Tuesday, March 23, 2010

Rights Abdicated: The 2nd Amendment and an Appeal to Logic

In this essay I will explain how rights can be lost without being infringed. I will begin with a short exposition of Western political philosophy followed by the concept of rights in the American Republic. I will make a logical analysis of the second amendment to demonstrate the transience of rights by delegation.

In conclusion, I will show that in order to gain more material substance and convenience, the people will delegate their natural rights to a higher entity and therefore lose them.

Western and American Styles of Government

I recently compiled a partial list of notes and favorite passages from my various readings. As I worked on this project, I came across several interesting passages from my reading of Thomas Hobbes. Hobbes is fundamental to Western political philosophy—his social contract theory was taken up by John Locke and by every other Western political philosopher since then.

Hobbes wrote that, in his natural brutish condition, "every man has a Right to every thing; even to one anothers body. And therefore, as long as this naturall Right of every man to every thing endureth, there can be no security to any man[.]"(1) Hobbes claims that peace, the first fundamental law of nature, is only possible when "a man be willing, when others are so too... to lay down his right to all things[.]"(2)

From this voluntary abdication of rights arises the possibility of government, which is an entity authorized by the people to act in the name of the group (Hobbes thought that the ideal sovereign would be embodied in a single individual, such as a king). Any rights delegated to the government are no longer held by the people(3), unless specifically granted back to the people (in the form of privileges) by the government.

There are—according to Hobbes—certain rights that people are physically incapable of giving up of their own volition. These are inalienable rights and, for Hobbes, they are limited to life and liberty (in this context, liberty refers to freedom from bondage).(4)

The following aspects of Hobbes' philosophy will seem familiar to most Americans:

1) Rights originate in people and are natural
2) People authorize government, therefore government also originates in the people
3) Some rights can't be given up or delegated to the government except in the state of war

What distinguishes the American theory of government from that proposed by Thomas Hobbes? Hobbes' idea of Rights is based on materialism—what is physically possible(5)—and also in his view of humanity as essentially predatory and competitive(6)—perennially engaged in the pursuit of personal gain.

In contrast to this view, the American founding fathers had a more refined belief both in a general type of humanity that is basically good and of natural Rights that are fundamentally teleological. In simpler terms, the basic American view of humanity was that people are generally intelligent and can reason about cause and effect, ends and means, actions and consequences.

In the American system, the natural rights of people are considerably more constrained by affordances, effects, ends, and consequences. In the words of John Locke, "though this be a state of liberty, yet it is not a state of licence[.]"(7) Conversely, to gain more license, a people must risk becoming less free. This is why John Adams claimed that the American theory of government was suitable only for what he termed a "moral and religious" people; the type of people Hobbes believed in truly would not be capable of the burden and responsibility of self-governance according to the laws of nature.

Under the American Theory, People Retain Rights

Because of the differences between the Hobbesian and American views of the nature of humanity and the nature of rights, a very different result is effected also in the nature of government. Where Hobbes requires his depraved people who live in a dangerous world to grant all(8) of their alienable rights to the sovereign for the sake of peace, the founding fathers had their "moral and religious" people retaining all of their natural rights except for those specifically granted to the government.

Some members of an early American faction, known as the Anti-Federalists, were worried that many people might mistake the new federal government with the European Leviathan of Thomas' Hobbes political theory. Many individuals would still believe that the government is authorized by the people to assume all rights except for those specifically enumerated as remaining with the people in the reduced form of privileges.

This fear that the Anti-Federalists had is one of the main reasons for the existence in the American Theory of a "Bill of Rights" comprising the first ten amendments to the United States constitution. This document does enumerate several of the most evident of the natural rights retained by the people. Most important among the Bill of Rights amendments, however, are the ninth and tenth amendments which together clarify that there are many additional rights that are not spelled out and that nevertheless these rights are retained by the states or by the people by default. The language further implies that some or all of these rights belong to the same class of rights that are delegated to the federal government, that is, "alienable" rights. In order to govern themselves, Americans would need a "right to regulate rights" at a local level or even to delegate certain additional rights to the federal government through the amendment process.

Because of this flexibility, the United States Constitution has built into itself the capacity to form a Hobbesian-style government in which all rights are regulated—excepting those cases in which there may be questions about what precisely constitute "inalienable" rights beyond life and liberty.(9)

The Second Amendment is an Argument

The Second Amendment reads as follows:
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.
The Second Amendment is the only amendment in the Bill of Rights that is written ex modus ponendo ponens. This means that the amendment takes a certain argument form in which the antecedent must be true in order for the consequent imperative(10) to be guaranteed true also. All other amendments are simple imperatives.

As I stated earlier, natural rights are not arbitrary "licenses." There must first be a reason for the right, and that reason must exist naturally. The reason for the Second Amendment imperative, "the right of the people to keep and bear Arms, shall not be infringed," is found in the antecedent: "A well regulated Militia, being necessary to the security of a free State."

In general, the second amendment is a zeroth-order conditional proposition. If we examine the antecedent closely, we see that it consists of first-order predicates: There must exist some militia which is a well-regulated militia; there must exist a state which is a Free State; there must exist some function(11) of necessity which combines the the State and the militia in order to establish security.

