Some thoughts on rights

Background first.

The preamble to the Constitution very clearly establishes its goal:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Primarily, the framers were trying to put together something better than the federation of states that had been formed after the Revolution, i.e., that “more perfect union.” They built a strong central government with certain responsibilities that were of a federal nature, leaving other areas of more local responsibility to the separate states. They were also clearly establishing what would be a nation of laws, and the guiding principles of those laws were the ideas of justice, tranquility, the general welfare and liberty, although there isn’t much in the body of the Constitution specifically about any of those things. The document is mostly about how best to set up a government that would, implicitly, assure that they would be achieved. They can, nonetheless, stand as the nation’s guiding principles, much as the Declaration had stated that equality, life, liberty and the pursuit of one’s goals (Jefferson’s happiness, Locke’s property) were natural or divine inalienable rights, an idea that also stands as part of the nation’s principles. In short, the country is based on equality and liberty and achieving one’s personal goals, the idea that everyone can do whatever they want freely. There is only one inherent limitation to personal freedom, to wit, that one person’s freedom cannot impinge on another person’s freedom. Many laws exist for no other reason than to determine and adjudicate harms. The best expression of this limitation is in Mill’s On Liberty, which used to be canonical in LD. Nowadays it’s simply canonical in the education of any intelligent citizen. But even if you don’t read it, you get the drift.

The Constitution did not include any specific rights protections as originally proposed. The first ten amendments, the Bill of Rights, were added as a compromise for those who would not ratify the document otherwise. By virtue of their being a part of a legal document, the rights protected by the Bill of Rights, or for that matter any other amendment, are civil rights. That is, they are rights protected by the polity behind the document. So the Constitution does not offer an amendment for, say, the protection of liberty, which is a natural right, and also a pretty difficult right to pin down. It does offer a protection for freedom of the press, on the other hand, which is not a natural right but a right granted by the government, and thus a civil right.

So that’s all background. Here’s what I’m thinking about.

The rights protected by the Constitution do not get their worthiness of protection from the document, but from an inherent worthiness that was deemed valuable enough to warrant a specific mention. In other words, we don’t value the right of free speech because it is in the Constitution; we value the right of free speech so much that we explicitly gave it constitutional protection. The right is valuable, therefore we protect it.

Curiously, both Sept-Oct LD and Sept PF deal with civil rights with constitutional protection. The former questions whether due process should be given to non-citizens in certain cases, and the latter deals with whether certain abridgments of gun rights ought to be enacted at the federal level. While one can make a legal positivist argument that because something is in the Constitution, it is correct to do that constitutional thing on that basis alone, I would look instead to the merit of the thing itself. Again, I don’t value free speech because it is in the Constitution; I constitutionally protect free speech because I value it.

With due process, I find it almost inconceivable that a country like the US, so based on legal process and individual protections, would somehow differentiate classes of people for whom due process would apply. It is not my citizenship that bestows on me an inherent right to due process from the government: it is my natural right to life and liberty. The only limitation in the fifth amendment is “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” There is recognized, in other words, a difference between the law in peacetime and in wartime vis-à-vis the armed forces, and there is that something called “public danger.” This can be used to wrest information from terrorists who might be actively engaged in or aware of a plot, in other words. It’s Cheney’s rationale for water-boarding. But if a terrorist is not in fact causing public danger, then it doesn’t hold.

My question here is, do we honestly believe that the framers thought that due process, for all practical purposes the might and main of the processes of the law, applied willy nilly? That there was something entitled Americans to these rights but not Canadians? I wonder.

Note that I’m not proposing this as factual said-and-done, but an argument. I’d love to here a rebuttal.

As for the PF topic, I have a different take on the second amendment completely than I do on the fifth. Take away any of the militia aspects of it, and just look at it as the essential right to bear arms. Is this a right, like free speech, so valuable that it warrants constitutional protection? My answer is no, because I cannot for the life of me come up with any really good reason why owning guns is an inherent civil right worthy of such protection. The right to bear arms means the right to freely carry firearms around. It is not the right to hunt, for instance. Hunting is not a right, it’s a privilege granted by polities by all sorts of complicated licenses and seasons and whatnot; the guns are incidental to it, and could just as easily be controlled by all sorts of complicated licenses and seasons and whatnot. I’m fine with hunting, I’m just not fine with hunting as a warrant for freely carrying firearms around. Other than that, what is the argument that makes gun ownership so important in 2012? The British aren’t coming again, which means that my town isn’t throwing together a militia any time soon. As a matter of fact, no matter who comes, my owning a couple of rifles is pointless. Having guns because the bad guys might have guns is neither true (it just means more people get shot, if it comes to that) nor logically sound. The threat of my bearing guns isn’t strong enough to act as a deterrent to other gun bearers, so there’s no MAD argument where the outcome is, for lack of a better word, nuclear.

Guns do one thing: they shoot ammunition. They can shoot it at targets (lots of fun, and I’ve done it myself, but hardly so important that it needs constitutional protection, any more than playing checkers, which some people also find to be fun, is so important that it needs constitutional protection). They can shoot it at varmints or dinner. They can shoot it at people. At the point where it can be shot at people, doesn’t that bring into question the importance of those other places it can be shot?

So what I’m saying is that the right of due process is so important to the meaning of the American country that not only should it be constitutionally protected, but there should be no limits to its protection (except as already limited in the amendment itself, i.e., martial law). And the right to bear arms is so unimportant to the meaning of the American country that is simply does not warrant constitutional protection.

Does any of this suggest that I may be something of a liberal?