The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
The bill of rights protects rights, it doesn’t create rights. That is a pretty fundamental concept.
In regards to rights not being created…
Rights are a created and codified concept. Whether or not something is a right or not is decided by someone somewhere down the line. There is always a foundational document that expresses the right because in it’s absence you don’t really have a right you have either a privilege that can be taken away by a valid or at least powerful authority or you have a grey area where simply no law or social norm applies until further regulation is created. This is subject to change over time and location.
Rights as we understand them today are not naturally occuring. The idea isn’t even particularly old in the grand scheme of things. Before that point laws definitely existed but they were pretty simplistic operating codes there was no higher echelon of law that superceed other law particularly just layers of powerful people who interacted with the law. If you were basically in charge of the law you could rewrite it as you saw fit and your potential consequences were pissing off someone who could band together and rebel against your authority. If you felt secure enough you could re-write anything through decree. Rights are a feature that was conceptualized or created from scratch in 18th century philosophy with the rise and design of modern concepts of democratic government.
The 2nd Amendment itself is a wonderful example of a non-universal right. Out of all the governments in rhe world today only four have a version of a right to firearms. The USA, Guatemala, Mexico and the Czech Republic. Of those only the US and Guatemala have no restrictions on both firearm type and a required licencing program. Outside of that guns are most often regulated but legal. Exceptions being situations like Japan where there is an almost total prohibition but where guns are legally purchasable ownership is covered under variation of regular property rights against government seizure sort of like how your car is.
You technically do not have a right specifically to a car. They are just legal to own without a licence and illegal to use without one. But use and possession are two independent principles. The right to property is subject to laws banning or regulations of specific things but also Constitutional rights against illegal seizure. There are a lot of things one can only legally possess only with an appropriate licence and that isn’t a violation of property rights.
Do you believe the second amendment creates a (individual or otherwise) right to bear arms?
Historically, deciding who ascends to the throne when a king dies or how to distribute a man’s property after his death was based on birthright, at least in some cultures. Birthright is an old concept. I believe our modern conception of natural rights or human rights has evolved from that. The development that accompanied democracy was the idea of equal rights, and we’re still working on that.
The text of the amendment is “arms,” not “firearms.” Those terms are not interchangeable.
In what sense does the United States have no restrictions on firearm type?
Firearms in the United States are regulated. Businesses that buy and sell firearms must have a license.
You only need a license to operate a car on a public road. No license is required for driving a vehicle on private property.
I am unsure how your individual takes are relevant to the passages you quoted or are at best fairly surface level abstractions or dodges of main topic at hand… and on a personal note I must say that I am quite tired of this style of engagement where an entire post is chopped up, regurgitated and replied to in short, low effort dismissals. If you can’t write your own damn paragraph, don’t bother.
I will leave this with an answer to your first question. Yes. Laws and legal theory are CREATIONS. Somebody wrote them, had intentions for their use which they tried to write in such a way to illustrate their intent because intent, letter, cultural continuity of precedent and effect to obtain peaceable justice are four independent vectors under which justices balance their individual rulings between. Rights are a body of law. Every single individual part of the operating system of the legal system is essentially optional and it CREATES the rubric for what is a legitimate use of force on behalf of the State. You are simply used to the one into which you were born and are choosing to believe it represents a universal truth. That whole legal possession of in(un)alienable rights was at one political considered a completely radical idea and it had critics. The “Divine Right of Kings” is tracable in an English sense to the Magna Carta which outlines the rules of legal succession which served as a constitutional document. You can trace the application of rights to the populace at large back to the English Bill of Rights from 1689 based largely on the ideas of John Locke and his contemporaries which mostly gained traction as a knee jerk response response to the perceived flippancy and overindulgences of James II but those rights are exceedingly foreign to our modern eyes for not the least reason they are very stratified by class. Your fun fact of the day is the UK didn’t legally have the very basics of human rights outlined as we know them in the American modern conception of them on their books until 1998 which was also when they officially repealed the death penalty since it was an ultimate violation of their conception of rights of the person.
