Does the Bill of Rights Grant us Rights?

Tuesday 3/19/13

In one of my classes today we had a discussion on gun control since we are writing a short paper on the topic this semester.  It was interesting listening to the comments, as many people had good things to say, but many others were wildly uninformed and presented false information and bad thinking.  It was instructive to me not to talk about things I don’t really know about and haven’t studied.

Bill of RightsOne of the issues that came up was that the 2nd Amendment is an “American thing” not a “biblical thing” (I think those were the exact words used).  The 2nd Amendment supposedly grants us rights that the Bible doesn’t grant us and which are not ground in good theology.  It was also claimed that the 2nd Amendment was originally written to give the states the right to a state militia, something that is irrelevant now, and thus the amendment isn’t needed.  I will address the first issue in this blog post; a further discussion about the original intent of the 2nd Amendment will have to wait for later as it is a complex and highly debated topic.

My contention in this post is twofold: first, the entire Bill of Rights – not just the 2nd Amendment – is indeed biblically and theologically grounded, and second, because of this the Bill of Rights is actually superfluous, redundant and unnecessary in our Constitution.  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 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 come about due to voluntary contract.  Thus, when you are arrested you are told your miranda rights by the police officer, that you have a right to remain silent and to have 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.

If you are still confused about positive and negative rights, watch the LearnLiberty videos below.

What are Rights?

Positive vs. Negative Rights

The distinction between these two kinds of rights is crucial for the world today.  Have you not heard people say (Christians and non-Christians), that everyone has a “right” to food, basic clothing, shelter, housing, education, transportation, healthcare, and the like?  Well, what kind of rights are they describing here, positive or negative?  It’s certainly true that everyone should have the opportunity to all these things if they are able to make just compensation and payment for them, but if not, who pays?  What is being described here are not negative rights that are natural and should not be denied us, but positive rights that are an entitlement that only obtain through voluntary contract, which always includes the exchange of a good or service for payment.

Some people who like to disparage America, claim that this country is obsessed with our rights and individualism, and we’ve forgotten the responsibility and duties we have toward one another.  However, such sentiment is merely uninformed, since as we have already seen all rights impose a duty or responsibility upon others: either the duty not to interfere or the duty to provide.  So anytime someone claims a right you can be sure that everyone else is saddled with a responsibility.

Cain & AbelSo 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 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, do not steal.  Some of the prohibitions are moral or spiritual in nature, such as idolatry, lying, or coveting.  But the three mentioned above must presume the preexistence of a negative right: the right to life, the right to sexual fidelity in marriage, and the right to property.  If I had the time, I could do a full-length Bible study tracing positive and negative rights throughout Scripture.

Some people will claim that there are positive rights of a negative nature found in the Pentateuch, such as the obligation for the people of Israel to care for widows, orphans, and the stranger.  For example, those with fields were to leave the edges unharvested for those in need (Deut. 24:19), and the priests were to collect a tithe at the tabernacle to then be distributed to the poor and needy in the land (Deut. 14:28-29).  A couple of things to note about this.  First, all of these stipulations take place within the covenantal contract God made with the Israelites: because he had redeemed them from Egypt, he had the right to require these things of them.  Second, all of these are individual commands that were to happen at the personal, local, or tabernacle/religious level, not administration and enforcement through a massive government bureaucracy (in fact, strict restrictions were placed upon the king, e.g. Deut. 17:14-20).  All believers are responsible to help those who are in need (1 John 3:16-18), but this is to be fulfilled through personal volition, not government intrusion and redistribution.

To apply all of this to the 2nd 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 2nd Amendment is not actually granting us rights that wouldn’t exist otherwise; instead it is naming a nature right that already exists and codifying it in law.  Those who insist that we wouldn’t have the right to bear arms without the 2nd 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.

Ironically, many people who claim to be able to interfere with and trump a person’s negative rights (such as buying a gun or refraining from buying healthcare), are themselves make a rights claim.  The next time someone says you don’t have a right to purchase a gun in the configuration you want, ask them where their right to prevent you from doing that comes from.  Most likely, they are pulling this “right” of theirs out of thin air or propping it up through government power, bullying, and rhetorical manipulation   Don’t be bullied.

