A Rant on Rights

This one’s been coming on for a while, so make sure your seat belts are fastened and your seat backs and tray tables are in their upright and locked positions, ladies and gentleman, as the captain has warned of turbulence ahead.

I want to talk about rights. Human rights, if you will. Not civil rights, as I don’t intend to be civil. I intend to be honest.

Human rights are the rights you have because you’re human. They’re yours. They’ve always been yours, and that is without regard to location or circumstance, time or place. In particular, they are not specific to this time or place.

Consider, then, a primitive man, minding his own business. An animal sneaks up and attacks him. We are all generally agreed he has a right to fend off the animal, to defend himself against death or injury.

Similarly, if he is sitting there minding his own business, and another human sneaks up and attacks him, we are all generally agreed he has a right to fend off the other human, to defend himself against death or injury.

This is the basic formulation of a right to life and, as a corollary, the right to self defense. We can make similar arguments about liberty (were another human to sneak up on him and take him captive) and property (were another human to sneak up on him and take something which is his, which he gathered or fashioned with his own hands). Life, liberty, and property are things we all, generally speaking, acknowledge as things that a human being has the right to defend, with force, against those who would take them away.

Note that healthcare is not a right in this formulation, as our primitive man has no healthcare. Similarly with other so-called rights to modern conveniences, like transportation and cell phones.

You can make a similar argument on a religious basis, that such rights are bestowed on Man by God, as the founders of the United States often did, but we need not invoke the Deity to come to our current formulation. You are free to rely on the divine origin if you wish.

There is an important distinction to be made between rights and privileges. A privilege is something one is granted by someone else. In our discussion, that will be the government, whether federal, state, or local. Driving is such a privilege. One is not born with it. One must pass a test, receive a certificate, fulfill other obligations while exercising it, such as having insurance, remaining free of the influence of alcohol and drugs, and so on. Taking one’s driving privileges away for failure to observe these rules is not the denial of a right.

Back to rights. The U.S. Constitution, and particularly the eponymous Bill of Rights, recognizes several rights: the free exercise of religion, the freedom of speech, the freedom of the press, the right of the people to peaceably assemble, the right to petition the government; the right to keep and bear arms; the right to be secure in one’s person, houses, papers, and effects; life, liberty and property; the right to a speedy and public trial, to be informed of the accusation, to be confronted with witnesses, to have compulsory process for obtaining witnesses, and to have counsel; and the right of trial by jury.

All of these are defined as rights in the Constitution, they are not granted by the Constitution. The wording of the Constitution makes this clear, as it always talks about rights in terms of not abridging them, not infringing them, not violating them, not depriving someone of them, preserving them. That is, there is no language of granting them, only language of protecting and not violating them.

From this we see that the people, in the U.S. Constitution, are presumed to have these rights already. One cannot preserve something that is not already there. One cannot refrain from abridging, infringing, violating, or depriving someone of something that is not already there.

There is a clause in the Bill of Rights that does address violating rights, that gives the government permission to violate one’s rights, under specific circumstances. The Fifth Amendment reads, in part: “No person shall  . . .  be deprived of life, liberty, or property, without due process of law. . . . ”

Liberty here has been defined by the Courts: “Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”

In particular, the due process of law does not mean whatever Congress wants. Simply passing a law is not due process of law: “The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.”

Whether the government objective is proper or not depends on whether the right is considered a fundamental right, deeply rooted in American history and traditions. If so, strict scrutiny is applied, to determine whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

Further, a specific individual’s rights can be taken away by due process of law. In this case, the specific individual must be brought up before a court, and the case to deny him one or more of his rights must proceed by the fair application of judicial process.

Thus the government can deny the right to vote and the right to keep and bear arms to felons, who have had their guilt of a felony determined in court by due process of law. The government can deprive someone of physical liberty, incarcerating them as the sentence for their guilt of a crime, which guilt has been determined in court by due process of law. The government can even deprive someone of life, executing them for their guilt of a crime, which guilt has been determined in court by due process of law.

When we put this all together, we find that what the government cannot do is abridge, infringe, violate, or deprive, for large numbers of people, any right deeply rooted in American history and tradition, in a way that is not narrowly tailored to address a compelling state interest.

In particular, Mr. Hogg, Ms. Feinstein, Mr. Bloomberg, et.al., what you cannot do is to ban sweeping categories of common firearms to large numbers of Americans because the occasional asshole shoots up one of your gun-free zones.

Go fuck yourselves.

 

P.S. Just for the record, drivers from 16 to 20 years old who text while driving are responsible for one thousand deaths and one hundred thousand injuries in car accidents every year. It took all U.S. mass shootings fifty years to total one thousand deaths, and teenagers texting while driving match that every year.

A teenager with a gun killed seventeen kids in Parkland, FL, on February 14, and this is a Big Deal. Since that day, in less than seven weeks, teenagers texting while driving have killed over a hundred and twenty people nationwide, and — crickets.

So when Mr. Hogg starts lobbying for banning the sale of cell phones to anyone under 21, I’ll consider that he’s a serious policy guy and not the latest pea-brained sock puppet for fascist gun-banners.

3 thoughts on “A Rant on Rights”

  1. To play devil’s advocate: if, hypothetically, someone builds their own car and drives on a road they constructed or on open country, why is that a privilege to be granted by government rather than a right to use the fruits of their own labor?

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  2. Nice article, Rich. I would further add that a Right is not something someone else must be forced to provide. In order to have a “right” to healthcare, the state must force others to pay for it.

    For me to have the right to self defense or the right to free speech, no one had to be required to do or give up anything.

    Like

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