Foggy Bottom Line

Politics, Economics, and Other Silly Things

Posts Tagged Rights

Lifted From Comments

Aug 28

Posted by R. Stanton Scott in Constitution and Constitutional Law, Gun Rights, Rights, Second Amendment

My response to Mike W. and his comments on the Heller and the Founders: Scalia thread became rather long, so I decided to post it on the front page.  His critique in any event ignores the central claim of that post: that the majority opinion in Heller [PDF]says very little about the intent of the “writers of the Constitution” since it ignores them completely in favor of other commentaries and later court cases.  So it makes sense to abandon that thread, at least for this purpose.

Somewhere in the universe people live on a planet where a single mention that in some sense a right to bear arms for militia service is held collectively means that I “subscribed to the collective rights interpretation.”  Unfortunately, Earth is not such a planet, and I make no claim that the Second Amendment protects a “collective” right, whether or not I agree that such a right implies a corresponding individual one.  Instead I claim that the Second Amendment protects from infringement the power of States to arm their militias, and therefore militia members cannot be disarmed by Federal law or neglect.  This protection was the intent of the Founders, not a right to civilian use of firearms for self defense–which they believed the State could regulate.

After responding to my first Heller post with spurious claims about intellectual power, Mike gets around to offering three somewhat substantive comments which use quotes from five court cases to support his view that the Second Amendment protects an individual right of some kind.  Though he never specifies the nature of this right, I presume he means an individual right to possess and carry firearms for civilian purposes such as self-defense and hunting.  Even though this discussion does not address the central claim of this post–that the majority opinion in Heller does not show that the “writers of the Constitution” intended to protect such a right–I will address Mike’s points. Read the rest of this entry »

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1 Comment

Heller and the Founders Part Two: Stevens

Aug 22

Posted by R. Stanton Scott in Constitution and Constitutional Law, Gun Rights, Rights, Second Amendment, Thoughts of the Founders

Prompted by this comment to my post about armed insurrection and gun “rights,” I argued last week that Scalia’s majority opinion in Heller does not show that the “writers of the Constitution” intended to protect an individual right to civilian use of firearms for self defense.  In this post I will argue that it is in fact Stevens’ dissent which relies on evidence of the Founders’ intent, and it shows that they included the Second Amendment to protect “the right of the people in the several States to maintain a well-regulated militia.” Read the rest of this entry »

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5 Comments

Heller and the Founders Part One: Scalia

Aug 9

Posted by R. Stanton Scott in Constitution and Constitutional Law, Gun Rights, Second Amendment, Thoughts of the Founders, US Politics

In the first comment to this post, Bob S. cites the Heller decision in support of a claim that the Founders intended to protect an individual right to self-defense with the Second Amendment:

“Why are you still trying to peddle the hogwash that the Writers of the Constitution didn’t include the idea of self defense as part of the 2nd Amendment?

Did you read the decision in Heller? Did you see the laid out facts, quotes, and historical evidence that shows you are completely wrong??”

Bob goes on to quote a section of Scalia’s opinion citing Georgia and Louisiana Supreme Court decisions from 1846 and 1850 respectively.  He apparently believes that the majority opinion in the Heller case, written by Justice Antonin Scalia, depends on the intent of the “writers of the Constitution” for its analysis and legitimacy.  But the sources cited in Scalia’s opinion show no such thing.  Instead, they depend on interpretations of contemporary dictionaries, State Constitutions, and later interpretations of these documents, along with Scalia’s interpretation of the interpretations.  But let’s take a closer look at the Heller decision as a whole and see which side actually relied on evidence of the Founders’ intent.  In this post, I will look at Scalia’s opinion affirming the judgment of the Court of Appeals; after that I will turn to the dissenting ones. Read the rest of this entry »

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45 Comments

Reasoned Discourse

Mar 12

Posted by R. Stanton Scott in Blogging, Commenting and Comments, Foggy Bottom Line, Gun Rights, Second Amendment, Uncategorized, Whack Jobs

[UPDATE: This post was originally published in an incomplete version.  The final version is now up.]

Frequent commenter Mike W., who writes on gun issues at Another Gun Blog, posted this comment to my post quoting John Adams in support of educating the young and poor.  Since he has taken the time to engage, and complains that I have not responded to his arguments, I have decided to address the points he makes there. Read the rest of this entry »

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53 Comments

Natural Kinds, Social Kinds, and Rights

Jan 17

Posted by R. Stanton Scott in Philosophy, Rights

[UPDATE: I should have credited Alexander Wendt with the concepts of natural kinds and social kinds I discuss in this post.  See Social Theory of International Relations, Part I: Social Theory. My apologies, professor.  I hope I at least added a bit of analysis with my discussion of whether rights are social or natural kinds.]

Americans talk a lot about rights (defined as a just claim or title, whether legal, prescriptive, or moral).  Some we have written down as specific limits on the power of government, such as prohibitions against infringement on a “right to keep and bear arms.”  Others remain less clearly defined yet just as vigorously claimed, like the right to freedom of movement or the “pursuit of happiness.”  We talk about “active rights” to assert our agency in certain realms (e.g., speech, assembly), and “passive rights,” which create duties for others to give or permit something.  We also distinguish between positive rights (to a good or service) and negative rights (to non-interference).  However we lay our claims to them, rights help define proper action and just institutions.

For some, the force of our rights claims and the definitions of justice we use them to reach depend in no small part on their sources.  If a creator endowed humans with specific rights, or if the nature of humanity confers them, individuals have more powerful claims against others, and the rights framework creates an a priori assumption of justice.  Rights that depend on human concepts of right and wrong developed through discourse, on the other hand, provide more limited protection for individuals and a definition of justice more subject to change.

In this post I will argue that rights are a social construct of inter-subjective understandings shared by humans, and do not arise from nature, whether or not metaphysical.  I will do this by first making a case that rights are social, not natural kinds, and then outlining their changing nature.  In a later post I plan to discuss gun rights in this context, since proponents link them to a foundational right to life. Read the rest of this entry »

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11 Comments

Blogging the Second Amendment

Jan 9

Posted by R. Stanton Scott in Blogging, Guns and Ammunition, Rights, Second Amendment

A few months ago, I stumbled upon a blog called Southern Female Lawyer, written by an East Tennessee attorney who claims to be very liberal, and promises to “judge you when you use poor grammar.”  My kind of woman.

Not long ago, SFL posted an entry [UPDATE: The original post no longer exists] about a man who carried a gun into a grocery store without the proper permits, and apparently without the proper training.  The weapon fell out of his pocket, discharged, and the round struck an employee in the hip.  Southern Female Lawyer thinks this is a bad thing, and told us so.  This, of course, sparked a somewhat heated discussion with a Second Amendment advocate in Texas who calls himself Bob S. and runs a pro-gun blog called 3 Boxes of BS. Hilarity ensued. Read the rest of this entry »

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16 Comments