detection module the evo-psych guys found back in the 1990s.

    Note to self: write about the importance of the silent trade in clarifying some basics of objective ethics. I thought I’d done this already but archive searches aren’t turning it up.

  73. Pingback: Natural rights | Forks and Hope

  74. > personal warships

    Without them, there wouldn’t BE a United States. Personally owned warships were the backbone of the revolutionary navy. And the US Navy was still hiring privateers during the War of 1812 and the Civil War. The Second Amendment clearly applied to “arms” up to and including the most powerful weapon known at that time; an armed warship.

  75. @ TheDividualist

    Perhaps this will help lessen your confusion.

    All living things evolve. For most of the past billion years, this evolutionary development has been primarily physical in nature (changing morphology). Since the evolution of information processing organs (e.g. brains), advanced species now also evolve behavior patterns that are similarly advantageous to the survive and thrive imperative. In Homo sapiens, our large processors and sentience allow for complex patterns of thinking that augment our physical abilities and impact our selection results. As such, our patterns of behavior are evolving also (albeit only for a far shorter time period). This parallel evolutionary path is known as memetics.

    Ideas are an integral component of memetic propagation. Ideas that “work” in the evolutionary sense, will persist over long time spans.

  76. That is true, but subsidiary to the point I was making, which is that under U.S. law revoking 2A would not abolish RKBA because the RKBA is not granted by 2A. This is a legal point.

    And it’s an incorrect legal point. Before the 2A was ratified the moral RKBA had no legal standing, and were the 2A to be repealed it would once again have no legal standing. It would still exist, but Congress would be free to make laws that infringe it. (If there had never been a 2A in the first place, then there would be a legal argument to be made that RKBA is one of the unlisted rights that the 9A protects. But since it is listed it’s not, so repealing its listing would leave it unprotected.)

  77. @esr –

    > Note to self: write about the importance of the silent trade in clarifying some basics
    > of objective ethics. I thought I’d done this already but archive searches aren’t turning it up.

    You defined “silent trade” at length here, and you discussed it further in the “Meredith Patterson’s valiant effort is probably doomed” post, starting here (and carrying on for several replies).

  78. >You defined “silent trade” at length here, and you discussed it further in the “Meredith Patterson’s valiant effort is probably doomed” post, starting here (and carrying on for several replies).

    And now I shall follow through on this promise.

  79. Milhouse: Cruikshank stands as refutation of your argument.

    Now, will you give up on the equine sadonecrobestiality already?!

  80. Without them, there wouldn’t BE a United States. Personally owned warships were the backbone of the revolutionary navy. And the US Navy was still hiring privateers during the War of 1812 and the Civil War. The Second Amendment clearly applied to “arms” up to and including the most powerful weapon known at that time; an armed warship.

    Indeed – note also the Letter of Marque Clause, which simply assumed – as a commonplace – the existence of private ships armed with cannon, sometimes explicitly built and operated as privateers!

    (And likewise, to this day, one can legally own cannon, with no Federal interference to speak of, so long as they’re muzzle-loaders.)

  81. d5xtgr on 2016-01-18 at 11:41:20 said:

    “This has been brought up a few times in this thread, but hasn’t really been addressed, so I’ll try to ask it more plainly in hopes of getting a response.

    What empirical test can we apply to determine if a hypothesised right does, in fact, exist, in the absence of governmental recognition for said right?”

    The existence of a large black market or underground traffic might suggest a legally/governmentally
    unrecognized right. Drug trafficking and prostitution for example.

  82. That might make sense in some ineffectual and intellectual way. But in the real world, if the Constitution were amended to do away with the Second Amendment, then either fight the war now or kiss your guns goodbye. The BoR may recognize natural rights, or what some believe or believed to be or to have been natural rights, but if the formal restriction on the state from impinging on those is removed, they will disappear so quickly one might well say it’s nature’s law in action when they do.

    Then again, I think that natural rights are mere intellectual constructs, and that the only natural rights – natural because self enforcing or unavoidable – are the right to contract and to try to use violence in your own interest. Though I may have missed something, everything else seems to me to be a case of either, “Gee, wouldn’t it be nice?” or “Gee, isn’t it so awful?” or “God says:____” when He either said no such thing or, if he did, was acting as a supralegislature to insist upon something that would not otherwise naturally occur.

  83. >That might make sense in some ineffectual and intellectual way. But in the real world, if the Constitution were amended to do away with the Second Amendment, then either fight the war now or kiss your guns goodbye.

