The Straight Dope on the 2nd Amendment

Great Debates
81

In the case of free speech and other such “negative rights”, the thing you have the right to demand from the government is to be left alone.

I said nothing about having to ask permission. The right to demand to be left alone has nothing to do with getting permission or obtaining clearance; it is the right to force the government to go away if it seeks to interfere – which is exactly what you have in the case of free speech.

Technically free speech, et al. are privileges, not rights. Most of the rights protected by the Bill of Rights are analytically privileges, because they preserve activities that we are free to do without the government being able to interfere in them.

82

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Yes, the right inherently includes the ability to ask the government to leave you alone, but I think you’re framing it oddly.

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Gotcha.

Woah there. Where’d you give this? An activity that we’re free to do and are free from infringement on is definitely the definition of a right, rather than a privilege. Of course, there’s some variance of opinion on what constitutes a right and a privilege (and your use of “technically” to indicate that you’re stating facts is sort of misplaced), but if anything is to be considered a right, “negative rights”, as you put them, seems to fit the bill.

83

SenorBeef, you clearly do not understand the technical meaning of “right”, “privilege”, or “duty”. Whenever there is a right there is also a privilege and a duty; this is the nature of these things. A privilege is merely an action one is permitted to do freely (that is, without risk of responsive compulsory action from another party). Free speech is a privilege: it is the privilege of saying whatever you want without risk of retribution from the state. It is also the right to be left alone when speaking.

The term “negative right” is sometimes used to refer to fundamental privileges because some people (including, apparently, yourself) have this mistaken notion that privileges are revocable while rights are not. Virtually any right or privilege you can name is revocable under appropriate circumstances.

84

But when a government exercises its power to the extent of acting outside its jurisdiction as outlined by the “consent of the governed”, in this case, that would be the Constitution, that government then becomes an oppressive criminal organization and the people retain the right to either abolish that government or to cling to the comforts that can be found with apathy and submission.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”
–The Declaration of Independence–

Sadly, the nature of man is to go along, to get along. It was even this way in the era of the Revolution. The majority of the inhabitants of the Thirteen Colonies were fairly apthetic about seperating from the Mother Country. It was a minority that initiated the Revolution.

85

I don’t think it’s a lack of understanding on my part of the terms, since there’s significant disagrement on what exactly those terms mean, but a mere miscommunication. I think I see what you mean, and what you refer to as privileges in this context, I referred to as ‘legal protections for rights’ previously.

86

If rights can legitimately be revoked by governmental fiat, then there is no such thing as a fundamental human right. There is no legitimate reason for anyone to disagree with any dictator, no matter how foul, since that dictator has the legal power to declare what is and is not a right by virtue of the fact that rights can legitimately be revoked by governmental fiat.

87

I guess my views on rights boils down to a couple of factors.

I was born and raised in a country that essentially respects basic civil liberties; so I was (or may still be) spoiled somewhat, and take them a bit for granted.

OTOH, I am fairly well travelled, and have seen some amazing shitholes where no civil liberties or human rights whatsoever were respected, by anyone, civilian or government. As such, I think I have a pretty deep appreciation of civil liberties and human rights.

Also, I have seen first-hand and have heard enough from the news to know that anyone can be deprived of their rights. I fully acknowledge that these unfortunate people have (or should have) these rights fundamentally, but that they are withheld from them by force by someone else.

The only way for these people to restore their rights (or resume practicing them) is by nullifying the force that is withholding them from them.

Also: no right is absolute. And since any two people can get into a fistfight over the color of the sky, the question of where the line between freedom and infringement lies can be fairly hairy.

Being something of a (beginning) student of philosophy, I tend towards rule-utilitarianism and American-style pragmatism, with a little bit of Hobbes and Locke thrown in for good measure.

As such, I tend to discount the concept of inherent, inalienable rights. That rights are something that exists independently outside the imaginings and thoughts of mortal humans.

Generally, I think that they exist because we created them. A teeny-tiny part of me will grudgingly admit the possibility that they may have been there all along, perhaps divinely inspired, and we just “stumbled over them” by accident or design on the path to enlightenment. But overall, the concepts of civil liberties and human rights are something we created, and that we, collectively, by mutual consent or a super-majority, are free to redefine

Don’t get me wrong! I like civil liberty and human rights. I think that there should be as many of them as people and societies can manage, and that they should be rigorously defended. I firmly believe that human beings are better off with them than without, even if people, individually, don’t always recognize what they are good for, or how best to utilize them.

On my scorecard of Really Great Ideas and Inventions, civil liberties and human rights get an A+ with extra credit.

But I have a hard time swallowing the notion of some absolute, pre-existing and inviolable, inflexible right to anything. If you can’t conceive of it, or defend it morally, intelectually or philosophically to others, then, in my book, it just ain’t so.

And me, a Life Member of the NRA.

:rolleyes:

SO for me, the right to keep and bear arms is not absolute; like any other right, it comes with responsibilities and limitations. I believe (and have some fairly decent evidence) that the vast majority of at least American gun owners practice that right safely and responsibly. I discount needs-based arguments out-of-hand for all rights and civil liberties, not just firearms.