Perhaps ask oneself if the original Constitutional right to “Life” is truly protected in the US when the State and the states under that Constitution are allowed to schedule the killing of people. That phrase “Life, Liberty and Pursuit of Happiness” is a rip from John Locke’s “Life, Liberty and Property” in which his definition of “Life” meant “to live a style of life free from government interference.” This is what has been interpreted as the US Constitutional definition. UK Human Rights Act of 1998 protects a right to “life” as in a right to breathe, think have a pulmonary rhythm etc. Thus while both promise a right to “life” only one is explicitly understood as a protected right to be alive. You have no perfect Constitutional right to be alive in the US.
Every law requires interpretation at it’s point of judgement both ways because the question “what is law” in a broad philosophical sense is something every court grapples with every day. Your take is very much overly simplistic.
… And please don’t try and post “gotchas” because I didn’t list particular nitty-gritty aspects of individual laws I mention. My posts are long enough and I need to truncate them somehow.
I would like to apologize for that. It is a defense against people who act in bad faith.
I will sit down and give you a proper reply when I have time.
>I must say that I am quite tired of this style of engagement where an entire post is chopped up, regurgitated and replied to in short, low effort dismissals.
i don’t mind short, low effort comments. but the meticulously quoted, but page-long comments bother me a great deal. each thread can contain its own topic, and when it necessitates addinional threads, that can happen. writing multiple-page essays back-and-forth is a genuine academic venture, and this is a link aggregation comment section.
I also do not mind short low effort comments either though they often fall into “short, quippy and wrong” issues but the series of quotations in response to each individual part of a prior post is the engagement style I’ve learned to expect of the very self-centered and close minded.
They generally don’t want to have a discussion with an actual discussion of ideas, they want to take the least amount of effort to dismiss the post as wrong out of hand and be done with it.
Not really. Rights are a man-made construct. A social contract that a people agree on. There’s nothing inherent about them.
A society could, for example, decide that certain people had the right to eat human babies, beat their wives. That would be just as legitimate as anything else.
By the same token, a society can decide that certain things are explicitly NOT rights, or to decide which rights take precedence over other rights.
None of this is defined by some divine ordnance, or law of nature. It’s all people.
Rights are a fascinating concept. While I agree with you practically that we definitely create the social contract that “gives” people rights, that’s not really how rights are conceptualized in law. In the Western conception, rights are, by definition, not “given”, they are “inalienable”, meaning that you have rights even if someone has taken away your practical ability to exercise them. The rights themselves, separate from your ability to exercise them, are indeed considered “inherent”. In the olden days, this was often codified or framed in terms of religion, but it doesn’t have to be. Calling rights “natural” or “self-evident” are other ways of framing their “inherent-ness”.
Of course, in reality it isn’t so simple. We separate “natural” and “derived” rights. There aren’t many natural rights. Things like the right to life, to self-determination, and to freedom of conscience are considered natural rights (in the West, anyway), while something like the 2nd amendment to the US Constitution would be considered a derived right. Derived rights, of course, are rather more subject to interpretation since they rely on a chain of reasoning from a more natural right, and that chain of reasoning is subject to challenge.
Except, that many black folk in the US did not have a right to life or self determination at the beginning. So even these “inherent” rights aren’t so inherent until society agrees to grant/create them.
They had the “right” but they weren’t able to exercise it. The moral wrongness of withholding their inherent right to life, etc. Is what created the moral impetus to free the slaves. It is a subtle but important difference. If rights are inherent, they can’t be removed without violating the moral fabric that those rights are based on. Thus, when a government removes the ability to exercise an inherent right, that is what makes that government’s action “wrong” and not just “different”.
I’m not buying that. Slavery has been a staple of civilizations all through history. There’s no universal law of nature that any being has any right to life, freedom or self-determination.
The “moral fabric” isn’t some universal constant either. It too is a function of society. In the U.S., for instance, in 1776 there was no moral problem with slavery. Time went by and morality in the country evolved such that slavery, for many, was no longer acceptable. But it wasn’t that the moral fabric of U.S. society was violated in 1776, it was just different in 1776.
Who knows, in another 100 years people might consider something that is normal today to be some huge violation of something that should be a human right.
