Faithful Politics

Being faithful with our politics, not political with our faith.

The Nature of Rights and the Second Amendment (Part 1)

20755360_BG1Gun control is a major debate in our country right now due to the recent Sandy Hook Elementary School shooting and the subsequent push by legislators at both the state and federal level to implement more restrictive gun control measures.  One aspect of this debate focuses on the Second Amendment, its original intent and the scope of the rights it protects.  Many people today believe that a citizen’s right to gun ownership lives or dies with the Second Amendment; if upheld we may bear arms, but if it is struck down or its meaning is twisted, then we lose that right.  Is this true?

My contention in this article is twofold: first, that many parts of the Bill of Rights – not just the Second Amendment – are biblically and theologically grounded in natural law; and second, because of this the Bill of Rights is actually superfluous, unnecessary, and even dangerous for our Constitution, human liberty, and a free society.  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 harm or 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 obtain through voluntary contract.  Thus, when you are arrested and the police officer explains your Miranda rights (that you have a right to remain silent and 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.

So 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 with intrinsic worth 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, and do not steal.  Some of the prohibitions in the Decalogue are moral or spiritual in nature, such as idolatry, lying, or coveting.  But the three mentioned above presume the preexistence of a negative right: the right to life, the right to sexual fidelity in marriage (which obtains through the marriage covenant), and the right to property.  With ample time, one could do a full-length Bible study tracing positive and negative rights and natural law throughout Scripture.

To apply all of this to the Second 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 Second Amendment is not actually granting us rights that wouldn’t otherwise exist; instead it is naming a nature right that already exists and codifying it as national law in the Constitution.  Those who insist that we wouldn’t have the right to bear arms without the Second 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.  This is ridiculous and shows the error of confusing positive and negative rights.

[In Part 2 we will look at the structure of the Bill of Rights to determine why it is not only unnecessary, but even dangerous to a free society].

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4 Comments

  1. Good thoughts, yet it seems to me that the 2nd amendment exists because it was somewhat obvious to the founders that this was an area that would be challenged. There are lots of things that we do not have the right to own no matter how much money we have. Nukes come to mind. Though, I can see how even nukes may well still fit the argument made by the founders. They really are an invention that should have never been.

    Have you seen “The Gods Must Be Crazy”? That darn coke bottle is another invention that should have never been. ;-) Neither negative nor positive rights have any meaning at all – even when they’re written – if nobody has the courage to defend those rights. We live in a society that is far too busy demanding the best prime-time TV programming to care much about the things that really matter.

    • Thanks for the comment Ryan.

      Yes, it can and has been argued that the Bill of Rights was written to protect essential human rights that were most vulnerable to being denied. In part 2 next week I will address that issue which necessarily involves the nature of the Constitution itself as a document of enumerated powers. You are also right that there is a limit to what we should be allowed to purchase due to prudence and safety issues, like nuclear/biological weapons and the like which are too potent to be handled by the casual public. Yet these are few and far between. I bet you didn’t know that it is entirely legal to buy a fully-functional tank as a personal possession (http://online.wsj.com/article/SB10001424127887324432004578302480951570270.html). These are far more dangerous than firearms, but no one seems to be concerned about them and they don’t threaten society. If it could be demonstrated that firearms posed an imminent threat to the existence of society (like nukes) then they should be prohibited, but this isn’t true.

      I haven’t seen “The God’s Must be Crazy,” but it sounds like I should. I absolutely agree that negative/positive rights should be defended, but the point I was making is that the former are divinely based while the second are socially constructed and thus defense of them takes different forms. If positive rights only come into existence through social contract, then they can be dissolve, if merited, by changing or scraping the law; if negative rights exist prior to social contract then no amount of legislation and bullying can revoke them (in absolute terms, perhaps in practice yes) since such rights are not dependent upon law.

      Ben

  2. Hi Ben, I appreciate your desire to contribute to this debate and I am glad to see you are writing from a place of conviction. However, there are several points unaddressed to which I hope you might respond.

    1) You’ve assumed that Natural Law can and should be read as the ethical lens through which to read all of the ethics of the Biblical narrative. Sure, there are some who would might agree with you today (Robert Adams?), but this a rather contentious point, and theologians such as Hauerwas, Niebuhr, et al, would pretty much laugh this assumption off the courts. In the Genesis narrative, God does not call “upon Cain to abide by the negative duty that was placed upon him not to kill his brother Abel.” God punishes Cain after he kills Abel. The text does not say anything about duties or rights, but leaves the precise meta-ethical reasoning for Cain’s act counting as sin ambiguous. God’s reasoning here could be more Utilitarian or Kantian or Aristotelian or Augustinian or really anything else that us mortals haven’t thought up yet. I’m certainly not an inerrantist myself, nor am I a believer in the ability of the Historical-Grammatical Method to give us the text’s ‘authorial-intended meaning,’ but you’ve pretty much broken every exegetical rule on this one. As I’m sure you know, there’s no mention of Natural Law or Human Rights in the Bible, so any argument that intends to interpret Scripture through such a lens will require a little more justification that you have provided here (where, it appears, you just assume that this lens is valid in all cases).

    2) More importantly, you’ve also assumed that a firearm is no different from any other piece of property, which is exactly what this debate is about. To say that another way, you’ve assumed from the beginning, and thereby not even argued for, the very point in contention: is a gun the same as a burrito, or a chair, or a loaf of bread? The question our country is debating is whether or not a gun counts as the same *kind* of property as these things. Are you saying that these ‘negative rights’ guarantee, by the command of God, that human beings are ethically prohibited from preventing other human beings from purchasing any type of material good or service? I think not. I think you would say that there are other things at play here, other factors to consider like the potential damages or harms that could come about from the circulation of these things, eg in the case of Heroine, you probably want to argue that this is not the same kind of property as burritos or gym memberships. Property is not a flat category: there are laws regulating the purchase of everything from houses to motorcycles to gasoline. So goes the arguments with guns. We don’t get anywhere by saying “Its property, therefore I have the negative duty to avoid prohibiting its accumulation.” The discussion is about what kind of property guns are, and what kind of property we believe ourselves to have the freedom to possess (by justification of Natural Law or otherwise). Different types of property have the potential for different types of harm, all of which should be considered when talking about what rights anybody, government included, has to prohibit your purchasing them. Guns and burritos are different types of property: I plan to buy my children burritos and leave them unattended if I have to take a phone call. It follows from your argument that I ought to treat guns exactly the same, just like any other type of property. If we have no resources with which to distinguish types of property then according to your formulation of natural law, then no one has the right to obstruct my obtaining nuclear weapons, cocaine, baby formula, tanks, pornography, etc.

    Best,
    Jonathan Povilonis

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