I also firmly believe that, right here and now in the USA, that right is, in some places (Chicago, D.C., N.Y.C., California, etc.,) being actively infringed upon, and in a few others seriously being encroached upon to the point of infringement.

I believe that it needs to be actively defended, from anti-gun forces everywhere, not just here in the USA. I reject licensing and registration schemes out-of-hand. Not out of any practical consideration; on the contrary, I believe that licensing and registratrion might be an invaluable tool in eventually reducing crime, and aiding law enforcement in apprehending violent criminals.

I reject licensing and registration because anti-gun forces have publicly avowed a strategy of incremental restrictions as the best road to total gun bans and confiscations, and that the vast majority of American Couch Potatoes will let that right to keep and bear slowly go the way of the dinosaur simply because they don’t have a real stake in that fight. See Razorsharp’s commentary above about the number of active participants in the American Revolution.

I reject mandatory trigger locks, mandatory storage or community storage laws for the same reasons, and because mandatory locks/storage laws are unenforceable w/o licensing and registration schemes, and w/o giving up the 4th Amendment.

I reject letting law enforcement-types at the NICS database, because they get to peek at everyone else while they’re in there looking for “their suspect.” Whose their suspect? Sooner-or-later, it may very well be “every gun owner.”

The gun control crowd has declared War on the American gun owner; that’s fine by me. There’s more of “Us” than “Them” (so far), and we have a voice in our government, too.

88

What many people seem to be misunderstanding is that rights are not created by some external force of nature. A right is created by law; in the case of gun ownership it is created by the Constitution of the United States, which ultimately is a legal document. If the 2nd Amendment was revoked (which is extremely unlikely but not impossible under the law) then the right of gun ownership would be changed to whatever the new law was.

There is no such thing as an inalienable right; what one law can create, another can revoke.

89

If a right is truly merely a creation of fiat (law), then there is no justification for claiming that any law that revokes or denies a right is wrong. There is no justification for opposing tyranny, since tyranny is every bit as justified as is respect for civil rights. That may actually be the way the world works, but anybody who believes this has no justification for demanding anything on the basis of it being a “right” or “civil right” if the law currently does not recognize it as such.

Therefore, Little Nemo, you must agree that, for example, the the USA would do no injustice were the Bill of Rights repealed. If you do not, then upon what basis do you form the disagreement?

90

Of course I don’t agree with that and nothing I wrote would imply I do. I wrote that rights are set by law. I never said that all laws were good. People should always work and struggle to improve the society they live in and that includes improving the legal system.

What I am saying is that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” is a law that was enacted by the American people, not a divine revelation or a force of nature.

91

ExTank: I understand your thinking on the concept of “rights” in a philosophical sense. And I understand how your position on the right to bear arms implies opposition to gun-registration schemes that might gradually open the door to gun confiscation. What I don’t see is the step in the middle: Why is the right to bear arms an important one, in your view?

In my experience, when Americans defend their right to bear arms, and they aren’t speaking from the perspective of a hunter or a gun collector, then everything they have to say boils down to two, and only two, assertions:

  1. I need my gun so I can defend myself, my family and my property from aggressive criminals, because I don’t trust the police to adequately do that job for me.

  2. I need my gun so, if it should become necessary, I can shoot at the police, or the U.S. Army, or the National Guard.

Do you accept both of these as legitimate and important considerations, supporting legal recognition of a personal “right” to bear arms? Or do you just accept one of them?

The second argument, known as the “insurrectionary theory” of the Second Amendment, assumes that the “well-ordered militia” is not an arm of the state but a countervailing popular force against the state, or else an arm of an individual state as against the federal government. (Two very different things.) That might well be close to what the drafters of the Second Amendment had in mind, but that doesn’t means it’s a good idea, or even a legitimate consideration. Revolutions are sometimes necessary and sometimes justified – how did this country get started? But, even when justified, revolutions are always illegal, by definition. No viable legal or political system can base itself on the premise that the people, individually or collectively, have any LEGAL RIGHT to resist public authority. If you want to resist the government you can do it the way Martin Luther King did it, and accept the risk of jail time, as he did. In the long run, that approach will be more effective, and more beneficial, and less dangerous, than shooting at cops.

92

Of course, there is also the “Red Dawn” scenario where American civilians use their personal firearms to fight foreign invaders. But nobody much worries about this any more, and, things being how they are, why should they?

93

They have no justification to “improve” a society. If a government can create or destroy rights by fiat, then whatever that government decides IS the extent of all possible civil rights and demanding anything more is utterly unjustified. Demanding civil rights when said civil rights are illegal is only legitimate if said rights exist regardless of whether or not they are illegal. If they only exist because of governmental position, then a government is 100% legitimate whenever it denies them.

It won’t work both ways.