Yup, fair enough. If I wasn’t clear, I’m not necessarily arguing that I believe in the concept of inherent rights. I’m an atheist, so I have a bit of trouble with it, too. Nonetheless, it has a very long tradition and underpins the modern concept of rights. At least conceptually, we lose something when we say that rights are contingent rather than inherent.
The concept of natural rights is great for people who believe in God and are arrogant enough to speak for him. Not so much for rational people.
The fact that our supposedly secular legal system is based around religious gobbledegook is something I try not to think about.
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“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.”
As written, the right to bear arms only applies to people who are in a well regulated militia.
The modern use of “regulated” isn’t the same as it was then.
Regulation had to do with training and equipment. The idea was that militias, as opposed to a standing (“Regular”) army, weren’t always trained and armed when they were called to arms. The idea of a “well-regulated militia” was for civilians to already have weapons and understand their use if they were needed.
So a requirement for a well-regulated militia is for civilians to have the right to own and use weapons.
Is it antiquated? Maybe. But saying that “well-regulated” militia was meant to limit access to firearms is an argument based on either ignorance or dishonesty.
Well not quite. Well regulated did also include training and they did not consider the average person to be well trained enough to qualify for the phrase.
False, George Mason quote “I ask, sir, what is the militia? It is the whole people except for a few public officials.” George Mason wrote a draft of what became the second amendment
As written, the right belongs to ‘the people’. That’s everyone. It can’t be infringed because that would interfere with their ability to form a well regulated militia, which is necessary to secure freedom.
English is hard sometimes, but not that hard if you try.
Right. Because rights are created by God, right?
Rights are not created, bestowed, issued, manufactured, or handed out.
They aren’t a license or a badge or something physical.
Right. Just like God.
I think the important thing is to remember how important it always is to fight for them, at any rate.
I would argue all gods are created since there is zero evidence that they exist outside our imaginations.
That’s correct, the right for schoolchildren to live should always be fought for.
First and foremost. Though that argument in practice drifts annoyingly towards anti-abortion arguments, which are a different situation.
The rights of an existing citizen should always come before the rights of a theoretical future citizen. Requiring a potential mother to donate time and blood against her will is a very tiny step away from requiring US citizens to donate blood against their will to save a different life. Do you know what kind of shitstorm there would be if they started blood typing people in border states so that they could commander citizens to take their blood to help injured noncitizen immigrants?
If the government flipped to an ultra socialist majority, the precedent that is ok for the government to override your right to bodily autonomy when it seems it necessary to save a life, could take a pretty dark turn, mandatory blood donations, marrow, that extra kidney you aren’t using… All that could be fair game in the name of life.
Interesting argument. I prefer to draw a distinction between a fertilized embryo and a human. The idea that a fetus has the same rights as an awake, thinking, feeling person is absurd. If fetuses have rights, then liver cells should too.
The bodily autonomy arguments are a little less effective imo. The right does not genuinely believe in freedom or rights period, much less bodily autonomy. Thus, body autonomy arguments will not work. They simply don’t really believe in it. They believe people are a resource, to be used up, just like coal or oil. As soldiers or workers or breeders or whatever. They won’t admit it, but that’s kinda how they feel. Kinda that whole old-school “work to live” line of thinking.
Btw, I hope I’m not confusing you, but I’m not actually a conservative. I’m simply willing to sound like one whenever it helps me to communicate a point to someone. I’m no genuine christian though, Jesus, while real, was a human man, nothing divine about him.
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Internet atheists see any mention of God or religion as an opportunity to hijack a discussion.
internetreligionists see any criticism of religion as out-of-line and personally insulting.Can you explain why religion should have been a part of this discussion before someone else brought it up?
Yes.
What’s the difference between an “internet atheist” and an atheist?
It’s a little like this:
I am a vegan.
You should do crossfit.
I use Arch btw
When it’s literally a discussion of where rights come from and theists suggesting they come from God (while avoiding the word God and pretending they mean something else), it’s not hijacking. You’re the one trying to hijack to discussion to talk about how much you hate atheists.
Whoa. That’s a bit too philosophical, bud! We like to keep things simple and superficial around here.
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