    But Cruikshank 1876 would still be Cruikshank 1876 – it would still be black-letter law that RKBA is not a grant. You are right that if political conditions allowed the repeal of 2A there would have to be a war; my point is that with the Cruikshank doctrine in place, repeal of 2A would trigger a general legitimacy collapse, which would change the terms of conflict.

    With Cruikshank, the pro-2A side is in the position of upholding the law and the principles of the Founders against a usurpation of power. Without Cruikshank, “society” just changed its mind and there’s no recourse; the pro-2A faction are disgruntled losers and nothing more.

    Napoleon said: In warfare the moral is to the physical as 3:1. I know which of those battles I’d rather fight.

  84. In the US, as a (largely) consumer service, delivery and waiting times actually matter. The result is that it is much faster and easier to be able to get to a doctor or specialist in the US.

    That’s just the thing — in Canada, health outcomes are uniformly good, irrespective of socioeconomic status. In the USA, quality of care — and expected health — is proportional to income.

  85. Mussolini did indeed make the trains run on time.

    Nope. He just made it illegal for the press to mention when they were late.

  86. Before the 2A was ratified the moral RKBA had no legal standing,

    That would come as a great surprise to the signers of the Declaration of Independence, not to mention those who signed the Declaration of Arbroath or even the Magna Carta.

  87. Okay, a) Cruikshank, to the extent it isn’t already overturned (and to a large degree, it already is, not just from Heller but from other decisions), can be fully overturned by any five folks in black robes sitting in the right building, but it doesn’t have to be because, b) there is a difference between dicta and the core of the decision. The core of Cruikshank depended on whether the 14th Amendment applied only to states or also to individuals acting without color of authority from a state. They didn’t need to address the 2nd Amendment at all to decide that the 14th did not apply to individuals, hence the passing reference to the Second Amendment is mere dicta, and not especially authoritative.

  88. @TomA

    The term “natural right” is a concept. It implies that a phenomena would exist even in the absence of our species (somewhat like a fundamental law of physics).

    It implies no such thing. The word “right” (except when used in science fiction and hypotheticals such as the above) only applies to our species. The nature of our natural rights is defined by the nature of our species. In the absence of our species, and the presence of some other species sufficiently intelligent to form a concept analogous to what we call “rights”, that concept would necessarily be shaped by the nature of that species.

    For instance, if one posits a planet populated by intelligent insects, there might be developed a theory of “rights” that allows a worker to be killed any time her queen (or an officer of the Crown) ordered it. The human theory of rights that declared slavery immoral would make no sense to them, because the requirements for insects to survive and thrive are so different from ours.

    And if either of us had the ability to travel to the others’ planets, we’d have a lot of trouble working out ways for our species to peacefully coexist, because each would see so much of the other’s behavior as just plain wrong. By the intelligent insects’ moral code, the US Civil War would be all they’d need to know about us to brand us as a threat to their society’s ability to survive.

  89. Milhouse: Cruikshank stands as refutation of your argument.

    WTH are you talking about? Cruikshank proves my argument. The court said that the RKBA exists independently of the constitution, and also that since the 2A applies only to Congress the states are free (at least as far as federal law is concerned) to infringe it. It follows that without the 2A Congress would also be free to infringe it.

  90. Indeed – note also the Letter of Marque Clause, which simply assumed – as a commonplace – the existence of private ships armed with cannon, sometimes explicitly built and operated as privateers!

    Except that privateers aren’t really private. They’re effectively an auxiliary navy, privately funded, but operated under license by the government. (Note, for instance, that privateers were exempt from the press, because they were considered to already be serving. Also note that they were only allowed to operate in time of war, and only against their country’s declared enemies.)

  91. The existence of a large black market or underground traffic might suggest a legally/governmentally unrecognized right.

    How so? Does the existence of a large black market for hit men suggest a right to murder?!

  92. Before the 2A was ratified the moral RKBA had no legal standing,

    That would come as a great surprise to the signers of the Declaration of Independence, not to mention those who signed the Declaration of Arbroath or even the Magna Carta.

    How would it surprise any of them? The RKBA had no legal protection in the 1770s. Parliament was free to infringe it as often as it liked. And there was no recognized RKBA in 14th century Scotland or 13th century England; the people you mention would have been astonished and alarmed at the proposition that all men have a natural right to bear arms, merely because they are human.

  93. >The RKBA had no legal protection in the 1770s.

