Does the Danger of a Crisis Overrule Constitutional Rights?
The argument has been raised in recent years that during a serious crisis a government has the authority to violate human rights; the rights described in the US Constitution. Freedom of movement, freedom to gather, to peacefully protest, to write, publish and speak freely; these do not belong to any government and no government has authority to grant or deprive anyone of the rights they were born with.
The argument, which you may have recently encountered, that the right to bear arms can be limited (I would say violated) by the government because of this crisis seems to be ultimately based on the opinion of Justice Scalia delivered in the case of the District of Columbia v. Heller (No. 07-290) which reads, in part;
“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. _ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”
As one can see, Scalia proclaims that not only the does the Second Amendment not enshrine the (already pre-existing) right to bear arms, but that the First Amendment does not protect the right to free speech. Surely it need not be explained that no one, even Supreme Court Justices, has the privilege to decide what rights people do or do not have. The Bill of Rights do not prescribe or grant anything. It describes the inalienable rights all people have no matter what anyone might say.
In the USA, judges have made decisions and lawmakers have passed laws that have later been recognized as being unconstitutional. That is how the system of law works in the USA. As the Encyclopedia Britannica states, “The prime example is the United States, and the classic statement of the doctrine is the Supreme Court’s decision in Marbury v. Madison (1803)”. To quote from the judges’ decision in that case;
“The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.”
The US Government, the Declaration of Independence, the Constitution and the Bill of Rights, the Supreme Court, Congress and so on; these do not grant rights. they never had the authority to alter our already existing and inalienable rights. No one has granted anyone rights. The US Constitution describes our rights and binds the government from violating these rights.
Some might say that rights are “God given”. Whether or not God exists and gives anyone rights, ultimately, rights are protected by the tendency of people to fight back when their own rights or the rights of others are violated. We tend to stand up for the innocent. This is not a “might-makes-right” argument. It is a “We defend what is right with might” argument.
What makes some people think that inalienable rights (that the government does not have the valid authority to grant or to violate) can be rightfully/legally violated in attempt (sincere or feigned) to save people from danger (be it very serious or not)?
No law passed by the legislative branch of the government, no decision by the judicial branch of the government can alter the rights that the Constitution describes and prevents the government from violating.
Any assertion that the government has the right to violate our rights, no matter how it is worded, no matter how it attempts to rationalize or justify it, is empty, baseless and presumptuous.
If such an assertion has any power, it is in it’s illusion of validity which is maintained when this illusion fools enough people so that it is not questioned, examined and then toppled, with arms if necessary.
Having written the above, I opened Thomas Paine’s Rights of Man to where he writes that we have natural rights (what has been called inalienable rights) and civil rights and that the later (which originates from the former) is the benefit one gains from partaking in society. I will add to this (and I think Paine here implies) that any government that does not uphold this bargain, that does not safeguard one’s civil rights is illegitimate and has no justification for existence. As he writes elsewhere in Rights of Man, a main reason for partaking in society is so that a lack of any individual’s power to maintain their rights does not deprive them of those rights, for society exists in part to enforce the rights of all individuals;
“Man did not enter into society to become worse than he was before, not to have fewer rights than he had before, but to have those rights better secured. His natural rights are the foundation of his civil rights.”
Humans have what we call Natural Rights. These are the rights that one has before society and government. One has the right to live in peace in the wilderness, for example, to hunt and gatherfood, to bear arms, to speak as one wills, and so on.
By entering into society or living in the jurisdiction of a government, one justifiably expects to have what we call Civil Rights in addition to the Natural Rights that one was born with.
As soon as society or government fails to uphold these Civil Rights and/or seeks to limit one’s Natural Rights, that society/government is invalid as it has violated the agreement, no longer has the right to exist and should be destroyed.
These Natural and Civil Rights are to be equal for each individual. If they are not equal, they are not rights but privileges which are an affront to equal treatment by the law. So, your “right” to be safe from my exercise of my freedom of movement, for example, would actually be an unjustifiable privilege, not a right.
An other way to put it could be that “Natural Rights” are the rights that we each want to preserve for ourselves (and others) and which we justifiably expect and demand that any government that extracts taxes from us protect as “Civil Rights”.
Thanks for reading.
~ Justin Trouble
Liberty my right ∴ Truth my sword
Laughter my shield ∴ Knowledge my steed
Love my solace ∴ Honor my reward