If any of these conjunctive predicates is false, then the antecedent is necessarily false also; if the antecedent is false, then the argument—though still valid—is no longer a sound argument. The power to bear arms may still not be infringed even if the antecedent is false, however, it will no longer be the case that this is due to the nature of the right to bear arms.

Rights Are Abdicated, Not Infringed

The second amendment contains a number of implications. The principal implication was addressed above; another implication has to do with the purpose, constitution, and regulation of a militia.

There is a possibility that there is no well-regulated militia within the state.

It could be that the State is not a Free State.

Or maybe it isn't true that a militia is necessary to the security of a state; perhaps some other arrangement will equally suffice.

It is this last possibility that is most important to the discussion of the abdication of rights. Sometimes liberty is a burden and responsibility. In other instances, when liberty is transferred from the individual to the group, action can become more effective and efficient. In the face of increasing external threats, this transfer of rights may become a necessity for survival.

In the case of security, a people may elect to form an entity that is authorized to provide security in the place of their voluntary individual contributions. They may establish a professional police organization or hire a mercenary force or provide for a regular standing army that is never disbanded.

According to the political philosophy that I briefly explained at the beginning of this essay, in such a condition as this, it is not a matter of opinion that the right of the people is voluntarily given to the government and no longer retained. In the specific case where a well-regulated militia is superseded by the delegation of coercive power to a professional organization, if the people still enjoy a right to bear arms, it is only in the form of a privilege.

For reasons that Thomas Hobbes explained(12), it is not possible to posit the simultaneous delegation and retention of rights without doing mortal harm to the very idea of government.


Those who advocate the delegation of rights to efficient economic, military, medical, corporate, or educational organizations and also demand the continuation of these same rights at an individual level, are in error.

It is logically impossible both to promote a strong military and also claim Second Amendment rights, but the strong professional military is certainly more powerful than the well-regulated militia.

It is impossible to demand universal "health" care and also demand the right to be treated according to one's own individual preferences, but the universal health care system will be more efficient at treating more people in a way that is statistically predictable.

It is impossible to establish a system of universal schooling and still allow each pupil to pursue his or her own personal interests and methods of self-education, but the universal schooling system will guarantee that more people are qualified for employment in a mass-production capitalist economy.

It is impossible to create a mature and regulated money-based economy and yet expect also to have people who are self-sufficient and who own productive property, but the regulated money economy may provide a greater wealth to a greater number.

The whole point of a State in the Hobbesian model is not merely to subsist, but to use all of the rights at its disposal in precisely the way in which individual people may not use them: to establish itself as the dominant world power. This is only possible when people magnify their rights by giving them up through the mechanism of delegation. If a nation's ambition is to compete (the strongest military, the best health care, the smartest engineers, the biggest economy), then the people must relinquish their rights in order to remain in the race.

1. Hobbes, Thomas.(1651) Leviathan. Kindle Edition, developed electronically by MobileReference. Locations 1346-48

2. Ibid, locations 1352-54

3. Ibid, locations 1498, 1817-19, 2332-34 (for example)

4. Ibid, locations 1628-31

5. Ibid, location 178

6. Ibid, locations 1302-7

7. Locke, John.(1689) 2nd Treatise on Government, chapter 2.6. Kindle edition, from MobileReference. Locations 2629-30

8. Hobbes, location 1498

9. Hobbes, locations 1377-78

10. A proper imperative is not a logical sentence. The imperatives found in the Bill of Rights are legal imperatives and are therefore bivalent logical sentences. When a legal document states that a right "shall not be infringed," this is a very serious statement. Some might say that, regardless of whether or not people have such a right under nature, or whether or not the argument supporting the right is sound or even valid, if the legal imperative exists (typically identified by the word "shall"), then it will always evaluate as "True." In other words, the Second Amendment can (and presently does) represent an unsound argument, but the right to keep and bear arms remains an imperative. The implication is only that the Bill of Rights is weakened and made unsound. This is an unfortunate side-effect of enumerating retained rights: "you can have your cake and eat it too." The reality is that the second amendment has become a legal fiction since nature in fact abhors a contradiction.

11. Using the formal QL language, I had some question as to whether or not the security function could or should be written as a second-order predicate function. I refrained from including any formal language in this essay for fear of being too obtuse and thus hindering the argument. There are few who are familiar with formal languages. The main point of the logical exercise is to demonstrate that the argument is not subject to agreement or disagreement. Bivalent language is either true or false.

12. Delegation implies that a power is an atomic entity. If I delegate all rights to my work to a corporation under the "Work for Hire" rule, then it would be a conflict of interest for me also to retain my right and continue to use my work for my own personal gain in direct competition with the corporation. The master who delegates a power to his servant and then retains the power unto himself acts in bad faith and undermines the power of the servant.


David W. Cooney said...
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David W. Cooney said...
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David W. Cooney said...
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Peter McCombs said...

Note: I had upgraded David's previous three (now deleted) comments to an article so that we could present longer arguments. The following article contains the content of those posts.