    But one of the central charges against James II in the Revolution of 1688 was that he had infringed on the “ancient right” of Englishmen to bear arms. It is clear from period sources that this charge had a lot of moral force at the time, so even if a general RKBA had no protection in statute it must have been recognized in custom and common law.

    We also know that from at least as far back as 1363 (reign of Edward III) royal edict actually mandated that every able-bodied man practice archery. The longbow was the musket of its day; if this didn’t count as a form of RKBA, what would?

    English Republican theorists were building on this tradition when they articulated the theory of an armed citizenry as a bulwark against both invasion and despotic abuse.

  94. “Cruikshank proves my argument. The court said that the RKBA exists independently of the constitution, and also that since the 2A applies only to Congress the states are free (at least as far as federal law is concerned) to infringe it. It follows that without the 2A Congress would also be free to infringe it.”

    Except that that part of the decision has been reversed by later courts. The part that says that the right is not granted by the Second Amendment and does not depend on it for its existence has not been; indeed, Heller reaffirmed it.

  95. (laugh) rights are theoretical. if rights are not enforced then they have no practical existence. governments are practical. they most certainly can and do limit or violate or outright ignore “rights” and have done so from the beginning until now. the constitution is nothing more than a government charter. a constitutional convention can establish whatever new charter it likes, and it most certainly can, and probably would, result in further restrictions on “rights”.

  96. I have never met a Liberal that did not believe they were obligated to eliminate the rights of anyone who disagrees with them.

  97. they can do whatever we let them get away with. They have already perverted the “rights” supposedly protected by that piece of paper for centuries, some were perverted more easily than others but you cannot hold 1788 and 2016 up next to each other and say “still Constitutional”. So you let it be perverted before, but this time you REALLY mean it? That’s laughable. It’s all just a matter of degree once you agree to “just a little” unconstitutional goverment. And that was done long before our parents were born.
    You want to RETURN to Constitutional government, fine. But you can’t KEEP it because it’s already gone.
    If you want to convince me that you are serious about returning, then the thing I need to see is a serious attempt to restore the states’ representation in DC. If you don’t repeal the 17th, then nothing else you want to see is ever going to happen, I don’t care how much you want it.

  98. How so? Does the existence of a large black market for hit men suggest a right to murder?!

    Really? That the best you’ve got? There is a right to kill in self defense, but murder is considered by most a crime at the very least.

  99. Milhouse on 2016-01-21 at 01:49:34 said:
    > > The existence of a large black market or underground traffic might suggest
    > > a legally/governmentally unrecognized right.

    > How so? Does the existence of a large black market for hit men suggest a right to murder?!

    It’s not necessarily a straight up correlation. If there were a *large* black market for hit men it might suggest that the legal system is not doing what the society around it deems is just, and is failing in particularly egregious ways leaving the population to resort to private justice. Now, it is unlikely that this sort of failure would result in a large black market for hit men because usually it’s the sort of people who can hire hit men that the court system would be most likely to protect.

    From 1917 to 1919 36 US states passed what is now the eighteenth amendment that banned the manufacture, transportation and sale of “intoxicating licquors”. From 1920 to 1933 it was probably the MOST violated law in the US.

    That constitutional amendment was then repealed in 1933.

    Now, I would argue that if 2 or 4 % of the population are engaging in an illegal activity that that *alone* doesn’t suggest that a right is being restricted. However, when you’re getting upwards of 15 or 20 percent…

  100. @esr

    Thank you for putting something that I’ve thought for a while into more eloquent words.

  101. “not from religion but from game-theoretic analysis of the behavior of competing agents in a political system.”

    Have you ever considered the possibility that religion is the synthesis of such analysis over an iterative process spanning hundreds of generations?

  102. >Have you ever considered the possibility that religion is the synthesis of such analysis over an iterative process spanning hundreds of generations?

    No, but now that I have it took me only about three seconds to dismiss the idea as nonsense. This is not how religion sees or justifies itself, and if it had developed in that way the observable consequences would be quite different.

  103. Hm. Consider religion as two components:

    1) A set of rules for how to live among others.
    2) Justification for why one should live in that way.

    Component 1 could have evolved in the way Desiderius proposes, with component 2 as the stated and internalized justification. Granted, there are prescriptions for behavior that are more for the purpose of propagating and reinforcing component 2 than improving the game-theoretical outcome, but even those could be seen as indirectly helping the outcome.

    This would account for such ossified relics in religious practice as the Jewish and Muslim dietary restrictions, which make sense in the times they were codified as methods of preventing diseases, but not in modern times except as component-2 acts of piety.