94

So what? Your problem is that you have the presupposition that something is a right merely because a law calls it a right. Thus, you have to admit a priori that there is a right to bear arms. It is possible for ALL of the following to be simultaneously true:

Rights exist independent of any law recognizing them.

There is a law (Constitutional, even), that says that there is a “right to bear arms”.

There is no right to bear arms.
How can this be true? Well, it can’t if one believes in an omnipotent state that has the ability to create and destroy rights. But if rights exist INDEPENDENT of law, then all three of the above can be true. If a state cannot destroy rights, then the state also cannot create rights. Even if it passes a law claiming that a certain right exists, that does not mean the right exists. The law is in error, even if it is legal.

Now, I’m certain you are not so delusional as to believe that law cannot be in error. After all, it could be possible that a law be passed stating that the moon no longer exists. That doesn’t mean that the moon no longer exists, only that a false premise has been passed into law. Law and reality are only coincidentally related, much of the time.

95

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creartor with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Now, if “rights” are created by law, what law is it that has given us the “right” to our lives, our liberty, or our pursuit of happiness?

Certainly you are not suggesting that “We the People” owe our very “lives” to the benevolence of the almighty Federal Government, are you?

96

Razorsharp, please do not confuse or conflate the Declaration of Independence with the Constitution. When the Declaration was written, the members of the Continental Congress were embarking on a definitively illegal course – a revolution against a duly recognized sovereign authority – so they had to justify themselves by recourse to a higher law, to “Nature and Nature’s God,” and to the conception of “unalienable rights” as something pre-existing, rather than granted by the state or guaranteed by the public law. But when the Founding Fathers wrote the Constitution, they were CREATING a sovereign authority. They were drafting a legal-political instrument which expressly protects certain specific enumerated “rights,” while remaining silent on certain other matters which might or might not be “natural rights” in an ethical sense. Some Federalists even objected to adding a Bill of Rights to the Constitution, on the grounds that a definitive enumeration of the individual’s ethical rights is impossible, and a definitive enumeration of legal or civil rights that the government can’t touch implies that the government does have the authority to invade any right not so protected. They didn’t win out. So, when you speak of any “right” under the Constitution, that is NOT a pre-existing natural right which the Constitution merely recognizes; it is a legal right which, in a legal sense, you can claim ONLY because the Constitution guarantees it.

Consider the right of trial by jury. I don’t see how any philosopher could prove you have a “natural right” to have your case tried by a jury. It’s just something the English invented. The Framers (or, rather, those other national leaders, who proposed adding the Bill of Rights) wrote it into the Constitution because it seemed to produce justice, most of the time, and it provided the justice system with an extra correction mechanism, more or less insulated from political pressure. Your right to bear arms is a right of that kind, Razorsharp, it is not a natural “unalienable right” like life and liberty. I’m sure both Jefferson and Hamilton would have agreed on this point.

97

Rights, by your definition, are not created by law. They are protected by law. The consequences of exercising your unprotected rights are defined by law and society.

98

I don’t think “the right to bear arms”, in itself, as such, is a natural right. It has nothing to do specifically as arms. It’s more the concept behind it - the right to self defense - against criminals, oppression, whatever - that’s the fundamental natural right. The “arms” involved are irrelevant, whether they’re fists and rocks or laser weapons.

99

Who says they could have? You? How? Just by their presence? An armed civilian who tries to stop a mass murderer by use of arms more often than not is a dead civilian before he can have any impact. Because having a firearm and getting to use it are two very different things.

Demonstrably false, as evidenced by the very common use of toy guns in countries with strict gun regulation.

Here is a story with an armed citizen and a mass murderer: In Erfurt, Germany, a former student ran into a High School, shooting randomly, including through doors into rooms that teachers had hastily locked. Police was immediately notified, and a police car was on the scene in no time. The two policemen got out and tried to assess the situation from outside the building. The shooter saw them from inside and shot one of the policemen in the head. The result of the presence of two trained armed citizens was one dead armed citizen. Period. Who stopped the shooter? A former teacher of his who refused to show fear, faced him down and pushed him into a room and then locked it from the outside. Minutes later, the shooter claimed his last victim: Himself.

All that hogwash about armed citizens stopping mass murderers is nothing but testimony of the size the ego of some people gets blown up to when they have a firearm. Having a firearm doesn’t make you invulnerable. It doesn’t make you quicker. It doesn’t make you wiser. All it does is that it makes it very easy for you to kill people. So easy that you might kill people in an argument that might have ended with bruises otherwise.

100

As you can see easily, those rights people are endowed with by their Creator do not include bearing firearms. Quite the contrary, one could argue they prohibit their use, since firearms interfere with other people’s right to life.

There are two kinds of rights. Universal rights, and such rights a society grants itself and those living among it. Trial by jury is not a right people have been endowed with by their creator, but by the legislature, and thus the citizens, of the US of A. It doesn’t exist in Germany, and if you try to claim it, you will be laughed at. The same holds true with the right to keep and bear arms. And trying to claim that in Germany in violation of local laws can interfere with your right to freedom quite considerably if the offense is severe enough.