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.