All Commentary
Saturday, July 5, 2008

Getting Rights Wrong

“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed. . . . –United States v. Cruikshank (1876)

It's the Fourth of July, the day we ought to contemplate and rejoice in Jefferson's radical declaration of the self-evident truth that all individuals are equally endowed with certain unalienable Rights, … among these … Life, Liberty and the pursuit of Happiness.

Alas, the day cannot be one of unmitigated joy since we have again been reminded that the purported protectors of our liberties have little understanding of those rights. We thus live under constant threat from the very people who claim to protect us.

As you might guess, I am referring to the U.S. Supreme Court decision in Second Amendment case, District of Columbia v. Heller (pdf opinions here). By a 5-4 margin, the Court struck down Washington, D.C.'s handgun ban as a violation of the Second Amendment. (The stricken law also required that rifles and shotguns be kept unloaded and either trigger-locked or disassembled.) The majority opinion, written by Justice Antonin Scalia, is being read as a ringing proclamation that the Second Amendment protects an individual right to keep and bear arms unrelated to service in the militia.

It does — as far as it goes. But does it go far enough?


Preface Is No Limit


First, let's give Scalia his due. He admirably demonstrates on many levels — historical, grammatical, and otherwise — that the preface to the Amendment does not limit the scope of the right being acknowledged. When the authors wrote, A well regulated militia, being necessary to the security of a free statehellip;, they were not saying the right to keep and bear arms was to be permitted only for members of the militia. The pitiful dissenting opinions by Justices John Paul Stevens and Stephen Breyer to the contrary notwithstanding, the evidence all goes in the other direction. (See my Reading the Second Amendment.)

Why did the authors include the preface? As Scalia explains, the controversy of the day (1787-1789) was not over whether people had the right to possess weapons, but whether that universally acknowledged right, inherited from England, should be codified in an amendment to the Constitution. Let's remember that when the Constitution was unveiled, Antifederalists expressed a good deal of concern about the concentration of power in the proposed central government. This was a drastic change from the Articles of Confederation. One of the concerns was that the new government would establish a standing army and disarm the militias in the states — militias that consisted of all able-bodied white males. Tyranny akin to what George III had presided over would then be at hand.

The Federalists responded that the central government could do no such thing because no relevant power was given to the Congress by the Constitution. The Antifederalists were not pacified, and some states ratified the Constitution with a demand that a bill of rights be added. Hence the Bill of Rights and the Second Amendment. The preface was meant to reassure the critics of the new constitutional order. Still, at least some Antifederalists were not reassured.

While Scalia irrefutably shows that self-defense against tyranny and invasion of one's home are within the scope of the right to keep and bear arms (along with hunting), he concedes — dangerously — that the right is nevertheless limited. He writes:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purposehellip;. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [Emphasis added.]

Now in light of Scalia's statement, look at how Stevens begins his dissent:

The question presented by this case is not whether the Second Amendment protects a collective right or an individual right. Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right. [Emphasis added.]

As these quotations show, both justices concede that the scope of the right is finite. They just disagree over where the line is to be drawn. This is not a difference of principle but of degree.

We often hear people say that rights are not unlimited or not absolute. Such an assertion has two senses, one trivial and one not so trivial. Stevens writes, The Second Amendment plainly does not protect the right to use a gun to rob a bank…. Not to be disrespectful, but as my son, Ben, used to say when he was little, Duh. To put it in more technical terms: no kidding. The Amendment of course can't protect the right to use a gun to rob a bank for one very simple reason: There is no right to rob a bank. To rob a bank you have to violate someone's life, liberty, and property — and no one has the right to do that, with or without a gun. By their nature, rights don't conflict. That would defeat their purpose, which is to define the sphere within which each person can live his or her life unmolested.

If all we mean when we say rights are limited is that no one can rightfully violate other people's rights, then the point is a trivial tautology. (Not all tautologies are trivial.) You have no right to do what you have no right to do.

But that's not what is usually meant. Scalia hints that laws prohibiting carrying a gun into a school may not be included in the Second Amendment. Carrying a gun in a school per se violates no one's rights. What if it's your school? Or what if the owners doesn't mind if you carry the gun? Clearly, no rights violation would occur. Likewise with concealed carry or possession without a permit or possession of an unregistered firearm.

On the other hand, possession of weapons of mass destruction, because they can't be used discriminately against aggressors, holds such a potential to violate rights that they would not fall within the scope of the right to keep and bear arms. (Question: Why then should politicians be allowed to possess them?)


Ominous Limits


Thus both Scalia and Stevens believe the limits of our rights are not other people's rights, but something else. On what grounds? Where does the Second Amendment permit the inference that firearms may not be carried without a government license? And even if that were implied, why would it trump our understanding of natural rights? All the talk about constitutional rights can lead us to forget that those were merely codifications of the natural rights Jefferson spoke of. We forget that at our peril. As Lysander Spooner would say, the language of the Constitution must be read plainly with a presumption of liberty in mind.

If, apart from contractual obligations, the boundaries of rights are to be drawn short of the boundaries set by other people's rights, then there is only one agency to do the drawing: the state. But the idea that the state should define our rights conflicts with the ideals we claim to celebrate today. Don't misunderstand what I am saying. It is entirely proper to inquire whether a person's action violated someone else's rights. If so, we may conclude that he had no right to do what he did. But it is illegitimate to claim that a person who has violated no one's rights has nevertheless improperly exercised her rights beyond the scope permitted or implied by a constitution or law. No constitution or law may legitimately set an arbitrary limit to a right. (For a similar take, see Jeff Snyder's Rights Without Exceptions, The Freeman, May 2001).

I suspect that the great libertarian political philosopher Anthony de Jasay is shaking his head at the fuss about the Heller decision. After all, he warned us about rightsism:

Rightsism purports solemnly to recognize that people have rights to do certain specific things and that certain other things ought not to be done to them. On closer analysis, these rights turn out to be the exceptions to a tacitly understood general rule that everything else is forbidden, for if such were not the case, announcing rights to engage freely in certain acts would be redundant and pointless. The silliness that underlies rightsism and the appalling effect it has on the political climate illustrate how far current liberal thought has drifted away from a stricter structure that would serve the cause of liberty instead of stifling it in pomposity and confusion. [Quoted in Liberty and Political Obedience.]

He's right. Today the burden of proof is on the rights claimant not on the state that presumes to limit her freedom. That is unfortunate.


A Final Thought


Scalia holds that The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (Emphasis added.) Is that all it protects? His own opinion tells us it once also protected certain unlawful purposes. He writes,

There are many reasons why the militia was thought to be necessary to the security of a free state.hellip; [W]hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny…. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that '[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.

When early Americans spoke of self-defense, they didn't just have common criminals in mind. They were thinking of the would-be tyrants up the road. Defense against tyranny is always considered illegal — by the tyrant. Had the first Americans lost, they would have been hanged as traitors. But they won. So we celebrate them today.

Happy Fourth of July!

  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.