Tuesday, February 13, 2007

Gun Control II: Constitutional Rights

Two days ago in a post called “Gun Control”, I wrote about some considerations on the question of gun control.

I cut one consideration out of that earlier post because it was large enough and important enough to be given a separate and more thorough examination.

Note the language that the founding fathers used in writing the Second Amendment.

The right of the people to keep and bear arms shall not be infringed.

The founding fathers believed, and founded the Constitution on a belief, that rights existed independent of government. Governments have no power to create or destroy rights, according to this theory. They only have the power to secure or to infringe or violate rights.

So, according to the Second Amendment, there exists a natural right to keep and bear arms. This right is not “invented.” It is not some arbitrary rule picked out of a hat. It is a principle borne from reason that is true even in a state of nature where no government exists. If a government decides to prevent people from keeping or bearing arms, then the right to keep and bear arms does not cease to exist. It is still there. Instead, this right is being violated by government action.

This is the philosophy upon which the Constitution is built.

We see this theory that rights exist independent of government action and governments might respect or violate those rights in a number of places in the Constitution.

Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble and to petition the government for redress of grievances.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .

. . . the right of trial by jury shall be preserved. . .

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, this theory finds its strongest statement in the Declaration of Independence. There, the founding fathers wrote that certain rights such as those to life, liberty, and the pursuit of happiness are inalienable, that the purpose of government is to secure these rights, and that whenever any form of government shall become destructive of these ends it is the right of the people to alter or to abolish it.

Clearly, they did not feel that the existence of their rights as Englishmen were dependent on whether the government in England granted them rights. If they held to such a philosophy, the would have had no grounds for objecting to anything the English government might impose.


If there exists a right to keep and bear arms that exists independent of government, and governments may not violate those rights, then we can determine the limits of government by determining the scope of these rights. If there is no right to keep and bear an atomic weapon, then no government can infringe upon a citizen’s right to keep and bear an atomic weapon. Thus, no law limiting the private ownership of atomic weapons would be in violation of a right to keep and bear arms.

There are some who argue that no rights exist. If this is true, then no government law could ever infringe upon a right of the people peacefully to assemble, or violate a right to be secure in one’s persons, houses, papers, and effects, or violate a citizen’s right to a trial by jury.

This could not be argued that governments may do whatever they please. There may be other ways in which a government’s actions may be wrong other than through the violation of rights. However, it does follow axiomatically that if no rights exist, then no government action can violate a person’s rights.

Do Rights Exist?

This discussion leads us to the question, “Do rights exist?”

Rights do not exist in the form of intrinsic values. Intrinsic values do not exist. If rights are intrinsic values, then rights do not exist.

However, the proposition, “If rights are intrinsic values, then they do not exist” does not imply, “Rights do not exist.” We are still free to examine whether rights exist as something other than intrinsic values.

Typically, utilitarianism and rights theories are seen as mutually exclusive, competing views of right and wrong. Typical act utilitarianism holds that an action is to be judged right or wrong because of its consequences. Rights theory holds that actions are intrinsically right or wrong independent of their consequences. Act utilitarianism gets into trouble when people argue, for example, that it would be permissible to torture somebody to death if enough people got pleasure from watching the torture. Rights theory gets into trouble when it suggests that a right may not be violated even if the violation would prevent every creature on the planet from enduring perpetual, excruciating pain.

I hold that desire utilitarianism gives us a concept of rights that does not depend on intrinsic values, is consistent with the view that an action is right or wrong independent of the act’s consequences, but still leaves room for considering extreme consequences.

The desire utilitarian concept of a ‘right’ says, “People have a right to X” means “A general population-wide aversion to depriving people of X will tend to fulfill other desires.” That is to say, “People have a right to live” means, “A population-wide aversion to taking another person’s life will tend to fulfill other desires.”

Note: I am not talking about whether an act of taking a life will fulfill or thwart desires. I am talking about whether an aversion to taking life will tend to fulfill or thwart (other) desires.

If a person has an aversion to taking the life of another, then that person will be reluctant to act to take the life of another even when that act would fulfill other desires. The stronger the aversion to taking a life, the less likely it is that a person will take a life even when taking a life will fulfill other desires.

A person with an aversion to pain will avoid pain even then the pain would fulfill other desires. A person with a love for his children’s well being will secure his children’s well being even when doing so will thwart other desires.

However, if we pile enough other desires up against this aversion, then they will eventually outweigh that aversion. This person will (reluctantly) kill. So, if we put the taking of an innocent life up against the detonation of an atomic weapon in a distant city, the person with an aversion to killing will find that aversion overridden with concern for the millions of people who would otherwise die. Thus, rights have weight against other considerations.

The Right to Keep and Bear Arms

On this analysis, a “right to keep and bear arms” exists to the degree that “a population-wide aversion to depriving others of their weapons” will tend to fulfill other desires.

Think of how a population-wide aversion to killing, rape, theft, torture, and other evils will tend to fulfill other desires. Then, we need to ask ourselves whether a population-wide aversion to depriving others of their weapons fits into that category.

Now, a general population-wide aversion to depriving others of their freedom clearly fits as a desire that would tend to fulfill other desires. Yet, this desire can clearly be overridden, as it is with laws against murder, rape, theft, and torture (in civilized countries). This population-wide aversion to depriving others of freedom implies an aversion to depriving people of their weapons. However, this, like others, can be overridden by such things as a population-wide aversion to being murdered, or having one’s family, children, friends, or neighbors murdered, or having them suffer the effects of somebody close to them being murdered.


To the degree that there is no value to an aversion to depriving people of their weapons, to that degree there is no right to keep and bear arms. To the degree that there is no right to keep and bear arms, to that degree no government law can infringe upon such a right.

