The Nature of Rights and the Second Amendment

This piece first appeared as a two-part article on FaithfulPolitics.org on 5/31/13 (part 1) and 6/7/12 (part 2)

Gun control is a major debate in our country right now due to the recent Sandy Hook Elementary School shooting and the subsequent push by legislators at both the state and federal level to implement more restrictive gun control measures.  One aspect of this debate focuses on the Second Amendment, its original intent and the scope of the rights it protects.  Many people today believe that a citizen’s right to gun ownership lives or dies with the Second Amendment; if upheld we may bear arms, but if it is struck down or its meaning is twisted, then we lose that right.  Is this true?

My contention in this article is twofold: first, that many parts of the Bill of Rights – not just the Second Amendment – are biblically and theologically grounded in natural law; and second, because of this the Bill of Rights is actually superfluous, unnecessary, and even dangerous for our Constitution, human liberty, and a free society.  Let me explain.  

Biblically & Theologically Grounded

In political philosophy, one of the main discussions about “rights” in natural law is the distinction between positive and negative rights.  Many people do not know that such a distinction exists and that it is valid.  A right is a right, right?  Well, no.  First, the terms “positive” and “negative” are not evaluative, but describe the kind of duties placed on others.  Therefore, a negative right is one which places a negative duty on others not to interfere with that right.  I have a right to life; therefore, you have the negative duty not to harm or kill me.  I have a right to buy eggs and bread at the grocery story; therefore, you have the negative duty not to interfere with my purchases.  Of course, when we talk about negative rights in this sense, I don’t have a right to eggs and bread if I don’t provide adequate payment and compensation.  I would be arrested if I barged into a grocery store, swiped some eggs and bread and charged out claiming that it was my right to have them.  A negative right, therefore, says that I have a right to obtain a certain product, good, or service (whether it’s groceries, education, or a car) as long as I do so in legal and fair means, and you have no right to interfere and prevent me from doing such.  Negative rights are natural and innumerable.

A positive right on the other hand is one which places a positive duty on other people to provide you with that right.  These are also called “entitlements” and they only obtain through voluntary contract.  Thus, when you are arrested and the police officer explains your Miranda rights (that you have a right to remain silent and a lawyer represent you in court), the state or government is then required by law to provide you with a lawyer.  If you sign a lease contract with a real estate agency to rent your house, you are entitled to live in that home – just so long as you continue to pay rent.  If you fail to pay, the contract is broken and the realtor no longer has any obligation to provide you with a place to live; in fact, they evict you.  Positive rights are thus legal rights and contract law rights.

So how is this concept of positive and negative rights to be grounded biblically and theologically?  If you look at Gen. 4, you find God calling upon Cain to abide by the negative duty that was placed upon him not to kill his brother Abel, who had the natural right to live as someone with intrinsic worth created in the image of God.  Thus, Abel’s right to life was a negative right that Cain had to respect (and which he failed to do and was punished accordingly).  Notice also how Cain’s anger toward Abel was the result of his failure to be blessed by God in his sacrifice – a positive right he thought he was entitled to.  A quick look at the Decalogue also shows the prevalence of negative rights: do not murder, do not commit adultery, and do not steal.  Some of the prohibitions in the Decalogue are moral or spiritual in nature, such as idolatry, lying, or coveting.  But the three mentioned above presume the preexistence of a negative right: the right to life, the right to sexual fidelity in marriage (which obtains through the marriage covenant), and the right to property.  With ample time, one could do a full-length Bible study tracing positive and negative rights and natural law throughout Scripture.

To apply all of this to the Second Amendment, we can see that the right to buy and own a gun or firearm of any kind is a natural, negative right.  It is the same right as one has to buy a motorcycle or rent a house or purchase a gym membership.  No one is obligated to provide you with a gun if you refuse to pay for it, but neither should anyone obstruct your purchase of such.  Therefore, the Second Amendment is not actually granting us rights that wouldn’t otherwise exist; instead it is naming a nature right that already exists and codifying it as national law in the Constitution.  Those who insist that we wouldn’t have the right to bear arms without the Second Amendment are fooling themselves, because if they were consistent, we would have to have a Bill of Food Rights, a Bill of Transportation Rights, a Bill of Electronic Rights, a Bill of Education Rights, and so forth and so on, as we’d literally have to write down and codifying the thousands of negative rights that we all currently have and use every day.  This is ridiculous and shows the error of confusing positive and negative rights. 

