The Ultimate Silliness of the Unrestricted Rights Argument

ConstitutionAs the Nevada Legislature considers three bills today from the NRA/ALEC offerings (easing restrictions on concealed carry permits, and allowing firearms on campuses) [TBN]  A person can only hope  that the most inane argument possible won’t be expounded on behalf of their passage.   It goes like this: “We have a RIGHT to bear arms.”

Yes, you and I do.  However, to argue that this particular “right” is so essential as to preclude any restriction is — no matter how it’s considered — is ludicrous. There are NO rights without some restrictions predicated by responsibility.

We have the right of Free Speech.  However, nothing in the First Amendment allows  me to slander another individual.  Likewise, nothing in that august Amendment offers me any succor if I indulge in such irresponsible behavior as to cause immediate danger to others — in the classic expression: I cannot yell “FIRE” in a crowded theater just to see what might happen for my own infantile amusement.

We have a Free Press.  What we do not have is the permission to engage in libel.   NRS 200.510 is quite clear about this:

“A libel is a malicious defamation, expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons, or community of persons, or association of persons, and thereby to expose them to public hatred, contempt or ridicule.”

Thus if I’m inclined to publish something maliciously lying in order to make someone or some group contemptuous, then neither the U.S. Constitution nor the Statutes of Nevada will support this kind of juvenile behavior.

We have the right to peaceably assemble.  Indeed we do, however if we “peaceably” assemble in a crowded intersection during rush hour, we’re going to get removed.   No one in his or her right mind is going to laud our endeavors, and our fellow highly irritated citizens will no doubt be more inclined to cheer the police officers who remove the unsafe bottle-neck we’re creating in traffic.   We may picket a location, but we cannot block a location. We may assemble in crowds as large as a Presidential Inauguration on the Mall or as small as a street corner protest — but whatever the size we are to behave ourselves as responsible persons.

We may exercise our freedom of religion.  However, we do not countenance sacrificing virgins, or even small animals.  No matter how much we may crave beneficent winds in our sails, it is unseemly (and unprotected) to sacrifice any Iphigenia on our own altars of Aulis.   Nevada law has an entire chapter (574) devoted to protecting animals.  We can’t leave pets unattended in hot motor vehicles (NRS 574.195) much less offer them up to appease the gods.

We may petition the government to redress our grievances.   Petitions were a hotly contested item during the English Civil Wars when the monarch was pleased to ignore all such requests, until forced to do so by cannons.  We’ve had a rough history with this right — especially when the Congress of the U.S. decided it would hear no more petitions from Abolitionists in regard to the issue of slavery and instituted the Gag Rule.   The elimination of the Gag Rule requires a government to read a petition — it doesn’t require that it act upon it.   There are limits.

Note that even in the 3rd Amendment which restrains any government from housing military personnel in private homes is limited by the phrase “but in a manner to be prescribed by law.”

The 4th Amendment allows us freedom from “unreasonable” searches and seizures by authorities.  It doesn’t allow a person to stockpile a collection of purloined merchandise in a garage the door to which is wide open and the stolen property is there for any and all to see.  Nor would the provisions of the 4th Amendment allow protection from having a neighbor report shipments of stolen property arriving for storage in the garage.

The 5th Amendment introduces some of our judicial rights: No double jeopardy, no prosecution without  a presentment or indictment, no deprivation of life or property without due process of law, and no property taken without just compensation, no self incrimination.    However much we have taken the Double Jeopardy idea to heart, nothing prevents the D.A. from filing separate counts of murder if there is more than one victim.  There is no self-incrimination required, but nothing in modern law prevents a spouse from testifying if it’s voluntary.  We can appeal a decision to have property seized, and appeal the level of compensation, but we probably can’t get away with charging a local government $12 billion for our shack which is about to get “re-developed” in a neighborhood improvement plan.   Again, there are limits.

