Sunday, April 11, 2010

Summary And Concluding Arguments for "Rights Abdicated", by Peter McCombs and David W. Cooney

This is the concluding article in the series on Rights Abdicated, which consists of the following previous articles:

Rights Abdicated: The 2nd Amendment and an Appeal to Logic
Rebuttal to "Rights Abdicated", by David W. Cooney
In Defense of "Rights Abdicated"
Response to "In Defense of 'Rights Abdicated'", by David W. Cooney

I am very pleased to have had thoughtful argument from David on this topic. For those of you who are interested in other work that David has written, please see his web site, Practical Distributism. David approaches a number of current social and economic topics from the standpoint of Distributism.

It seems to me that David adds more dimension to this argument than opposition. However, that is for the reader to decide. For myself, I have begun to think with more attention about the difference between rights and powers as well as the specific meaning of "a right".

In this article, I will present the summary of my arguments for "Rights Abdicated" as well as some final remarks. I will then include David's summary and his closing remarks. Although this concludes the debate, I welcome additional commentary on the subject from any side. It is often through argument that I refine my thoughts and ideas.

* * *

In my argument entitled, "Rights Abdicated: The 2nd Amendment and an Appeal to Logic", I made the following claims:
  1. That some rights are transferable, or alienable.
  2. That alienable rights are important in self-government.
  3. That once a right has been vested in another party, it can no longer be exercised except through the one authorized.
  4. That the Second Amendment describes such an alienable right as demonstrated by the logical analysis of the amendment.
  5. That we ought to carefully consider the ways in which we allow our rights to be delegated (or abdicated) to others. 
In defense of my original argument, I introduced some additional points:
  1. That the American system makes use of the Social Contract.
  2. That all rights to means are alienable rights.
  3. That rights under any contract are governed by positive law.
  4. That when contracted rights are retained by the people, it is only through an unjust act of bad faith or through provisions in the contract itself that regulate the portion of rights granted and retained based on specific contexts (casuistry).
  5. That some rights are obligations that we will choose to give up for the sake of freedom in other things.
It is not important to my argument whether or not there are other reasons for the second amendment right to bear arms other than the reason provided by the authors of the Constitution. For a natural (or inalienable) right, any reason given for the right must be completely sound. However, since the one reason given for the right to bear arms is clearly no longer relevant to our standing relative to the federal government, modus ponens is sufficient to show beyond doubt that the right to bear arms is an alienable right to a means and not a natural inalienable right to an end. I do believe, however, that the right to bear arms is an extension of the natural right to protection.

To the extent that we delegate our means of protection to armies, mercenaries, and to police forces, our right to bear arms is proportionally reduced and regulated. As an example of this, I point to the fact that we must now obtain permits in order to conceal and carry a firearm. We are also prohibited from obtaining some kinds of specialized arms, such as nuclear or biological weapons. The economy of protection has also made other specialized weapons quite beyond the reach of private individuals. We may not act as or impersonate a police officer or a soldier because we lack the proper authority to do so. We have given that authority to others.

These regulations are all part of the social contract we have entered into when we authorized others to act on our behalf. The capability to defend ourselves against the very organizations that we authorize for our protection is greatly reduced. We must therefore have faith in them always to act in our best interest. Although we may still bear arms, the right we now enjoy is governed by positive law and has become a privilege. We believe that we have better served our inalienable right to protection by vesting others with the right to defend us.

I further reiterate the nature of the social contract. While I acknowledge criticisms of the social contract that question how (or if) it may originate and what its limits are, these questions are not important to the argument. What is important is that only alienable rights are susceptible to the social contract and that these rights are no longer exercised in the context conceived by their natural reasons.

I consider the large-scale abdication of alienable rights to be a national tragedy. Such a course leaves many individuals and communities at the mercy of a "majority" with whom they do not agree. This damages and destroys self-government wherever these rights are more properly delegated at a local level.

I do not limit my argument to the right to bear arms. For example, I claim a right to raise my own children. I teach them at home and do not send them to school. A natural right is one that does not require special permission for its use, yet I must obtain permission annually if I want to keep my family together at home. If I do not get this permission, a man with a gun is authorized to visit my house and enforce compliance. I could be forced to adhere to standards that are not my own or risk losing my kids.

The truth is, I no longer have a right to my own children, but a regulated privilege. This is because the right to children is an obligation that we, as a majority, ceased to desire in favor of ever increasing options in the area of ease and prosperity. In order to gain the freedom of careers and of financial gain, the State has been granted much of the power and authority once held exclusively by parents. Those few of us who still desire to maintain our exclusive rights must struggle against a rising tide that threatens to sweep us away.

There are probably many other examples of Rights Abdicated. Some of us will refuse to acknowledge our own hand in this tragedy. Others will remain in delusion, as those who trade raw diamonds for pretty glass trinkets. Such will argue that they never lost their rights, only improved them.

It seems to me that, like Esau who sold his birthright for a "mess of pottage" and then blamed others for his loss, we prefer to resent a government perceived as oppressive rather than taking steps to make fundamental changes to our lives and to our culture in order to reclaim what we have given away.

* * *

David's summary and closing remarks are as follows:

The summary of my position in regard to our current discussion is divided into two areas.  The first area is that of the Constitution in general and the Second Amendment in particular.  The second area is the scope to which the application of the abdication of rights involved in a social or other contract may logically be applied.

The Constitution

The Constitution and the first ten amendments to it must be viewed according to the intent of the authors in order to understand the provisions and how they were intended to be applied.  The purpose of the Constitution was to define and limit the scope of the revised federal government they were proposing to the American people.  The federal government was only to have those powers explicitly and clearly given to it in the Constitution. In fact, they were so adamant about this, that they did not want to include the Bill of Rights because they feared that, if they started listing any specific rights retained by the states and the people, it would end up being interpreted exactly how it is now being interpreted; that the rights and limitations of the states and people are also defined by the Constitution.  

