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