The right to…

A lot of people are a bit confused on what “the right to [something]” actually means.  They think having a right to something means that someone else must provide it for them.

Sorry, but that’s not the way it works.

If you look at the Bill of Rights, you’ll notice a couple of things:  One is that many of the rights are restrictions on government:  “the government is not allowed to do X”.  Another is that, with a couple of specific exceptions, the right to something is the right to do something, not the right to get something.

Let’s break down some examples.

The First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is two cases in one.  It’s a restriction on government–“Congress shall make no law”–but is also a right to do:  practice religion, speak, write/print (press), assemble peaceably, and petition Government for redress of grievances. (This latter doesn’t just mean circulating “petitions” for signatures but more generally the right to ask government to fix what you believe it’s doing wrong.)  It does not mean that the government has to provide you with a printing press, a loudhailer so your speech can reach farther, or a meeting hall for your assembly or religious practice.  It only allows you to obtain those things.  If you want to speak from your soapbox, then bring your own soapbox.  Neither the government, nor anyone else, is required to provide you with one.

The Second:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

First, yes, I know.  People try to make much about that introductory bit about “A well-regulated Militia.  I deal with that elsewhere:  Notably here and here and here.  So, we’ll leave that.  Look at what’s protected.  The right to keep and the right to bear.  To own and to carry.  Nowhere does it say “the right to have the government provide for you.”  You want it?  You get it yourself.

The Third:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Restriction on government again.  They can’t require you to let soldiers live in your house, except in a time of war “in a manner to be prescribed by law” which means it can’t be the arbitrary decision of some commander.

And so on.

It’s not until we get to the Sixth where you have a right to something that the government can be obligated to provide.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

In this case the government is required to provide a trial, an impartial jury, and the ability to compel witnesses.  The right to have the Assistance of Counsel for defense has been further defined as a right to an attorney and, if unable to afford one, the government has to provide one.

But note something here.  In this case it is the government that is threatening you.  It is the government action that creates a need to ensure that your rights are not violated, that you are not unjustly punished, that “cruel and unusual punishment” (which I have always taken as inappropriately harsh for the crime while still allowing harsh punishments for severe crimes) is not inflicted and so on.  It’s not something you have just decided you want.  It is not something that some situation in your own life instills a “need”. You are in the situation of needing these things because the government has put you in that position.  If you did not have these things then government could simply make anyone they wished disappear.  So the government must ensure you have the tools available to protect yourself, inadequately perhaps given the way things have gone over time but at all, from government itself.

That’s why the things here must be provided by government, because government itself is the threat.

The seventh extends the right to trial by jury in federal civil suits exceeding a value of $20 (which was a lot more when the Constitution was written than it is now).  This is an extension of that sixth Amendment right, and much of the same argument holds since the government is involved by settling the disputes by law.  but note that only the right of a jury to settle the dispute is all that is promised here.  The other elements of the sixth are absent.  The seventh also prohibits re-trying a case that has been settled by a jury except except according to the rules of the common law.

The eighth prohibits government from inflicting cruel and unusual punishments.  The ninth says that this is not an exhaustive list of rights.  And the tenth says if the Constitution doesn’t grant a power to the Federal government or prohibit it to the States, then it belongs to the States or to the people.

So there is only one instance–the right of trial by jury and the things attached to it–where a right is something that has to be provided for you.  In no other is that the case.

Thus, when someone says “I have a right to this.” The answer could well be “yes, you do.” If it is not prohibited in a manner consistent with the Constitution of the United States and that of the State in which they are present, then, they have a right to it.  But that right is not an obligation for anyone else to provide it for them.  They have the right to seek it, to obtain it in whatever legal manner they may do so (stealing it or stealing money to buy it are right out).

They do not, however, get to force others to provide it.

 

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22 thoughts on “The right to…”

  1. Even that right to a trial only goes so far. It’s only about actual crimes. Guantanamo’s critics often pretend they can squeeze wartime detention into that, while the Founders clearly didn’t intend to outlaw it.

    They were generally pretty careful with their words.

    1. That’s partially correct, but not in the way you think.

      One of the key facets of our military that many people miss is that soldiers, by act of enlisting, voluntarily sacrifice many of the rights given them by the Constitution. The most prominent example is freedom of speech; the military Code of Conduct, especially for commissioned officers, has a large list of things you cannot say. This creates a sticky legal landscape that civilian law cannot adequately cover, especially when you take into account that the purpose of the military is to slaughter people and break things in a fashion that would be a horrifically intolerable violation of civilian law.

