





Wednesday, May 14, 2003

What is a "Right"?

Before I go to bed (who am I fooling, I'll stay up and read Cryptonomicon until midnight again) I thought I'd post this essay that won me membership priviledges over at a few months ago. It was short due to the 8,000 character limit for single posts to that forum. This should be an interesting exercise in HTML coding...

What is a "Right"?

Webster's has several definitions:

2: something to which one has a just claim: as a: the power or privilege to which one is justly entitled b: the interest that one has in a piece of property - often used in plural (mineral rights)
3: something that one may properly claim as due

All accurate, but incomplete. In speaking of the "Rights of the People" we refer to definitions 2 and 3, "something that one may properly claim as due" or "to which one is justly entitled." Some would add "endowed by the Creator." What about "life, liberty, and the pursuit of happiness?" Robert Heinlein wrote about those in his 1959 novel Starship Troopers:



So, what of the "right to keep and bear arms?" Like all "Rights of the People" the right to arms is a social construct - a declaration by a society of what is "right and proper," and generally agreed to by the population. A society is, by definition, a group with similar beliefs. The enumerated right to arms is historically a fairly new, and a very rare one. Throughout history, the strong have made the rules and the weak have lived under them. Our English ancestors won a limited right to arms from the nobility through centuries of fighting their battles for them. In 1689, the English Bill of Rights proclaimed "That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law."

When our forefathers wrote the Constitution and debated on our Bill of Rights, they looked at their own recent past and at what England had done with that law, and concluded that it provided too much opportunity for interference. In St. George Tucker's American Blackstone 1803 review of American law, he wrote:


Thus then, as now, government worked to retain the exclusive use of armed force.

Our founders intended to prevent this. Their wording was simpler:


The meaning of these words went essentially unquestioned for a hundred years. There were questions about just who the People were, but not what "...the right of the people to keep and bear arms, shall not be infringed" meant. The 1857 Dred Scott decision looked at the question of who "the People" were, and declared that slaves and former slaves could not be "the People" because:


Then we fought a war, in no small part to determine just who "the People" were.

What followed was another ninety years of bad laws aimed at keeping slaves and sons of slaves disarmed "for the public safety." Laws to keep "those people" from being armed were introduced across the nation. The 14th Amendment was passed to ensure equal protection under the law for all, but the courts played along. U.S. v. Cruikshank in 1875 told us that the job of the federal government was to ensure all citizens received equal rights under the law, but the states were free to pass laws restricting the enumerated right to arms - at least to certain undesirables. In 1939, U.S. v. Miller proclaimed that the arms protected under the Second Amendment were somehow only those of military usefulness, but subsequent decisions using Miller as precedent proclaimed that Miller said that there was no individual right to arms. Once again, government worked to restrict arms to "those like us" - and then, later, "those like us" meant "those with power." Inevitably, our system of government - established by the people, for the people - has become more and more "us versus them." The "useful idiots" who fear guns, and the powerful who use them band together to change the meaning of the right to arms in the public mind.



This is a battle for public opinion, make no mistake.




Winston Churchill

(Yup, this HTML stuff is going to take a while to get good at.)

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