This, then, is the way a desire utilitarian would weigh an important set of considerations relevant to the issue of gun control.


Anonymous said...

We Americans have rights that are considered fundamental, inalienable and absolute; they are attributed to a higher authority than man (man's creator), and they cannot be repudiated. Classical Liberal thinking was that the whole reason for Government was to guarantee these rights. Wisely Thomas Jefferson said: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men." Jefferson's statement which is law in America today is uniquely Judeo-Christian in origin.
In every atheistic society a persons rights are limited to the whims of what ever or who ever is in power. Religious governments that rule by strict religious laws can be equally as opressive. We see examples of this today in 24 Islamic nations where women are denied simple human rights and conversion to any other religion besides Islam can carry a death penalty.
It's obvious, just look at the way people vote with their feet. Are they migrating to atheist countries? Quite the opposite! Are they migrating to Moslem countries? The migration is away from Moslem countries. The simple fact is that the overwhelming migration of people has been and continues to be to protestant Christian countries.
According to Jefferson it is the duty of every citizen to be armed.
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed."
--Thomas Jefferson to John Cartwright, 1824.

Alonzo Fyfe said...

There are five major problems with this message.

The first is the blatant bigotry.

The author of this email does not know me. He has never met me. And, yet, he sees fit to judge me. Of course, he cannot judge me according to anything I have done. He could judge me on what I said, except he makes no reference to anything that I said. Instead, he creates this lump group called "atheists" and judges me as a member of a group that he has invented.

That is the essence of bigotry.

I hold to the right to be judged by my own words and my own deeds. Any moral person knows to hold individuals responsible only for their own actions, and not to blame one person for the actions of another - and in particular not to hold a person responsible for the imagined crimes of others.

The second problem is the lack of concern with the possibility of error when error can cause innocent people to suffer.

Read my post, and you will find that I did not support any conclusion, but only gave considerations. Those considerations are for whatever course of action best protects innocent lives. I am concerned with the possibility of error, particularly when the loss of error means that innocent people will be made to suffer. That is why I say, "I do not know" when I do not know.

Yet, the author does not seem to show any concern that innocent people may suffer if he is wrong. He does not even seem to acknowledge the possibility of being wrong. This combines two very dangerous characteristics - arrogance and a lack of concern for the well-being of others.

In writing this response, please note that I am judging the author by his own words. I am not making general claims about "Christians" and then condemning the author because he is a member of that group. I am not saying that other Christians are guilty of these same wrongs simply because this one is. I hold to the principle of judging each person by his own words or deeds, and will do the same for any person, Christian or otherwise, that I meet.

The third is the claim that this nation's laws are "Judeo Christian" in origin.

Christians had 1776 years before this country came into being in order to establish a nation on those principles, including over 1000 years in which you could not find anybody who would not call themselves Christian. Yet, I do not recall my history books saying anything about the Christians of the Dark Age setting up democratic replublican governments through Europe. Instead, they established monarchical dictatorships. This is the form of government of Judeo-Christian tradition.

In place of freedom of religion, they executed anybody who did not share their beliefs.

Instead of a prohibition on cruel and unusual punishment, the instituted torture.

In place of presumed innocent until proven guilty, they assumed that witches and heretics were guilty unless the accused could prove their innocence.

Instead of freedom of speech, they executed those who were guilty of heresy.

There is few absurdities so great as the claim that this country was founded on principles of the Judeo-Christian tradition.

The fourth problem concerns the claim about migration to or from "atheist countries"

This claim makes the fallacious assumption that there is a single unified doctrine called "atheism" and that, in effect, all atheist countries must necessarily be alike. Of course, I expect most readers to know this to be an absurdity. But it remains an exceptionally popular absurdity.

In earlier posts I wrote that it is possible to determine a person's moral character by the mistakes that he makes. It is possible to ask of such a person, "Why did he make that mistake and not some other?" So, it is possible to ask of a person who speaks about "atheist countries" why he makes the mistake of thinking such a thing?

In this case, I think we can attribute the mistake mostly to intellectual lazyness and bigotry. He wants to lump all atheists together so that if he can find something wrong with these atheists over here, or those over there, he then can convince himself that his hatred of all atheists is justified.

I have written about the principles that I defend as being a part of a fair and just government. Nobody can make a reasonable claim as to whether people would migrate into or away from such a state, because no such state exists. Some are close, but every state in existence deviates to some extent. If I were to identify a state that was closest, I would have to say that it is best represented by the states of northern Europe and Scandanavia. Which, by the way, are the European states that are least Christian and more secular of the European nations.

The fifth problem concerns the citation from Jefferson

This issue is actually covered in the posting. The founding fathers made mistakes. One of which - and one for which Jefferson himself is guilty - is that they upheld and defended the institution of slavery. They built slavery into the Constitution. It is one thing to report what somebody said. It is another to be able to prove that the statement is, in fact, correct.

Jefferson said a lot of things that were right, and deserves credit for those things. He also does not deserve to be given credit for those things where he made a mistake.

This ties in with the concern that all moral people have for the possibility of being wrong. Anybody can find a quote and repeat it. The person who worries about the possibility of error will worry about whether the quote can be proved true or false. The moral person worries about the possibility of error.


Yet, of all of these problems, the worst problem is the loss of innocent lives because arrogant people do not worry about the possibility of being wrong, and barrel ahead without taking the time to actually study the subjects they are writing about, or the arguments for and against the conclusions that they defend. The life that we have on this earth is the only life we have, and far too many of those who have lived have suffered at the hands of arrogant fools who lacked the ability to question their own beliefs.