Common Misconceptions About Rights
February 17, 2016 Leave a comment
The debate about gun rights sparked by President Obama’s recent executive actions and his town hall meeting of January 7, 2016, has brought to light several popular misconceptions, of which the following are some of the more egregious.
Misconception #1: Only United States citizens have the right to keep and bear arms, and then only within the borders of the United States.
Answer: A right is something everyone has by virtue of their humanity. Rights derive from the“Laws of Nature and of Nature’s God,” as stated in the Declaration of Independence, and predate all governments as the U.S. Supreme Court affirmed in District of Columbia v. Heller (June 2008). The Second Amendment uses the term “people” not “citizens” to remind us of the universal nature of this right. The fact that some governments do not honor this or other rights is immaterial to their possession.
Misconception #2: Governments may alter or abolish a right.
Answer: Rights are “unalienable” (Declaration of Independence), which means they cannot be taken or even given away. They are not derived from government, so they cannot be taken away by government. All anyone can do is punish someone for exercising a right, or impede its exercise by force or persuasion. Nevertheless, individuals still have the right.
Misconception #3: The right to keep and bear arms derives from the Second Amendment to the U.S. Constitution.
Answer: The Second Amendment does not grant a right, but recognizes the natural, preexisting right that everyone possesses to arm themselves for hunting, sport, and self-defense. The lack of a Second Amendment would not affect the right to keep and bear arms one iota. The Supreme Court held in United States v. Cruikshank, 92 U.S. 542 (1876), that the right “of bearing arms for a lawful purpose” is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
Misconception #4: Mandatory background checks and filling out government forms to purchase or transfer firearms are not infringements on the right to keep and bear arms.
Answer: Acquiring and disposing of lawfully gained property is a basic natural right. Any impediment is an infringement, and both of the above are impediments. They set the dangerous legal precedent that government permission is needed to buy or sell private property with a fee determined by that same government. If government has the authority to force individuals to obtain its permission at some expense to buy or sell firearms, then it can do so for anything else at its whim. Not only does this violate property rights and the right to contract for any legal purpose, but it also makes a mockery of the concept of a limited government.
Misconception #5: Government may restrict rights for the common good. After all, the right to free speech is limited because you cannot yell “Fire!” in a crowded theater.
Answer: The only times anyone may restrict a right is when the person restricted is incapable of safely exercising it as in the case of an unsupervised child or mentally incompetent person, has abused the right, or infringes on the right of another. A person yelling “Fire!” falsely in a crowded theater has abused the right of private ownership of property and may be punished for doing so. Similarly, a person who abuses a weapon may be punished for doing so. However, the abuser’s actions should not be the basis for restricting the right of non-abusers. Government may forbid possession or use in certain sensitive places under its control, or where it would present a danger to others such as shooting within the confines of a crowded city. Individuals may also restrict the possession of weapons on their private property.
Misconception #6: The government is only obligated to protect Constitutional rights.
Answer: There is no such thing as Constitutional rights. There are rights enumerated within that document. But the 9th Amendment to the U.S. Constitution states that “The enumeration of the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” In addition, the Declaration of Independence informs us that the purpose of government is to secure the rights of the people. This concept of only recognizing and protecting enumerated rights is a fallacy created by judges and politicians to justify denying or disparaging others retained by the people, and should not be tolerated.
Misconception #7: The Founders never envisioned the destructiveness of modern weapons which are too dangerous for private individuals to own.
Answer: Actually, they did, hence the general term “arms” is used in the Second Amendment encompassing whatever is prevalent in its day. As St. George Tucker, a militia officer during the Revolution, legal scholar, and Federal Court judge appointed by James Madison wrote in defense of the wording of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree.” Tucker elaborated that the reason for the broad wording was because, “In most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Trench Coxe, Pennsylvania delegate to the earlier Annapolis convention, ally of James Madison and Alexander Hamilton, who served in the Washington, Adams, Jefferson, and Madison administrations, wrote that, “Swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or [federal] constitution hath given away that important right? . . . The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.”
Misconception #8: We may only carry weapons concealed or open with government permission.
Answer: The Second Amendment reminds us that we have a right to keep and bear arms. Bear means “to carry or to wear.” The amendment further states that this right may not be infringed, which means government may not legislate against even the edges or fringes of the right. Thus, we don’t need government permission to carry our weapons in any manner we choose, except as noted in the answer to Misconception #5.
NOTE: This post was originally published on 01-21-16 at Explore Freedom by the Future of Freedom Foundation.
Benedict LaRosa is a historian and writer with undergraduate and graduate degrees in history from the U.S. Air Force Academy and Duke University, respectively.