An Unnecessary and Superfluous Bill

As we can see, the Bill of Rights names only 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), but the Bill of Rights was no such thing.  In fact, during the Constitutional Convention of 1787, there was heated debate about whether a Bill of Rights was needed at all.  Many of those present thought that it was unnecessary, since most of our rights are natural and unalienable, and they also believed it would damage those rights claimed.  Let me explain why.

Founding FathersThe Constitution is based upon the idea of enumerated powers (see the 10th 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 can’t 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 I think this position has been consistently taken by those who want to sidestep the Constitution and give government free reign to do as it pleases.  The federal government cannot do those things which it is not given 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 2nd 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 preexistent and that the government has no authority or right to infringe upon the already existing right.

However, notice also the 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Notice that it says the rights in the Constitution are “enumerated,” not “granted.”  They are simply being named, not created.  Notice also that there are other rights retained by the people, meaning the people already have them and they don’t need to be granted them by government or other powers.  What are these rights?  These are the innumerable other negative and natural rights that we all have that the Constitution didn’t list off (and which it technically couldn’t have since the document would have ballooned to hundreds if not thousands of pages).

The Founders of our country were afraid that if they listed certain unalienable and natural rights in 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, since this the very debate that we are having today in our country: many politicians and those in the media think that government has some kind of unlimited sovereignty that allows them to revoke our rights at their whim, or any such reason.  And the government can do so because it granted us these rights in the first place since they are codified in our Constitution.  Unfortunately, such arguments are false, historically inaccurate, and ultimately very damaging to the body politic.

Conclusion

The amazing conclusion from all this is that regardless of the original intent of the 2nd 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 2nd 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 2nd Amendment wasn’t intended for that purpose have no substance to their argument.

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 negative 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.  So the next time someone tries to tell you that the Bill of Rights or the 2nd Amendment is an “American thing,” inform them kindly that they are wrong and explain to them the difference between positive and negative rights.

3 thoughts on “Does the Bill of Rights Grant us Rights?

  1. Its incredible that you manage to deny that food, shelter, saftey,etc. are negative rights when the Bible is fairly clear that providing for these things is the duty of the Christian. Maybe I’m wrong but I’m pretty sure that Isaiah didn’t say only provide for the poor and needy when they can pay you back. But of course you manage to affirm that ownership of a firearm is a negative right. It;s all just very astonishing that you manage to claim that the purchase, ownership and use of a unnatural, man-made killing machine is somehow a “natural” right granted to us from the beginning.

    When you say…
    “Notice that the 2nd 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 preexistent and that the government has no authority or right to infringe upon the already existing right.”
    you are one-hundred percent right. The Bill of Rights does not say that the people have the right to bear arms and while I do not want to get into a constitutional interpretation debate with you we cannot simply dismiss the fact that the founders chose to word the amendment one way and not the other. Words matter, grammar matters, these things matter when you are reading and understanding a document from hundreds of years before. To say that you are anyone has access to the original authorial intent of any document is pure intellectual arrogance. Documents are fluid and changing and good hermenutics doesn’t pretend to have all the answers

    It is also important to point out that while your discussion of enumeration is correct (sort-of) you miss the point. No one doubts that the founding fathers believed in “a right to bear arms” the debate is whether or not they believed in “the right to bear arms”. While subtle the difference between these two ideas is huge. Collective vs. Individual is an ongoing debate among constitutional scholars.

    In your final paragraph you claim that “Our natural rights are God-given and are biblically and theologically grounded” and “to always seek just payment and compensation for services or goods”. While this may sound nice and support the close-minded, western, capitalistic view most evangelicals have of Jesus it simply does not hold up to any theological or biblical scrutiny. While I am sure you can walk out any number of passages you feel support your capitalism biblically remember that slavery, racism, sexism, “witch-burning”, and many other injustices have been justified using the Bible in one way or another.

  2. It sound to me like “a full-length Bible study tracing positive and negative rights throughout Scripture” would make for an excellent dissertation.

    Provided that Tim doesn’t see it, of course – it might give him an aneurysm. (Although, I’m sure that he wouldn’t be so arrogant as to assume he could access your authorial intent.)

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