An Unnecessary and Superfluous Bill

In Part 1 we distinguished between positive and negative rights, saw how they are biblically grounded, and how they apply to the Second Amendment.  In addition, the Bill of Rights enumerates many other negative rights that are natural and God-given, and thus already exist.  It wasn’t that the right to free speech, religion, press, and bearing arms didn’t exist before 1791, and then suddenly with the swoosh of a pen, these all became our rights.  Some rights do indeed come about through contractual arrangements between citizens and their government (such as Miranda rights and the writ of habeas corpus), but the majority of the Bill of Rights was no such thing.  In fact, during the Constitutional Convention of 1787, there were heated debates about whether a Bill of Rights was needed at all.  Many of those present thought that it was unnecessary and even dangerous.  Let me explain why.

The Constitution is based upon the idea of enumerated powers (see the Tenth Amendment).  This means that the three branches of government have no authority to do X, Y, or Z if such authority is not explicitly stated and given to them in the Constitution.  Most people misread the Constitution and think of it as a negative document telling the federal government what it cannot do; therefore, if no prohibition is found in the Constitution against government healthcare or taxes for this or that, the government has the right to do those things.  But this is reading the document backwards, and this position and interpretation has been consistently taken by those who want to sidestep the Constitution and give government free reign to do as it pleases.  Yet as originally intended by our Founders and the Constitution, the federal government cannot do those things which it is not granted explicit power to do.

The Bill of Rights breaks this pattern and places negative duties upon the U.S. government not to interfere with the natural rights of the people.  Notice that the Second Amendment says 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.”  It does not say, “This amendment grants the people the right bear arms.”  Instead it subtly acknowledges that the right is preexisting and that the government has no authority to infringe upon this already existing right (see also the Ninth Amendment).  Alexander Hamilton, in Federalist No. 84, warned against the dangers posed by a Bill of Rights:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.  They would contain various exceptions to the powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?  I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.

The Founders of our country were afraid that if they listed certain unalienable and natural rights to be protect by the Constitution, that eventually some people would begin to think that these are the only rights we have, and that rights themselves come from government.  Thus, if the Bill of Rights can be struck down, these rights can be taken away from the people.  Our Founders were wise and forward-thinking, since this is the very debate that we are having in our country today: many politicians and media pundits think that government has some kind of unlimited sovereignty that allows it to revoke our rights in the face of “reasonable” arguments; and the government can do so because it granted us these rights in the first place.  Unfortunately, such arguments are false, historically inaccurate, and ultimately very damaging to the body politic and the cause of human liberty, freedom, and flourishing.

Conclusion

The amazing conclusion from all this is that regardless of the original intent of the Second Amendment, we don’t need it to claim the natural right to buy a gun or possess any kind of firearm.  This is a negative right and the Bill of Rights simply identifies a few of the negative rights that we have; the right to bear arms pre-dates the Bill of Rights and does not cease to exist even if the Second Amendment is twisted and/or struck down.  Therefore, those who try to deprive others of the right to arms by claiming that the original intent of the Second Amendment wasn’t intended for that purpose have no substance to their argument.  (However, there is ample evidence to prove that the Founders did intend for the Second Amendment to protect the individual right to own firearms; see Clayton Cramer and Joseph Olson, “Pistols, Crime, and Public Safety in Early America,” Willamette Law Review 44 (2008)).

Our natural rights are God-given and are biblically and theologically grounded.  We see them in Scripture time and again.  We also see that within each of these natural rights is the responsibility to respect others, to not interfere with their decisions (as long as they are exercising their rights in a moral and lawful way that doesn’t harm others), and to always seek just payment and compensation for services or goods.  This applies to the right to purchase and own a firearm just as much as anything else.

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