  104. I get this feeling that Jay and Eric are both right in different ways. Back when I was growing up inside a Roman Catholic tradition, and rubbing elbows with other Christian traditions in the same small town, I noticed so many customs that had either obvious or indirectly evident secular benefits (abstinence until marriage, gratitude for one’s food, respect for the elderly, charity for the sick and poor, etc.) that I doubted that it could be explained as chance. These practices developed over generations; they were likely conscious choices at various points in history, that mineralized into habit that outlived their causes and became “right because it is pious”.

    At the same time, most of that process wasn’t itself conscious. I think natural law adherents almost all know what they’re doing, because the topic requires intentional consideration in terms of secular philosophy. The religious, by contrast, may or may not know. Some will explain how something happened “because back in the day, …”. I think they’re a distinct subgroup within adherents, some clergy, some Secret Masters of Laity, who take new information and use it to adapt old customs and steer the rest of the group. The latter probably don’t think about right and wrong that deeply; they just do what God tells them to do, and they’ve learned to see the nearest person with the right costume as a mouthpiece for Him.

    Furthermore, I think this could explain why some religions last for centuries while others die with their founders. Or maybe it serves as a reasonable basis for falsification: persistent religions are exactly those which establish a process for ordaining new leaders to guide the flock, who are sufficiently sane. It doesn’t have to produce nothing but sane leaders, and they don’t have to be strict rationalists, because strict rationalism isn’t necessary to make it to the next generation. I believe this process is not necessarily the officially recognized one in that religion, although it usually will be. In fact, the more the actual process diverges from the official one, the greater the probability that that religion will experience a historically significant schism, a reformation, or internal collapse. I believe this explains what I recall of the history of Christianity, for example, including Martin Luther, the Borgias, the Anti-Popes, the Church of England, etc.; and I cannot recall any examples of a religion led by one madman after another, nor one where the official ordainment process chose madmen while true leadership passed via unofficial channels and the religion still largely kept its laity. (This latter bit strikes me as a “just so” explanation, though, to be honest.)

    A variation on this hypothesis might even explain other types of groups.

    Now, this doesn’t explain people who are able to have deep conversations about their religion and simultaneously appear to genuinely believe its spiritual component. Some of those might just be really good actors. Some of them might be really good at compartmentalizing beliefs that don’t square with conventional Bayesian rationalism. A few might be chemically imbalanced. If I had to guess, I’d say most probably fall into the second category, and I further suspect that most human minds exist on a spectrum between those who operate largely on emotion and faith, and those who use reason, but still have a very small nut of axioms that motivate the rest of their actions, keeping them from being forever hesitant and pondering the truly right thing to do.

  105. I cannot recall any examples of a religion led by one madman after another

    Scientology is two for two so far.

  106. It is settled law that the Bill of Rights, in particular, does not confer rights, it only recognizes “natural rights” which pre-exist the Bill of Rights and the Constitution and which – this is the key point – cannot be abolished by amending the Constitution.

    Near as I can tell it’s also settled law that if you are convicted of a felony in the United States (irrespective of whether you’ve served your time or not), you lose your RKBA forever. If the RKBA is a natural right, do you believe that convicted felons still have it (provided their debt to society is repaid)? If you were convicted of a felony, would you continue to exercise such a right after serving your sentence? If you did so, and found yourself back in prison for decades on federal firearms offenses, would you still believe in such a “natural right”?

  107. I am very late to this thread, but… I just happened on it a couple of hours after reading a section of Charles Murray’s new book where he discusses the death of the 9th Amendment. I don’t have it handy, but there was a ruling in the New Deal era that specifically held that the only rights protected under the Constitution are those listed. It is a classic progressive double-think, to utterly ignore the 9th in order to achieve a desired result.

    I am glad that some jurisprudence since then has resurrected a tiny bit of natural law reasoning, but unless we get lucky in this election year, it will disappear and future rulings will be bound only by consequentialist, rather than Constitutional reasoning. The four “liberal” justices already are of this philosophy – whatever is needed magically appears in the Constitution or disappears from it. On social issues, Kennedy is of this persuasion, as indicated by his discovery of a right to government conferred dignity, which is contrary to natural law, not in the Constitution, but necessary to his bizarre majority opinion in Obergefeld – the gay marriage case, where he also confines religious liberty to the inside of places of worship, against all reasonable understanding of the 1st Amendment. Ironically, he didn’t need to do either – he could have used 14th Amendment “equal protection” reasoning (incorrectly IMO) to achieve the result and leave the tatters of religious liberty intact.

    We

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