      Thus, there is a completely separate legal landscape of military law designed to deal with this, and generally military law takes precedence over civilian law when we are discussing active duty servicemen and enemy combatants. The error that these folks make when they start spewing their nonsense about Guantanamo is failing and/or refusing to realize that Guantanamo is a strictly military installation, and thus managed under military (instead of civilian) law. If you think that something in Guantanamo is intolerable and needs to be changed, trying to claim that civilian law has any jurisdiction there is going to (rightly, IMO) get you laughed out of the room.

  2. One common counter to RKBA arguments is, “I have the right to live in a safe, gun-free world!”, to which I reply, “Yes, you absolutely do. When you find one, by all means go live there. You just don’t have the right to require that I change my behavior to accommodate you.”

    1. A common one is a right to “feel safe” (and someone making that stupid argument was the immediate prompter of this post). One no more has the right to “feel safe” than they have the right to “be happy.” They have the right to pursue happiness by their own actions. And they have the right to seek safety by their own actions. Neither of those impose required actions on others, not to give them what they think will make them happy not others to give up their own security (such as being armed against potential threats) so they will “feel safe.”

  3. This idea of it must be provided has been embedded very deeply into our culture since the 60’s. Like the guy said “If the government can give it to you, then the government can take it away.” There is a reason they are called “inalienable rights”.

  4. I agree with you on all points. I do want to mention the version of the 2nd Amendment that you used is very probably incorrect.
    I have long been concerned about the various punctuations I have seen of the amendment and did a little research. The version you cited is the one congress submitted, along with the others, to the states for ratification. The version certified by the Secretary of State is different. That version has only a single comma, positioned after the “free state” and before “the right of the people.” See Wikipedia https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
    (It’s a small line immediately below the reproduction of the handwritten Congressional version.)
    OK. Now, which of the versions is THE legal version? For a legal interpretation, I asked Eugene Volokh (whom you are most probably familiar with) the following question: “If the two forms differ, which is held to be binding; the form of an amendment as passed by Congress and sent to the states for ratification or the form of that amendment actually ratified by the states and certified by the Secretary of State?”
    Professor Volokh’s kind response was ” I think the Secretary of State’s certification is final, see Leser v. Garnett (1922), https://scholar.google.com/scholar_case?case=17005967012106238241 .
    Eugene
    I encourage you to check out the statements I have cited here. As a writer, you know the importance of punctuation is to understanding the written word. As Lynne Truss describes in the appropriately titled “Eats, Shoots and Leaves”, when describing the habits of a panda, there is a big difference between “Eats, shoots and leaves” and “Eats shoots and leaves.”
    There is an equal magnitude of difference between the multi-comma version of the 2nd Amendment and the simple single-comma version ratified by Secretary of State Thomas Jefferson.

    1. I’ve seen people pointing to the comma arrangement and going “Aha! That makes it mean…” Truthefully, people make entirely too much fuss over the comma placement in the 2nd. A lot of what we consider hard and fast rules today are of more recent vintage than people think. In the past things like spelling and punctuation were more…flexible. The difference was just not as meaningful as people make it out to be today.

      Consider the same grammatical structure as the 2nd but with different nouns and adjectives:
      Sweetened condensed milk, being necessary for a good key lime pie, the right of the farmers, to keep and raise cows, shall not be infringed.

      There is simply no way to punctuate that by any arrangement of commas, that indicates that sweetened condensed milk is what has the right to keep and raise cows. That grammatical structure does not lend itself to that meaning. And putting “well-regulated militia”, “free state”, “the people”, etc. in the appropriate places does not change the structure.

      I dispose of most of the arguments for that interpretation of the 2nd in the links I give in the post.

  5. Should it be ‘ensure’ instead of ‘insure’?
    (I’m not trying to be an arse, I’m curious if I know the usage incorrectly. Legal stuff uses words in weird ways.)

  6. “The government, nor anyone else, is required to provide you with one.”

    You’re missing a “not”, I think.

    Not trying to be a jerk; just trying for clarity

  7. For an awful lot of people it’s a really quick trip from ‘I want’ to ‘it’s my right’ – for many thee’re right next door

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