This is how you are presenting the Second Amendment; as though the inclusion of a reason for not disarming the public means that, if the government claims to eliminate the reason, the public no longer has the right not to be disarmed.  The Constitution was never intended to limit the states and people to any extent beyond those powers absolutely needed to be given to the federal government to perform the explicit and limited powers granted to it.  Any and all other rights and powers that can be said to exist remain with the states and the people, so it is not only not necessary to list them, but it is unwise to even start listing them because of the false interpretation that such a list would cause.

A perfect example of this is found in the Federalist and Anti-Federalist papers.  I don't have my copies handy, but when they debated Section 8 of Article 1, the Anti-Federalists argued that the term "general welfare" was too vague and could be taken to mean anything.  The Federalists pointed out that the the Constitution itself defines exactly what is meant by general welfare in that same section.  All of Section 8 is one sentence.  It starts out by stating the general purpose of the powers of Congress, and then, using no division other than semi-colons, lists those specific powers which Congress is allowed to employ to fulfill those purposes.  At the end of that long sentence, Congress is given the power to make laws to fulfill the limited powers of the federal government, but is explicitly limited to only those laws which are both "necessary and proper" to do so.

In regard to the power of the federal government to raise an army, taking into account the Second Amendment, the federal government is not empowered to disarm the public because doing so is not necessary to raise an army.  History is clear that it is entirely possible to have an army and an armed public, therefore there is no necessity to disarm the public in order to fulfill the ability of the federal government to raise an army.  If it is not necessary, the federal government has no authority to make such a law because it is specifically only given the power to pass those laws which are both necessary and proper.

The view of the Federalists, the Anti-Federalists, and of the people in general is that government in general cannot be trusted, and that a remote government (and they all viewed the federal government as a remote government) could be trusted even less.  This is absolutely clear from their writings.  They hoped the states and the people would jealously guard against any attempt by the federal government to increase its centralized power by binding it with the "chains" provided in the Constitution.  In the end, the Federalists only agreed to include the Bill of Rights because they realized that it was the only way to get the new Constitution ratified.

The Abdication of Rights, With a Particular Consideration of the Second Amendment

I do not deny that one can abdicate or otherwise forgo rights.  However, the argument you present is that abdicating rights can actually separate them from you.  The authors of the Constitution, however, believed that certain rights were inalienable; therefore, even if you abdicated them in any way, they still remained with you and you remained free to exercise them at any time you felt the need.  If you remain free to claim and exercise your inalienable rights, then you logically must also retain the right to access to the means necessary to do so.

In the case of claiming your right to self-defense, you have the right to secure those means necessary to succeed in claiming them.  This right, like the inalienable right itself, remains with you at all times as a logical necessity.  Attempts to disarm the public deprive them of the means necessary to defend themselves against armed aggressors.  It is no use to say that, once you are attacked, you "regain" this right.  Once you are attacked it is too late.  If you are standing on the street and some thug threatens you with a gun, will he wait while you go to the gun store to buy a weapon for your own defense?  Will he wait while you call the police to come and defend you on your behalf?  That is nonsense.  

The right to self defense necessarily includes the right to prepare for that defense ahead of time.  Because self-defense is an inalienable right, the corresponding right to arm oneself is also inalienable. Not only that, but the fact that the purpose of this right is self-defense, you have the right to secure whatever weapons you feel you may need to defend yourself.  It is useless, in a practical sense, to defend yourself with a sword if your aggressor is armed with a gun.

This can easily be seen in how the Second Amendment was viewed prior to the very recent arguments that the government somehow now possesses the right to disarm the public.  The government had as standing army long before these arguments were being made.  Likewise, communities had established law enforcement long before these arguments were being made.  Was the establishment of these viewed as the elimination of the right for the general public to arm themselves with whatever weapons were available?  No.  In the mid 19th century, you could not only order all manner of hand-held guns, but even cannon, through the Sears & Roebuck Catalog.  They would ship them directly to your house.  

The right to do this was assumed, therefore the social contracts establishing the police and armies did not constitute an abdication of the right to arm yourself, because they were never intended to defend everyone, everywhere, and at all times. Those social contracts were made with the understanding that there will remain times when the established law enforcement won't be available for any number of legitimate reasons, and, therefore, the people would need to be able to act in order to defend themselves, or even others when the need arose.  In order to do this, they must be allowed to arm themselves in preparation for it.  The government was not assumed to posses the right to restrict, or even track through registration, the exercise of this right.  In fact the opposite is clearly the case.  The government is assumed NOT to posses such rights because restrictions would be a violation of the inalienable right of the people and tracking is not authorized by the constitutions that limit the powers of government.

1 comment:

Peter McCombs said...

Alan Avans posted an interesting link that touches on some points we have discussed in this argument.

The article is about the Tea Party Movement in Oklahoma whose idea it is to start up an old-fashioned citizen militia.

Some excerpts that I find interesting are these:

State Sen. Randy Brogdon, R-Owasso, a Republican candidate for governor who has appealed for tea party support, said supporters of a state militia have talked to him, and that he believes the citizen unit would be authorized under the Second Amendment to the Constitution.

The founding fathers "were not referring to a turkey shoot or a quail hunt. They really weren't even talking about us having the ability to protect ourselves against each other," Brogdon said. "The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government."


...

State militias clearly are constitutionally authorized, but have not been used in recent times, said Glenn Reynolds, a law professor at the University of Tennessee and an expert on the Second Amendment. "Whether someone should get a militia to go toe-to-toe with the federal government ... now, that strikes me as kind of silly," he said.

It is also interesting to read some of the reactions to this idea in the reader comments.