The 6th Amendment extends our judicial rights: Speedy and public trials, impartial juries, information about the charges, confrontation of witnesses, subpoena power for witnesses on our behalf, assistance of counsel.  Once more there are limits.  A person has a right to counsel, but not necessarily to the highest priced white shoe law firm available.  The accused has a right to confront witnesses, but this has been augmented by video testimony in situations in which the witness is too fragile to attend court, or too emotionally vulnerable (as in children) to face a packed courtroom.   Amendment 7 lists another judicial right, that to a trial by jury for civil cases, and the guarantee that appeals courts will adhere to the rules of common law.   So, there are supposed to be 12 jurors?  Not necessarily, since Colgrove v. Battin it’s been permissible to have 6 jurors in civil juries.  [CRS/LII]

Amendment 8 forbids excessive bail and cruel and unusual punishment.   There was a time when a person could get 5 years hard labor for stealing an umbrella, or three for stealing a rasher of bacon in the U.K. [Telegraph] There was a time in this country during which horse theft would result in capital punishment.  What is “cruel and unusual” is a matter of continual debate.   Would bail set so high that an accused criminal could not possibly provide it be considered “excessive,” or a polite way to tell the murderer-rapist he’s not going anywhere before trial? We assume that these questions and definitions are subject to interpretation, and are not literal reminders to return to the days of public hangings, whipping posts, and hanging for horse theft.

In short, not one of the first 8 Amendments to the U.S. Constitution is considered so sacrosanct that it is not subject to limitations and interpretations.  At least not in reasonable circles.

The unreasonable ones have an alternate theory of Constitutional development in which the 2nd Amendment is the foundation of the others.  If so, then why is it second?  Or, more rationally, if it is considered foundational then are there no other, less violent, measures assumed for the furtherance and maintenance of American rights?  The answer, of course, is that there are.

You have the Right to Vote.   Any question regarding the structure and content of the U.S. Constitution is put to a VOTE, including the 2nd Amendment.  Amendments may be added, we added 27 of them.  Amendments may be repealed, we’ve repealed one of them, the 18th (Prohibition).   The inclusion of enumerated rights depends not upon who wins the Battle of the Capitol Mall, but upon which side marshals the best arguments and secures the most votes for a proposition.

The propensity to indulge in armed violence to maintain a “right” does not indicate that the urge is synonymous with the founding principle of American democracy — only that some people are perfectly willing to use violence in order to perpetuate a provision.   We have, indeed, fought to preserve the liberties listed in the Bill of Rights, and our Constitutional form of government, World War II being one of the best examples.  We fought, and survived, a heinous Civil War to preserve our form of federalism.  We did not necessarily engage in warfare to preserve an individual’s right to fight.

Flights of Fantasy

Some of the most fantastical arguments for the unlimited and literal interpretation of our 2nd Amendment are based in hypothetical terms the validity of which are wide open to critique.  What if the Government Came To Take Our Guns?  A possibility NO ONE is seriously suggesting.  What if the Iranians, the North Koreans, the Arabs, the Chinese, or any other popular bogeymen du jour invades us?    This isn’t going to happen if we’re getting what we pay for in terms of national defense:

US military spending

We have 11 aircraft carriers, 22 cruisers, 61 destroyers, 26 frigates, 53 submarines, and other craft to a total of 285 vessels. [USNavy]  Spain and Italy each have 2 aircraft carriers, everyone else has one to none. [GFP] And, the Iranians and North Koreans are going to do what?

Only in the per-fervid imaginings of screenwriters and those who have some difficulty determining the difference between fiction and non-fiction are we facing any immediate threat from anyone anywhere.  Theirs are gossamer dreams of gore and glamor  more congenial to Hollywood gadget movies than to any form of life as we know it.

And Temper Tantrums

The only other explanation offered for an armed citizenry at the ready to fight off the Intruder is more readily aligned with childish temper tantrums than practical politics.   On a personal level, I was about as happy with the Bush Administration as I was with the prospect of multiple  root canals without benefit of anesthetics.  However, I had, and used, the best tool available to reject the policies of that Administration — my vote.    I felt no need to run to the nearest gun retailer, no need to gather an arsenal.  My vote was sufficient.   If I am not well pleased with the policies and legislation put forward by any administration I have the first tool in the box to display my disagreement — my vote.  However, I am not, nor will I ever be the Center of the Universe, I share this country with 330,000,000 others.   Some will agree, and others not.  Should a majority of my fellow citizens disagree with me what do I do?  I wait for the next election.

The only thing on offer from those who need the porous bulwarks of imagination to justify their need for armed resistance every time some bit of legislation is not to their liking is a dazzling display of how little faith they have in this country and its political institutions.   How depressing to think that there people so disengaged from our civic life that they’ve convinced themselves violent rebellion is better than civil participation.  How dejecting the prospect that they believe their right to bear arms is more imperative than their right to vote?

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One response to “The Ultimate Silliness of the Unrestricted Rights Argument

  1. Well stated. Thank you.