Second Amendment: Gun Rights. But What Is a Right, and Do We Have Them?

Second Amendment: Gun Rights. But What Is a Right, and Do We Have Them? February 27, 2018

We hear the term “right” bandied around an awful lot, especially in the context of gun control. The Second Amendment to the US Constitution states that citizens have the right to bear arms. The phrasing is as follows:

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.

Unsurprisingly, to those who know my thinking well, I am going to set out a case that rights do not “exist”. I’m not even gong to invoke Hobbes, Jefferson, Locke or Hume. Let’s keep it simple.

Briefly, I am a conceptual nominalist. This means that abstract ideas, like rights, do not have ontic existence – they do not exist objectively outside of our conceiving minds. We, as sentient humans, construct rights. I could get together with some friends and set out a right, claim it as universal, that I and my fellow humans have a right to access cabbage at all times. This right would exist in our collective minds.

What we see here is that this case of a right becomes a mere assertion. The problem is, when a lot of people assert the same assertion, it gives said assertion weight, and many confuse this with the claim becoming some kind of objective truth.

Rights, when constructed by human, thinking minds, are abstract ideals that spring out of moral philosophy and moral cogitation. If all humans or sentient intelligence were to die, suddenly, then these rights would die with the minds that can conceive of them. They may remain written on old pages, but these pages of texts are meaningless scribbles without the minds to derive meaning from them.

What happens in the world is that these “rights” that we construct, if they pass the muster, get codified into law. In the case of the Second Amendment, we have a codification of a moral proclamation that has been woven into the political framework of a particular nation (the US) from which emerges certain laws.

But the right can be torn up, in principle, very easily (in practice, less so). It’s just a bunch of words written by a bunch of guys at a certain time in history because they thought it had moral potency. If the consensus thought in the US is that those words are now defunct, then so be it. There is no special ontology accorded to such a “right”. The legwork of a right gets done when it is legally codified.

You can argue certain rights come from the Bible, or the Qu’ran or wherever but people will disagree on what these are and whether they do actually (objectively) exist, especially considering so many religions. More recently, and with a lot more moral pedigree, the UN has produced a charter of human rights. As much as I admire and agree in large part with this charter, and considering many people see these as universal, they are only universal if everyone agrees with them (or perhaps if every country signed up to them). And they only have real, pragmatic ramification if people are held to account for not following them. In other words, they need to be codified into (international and national) laws such that proper consequences are derived from breaking them.

The UK’s Equality and Human Rights Commission defines human rights as follows:

What are human rights?

Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.

They apply regardless of where you are from, what you believe or how you choose to live your life.

They can never be taken away, although they can sometimes be restricted, for example if a person breaks the law, or in the interests of national security.

These basic rights are based on values like dignity, fairness, equality, respect and independence. But human rights are not just abstract concepts, they are defined and protected by law. In Britain our human rights are protected by the Human Rights Act 1998.

This is understandably woolly, and the first few sentences take a whole bucket-load of moral philosophy to establish. I mean, it sounds lovely, but there’s a lot of work to do there. The key to the whole definition lies in the last sentence. They are protected by a law. You will find that they aren’t protected, though, they are actually established by the law, as is clear from the previous sentence. Who gets to do the defining of what is a right and what is not? Well, the people who make the laws. Because everyone and anyone can assert rights. I made one up earlier. I’ll do another – I have the right to a clean kettle. Or I have a right to shout loudly all day long, no matter where I am.

But rights are only really meaningful when translated into law, and even then, only to those political contexts where those laws are relevant and enforced. Usually, this means that you can do anything that doesn’t infringe on someone else, morally speaking. That’s pretty much normative morality. As the inimitable Will Self states:

I only throw this proposition out in a spirit of humane enquiry – could it be that human rights simply don’t exist? After all, in my understanding it’s difficult to conceive of a person’s rights as obtaining at all unless an effective sanction is in place in the event of their violation.

Take the human right not to be enslaved – it’s a noble aspiration, but looks pretty threadbare in a world in which there are more slaves than ever, many of whom are debt peons created by the operations of powerful multinational corporations who cannot even be accused of hypocrisy, since they aren’t signatories of that ringing declamation.

No, the only situation in which human rights could truly obtain would be one where an independent global judiciary, duly and constitutionally constituted by the sovereign will of all humanity, was able to judge violators who had been arrested by an equally incorruptible international police force.

Take the right to bear arms. It’s not a right to me. Actually, I rather prefer the right not to be in the company of those who bear arms. I prefer the right to live in a society where people are not allowed to publicly bear arms. The Second Amendment is not my right. In America, for instance, you have a right to an abortion. However, many on the political and evangelical right in that same country will argue vociferously against that right by invoking other rights so that there is a rights arm wrestle. That’s a lotta rights.

Because “right” is just another term for “moral proclamation”, and people argue for different rights in the same way they argue over morality, and they do that in the same country as someone who might disagree, even if there are rights as set out by law.

So when gun apologists argue that they have a right to bear arms, I shrug because it carries little philosophical weight unless backed up with really sound moral philosophy. It is only meaningful, in a pragmatic real-world sense, when backed up by the law of the land. Which it is, in the States, but it doesn’t need to be. Laws can be changed. In the same way Constitutions can be changed or amended.

Be careful in putting too much store in this notion of rights. I rather like this conclusion from Jonathan Wallace:

The natural rights debate leads us down a false road. The energy spent in arguing which rules exist should better be spent deciding which rules we should make. The “perfect freedom” Locke described “to order their actions and dispose of their possessions and persons as they see fit… without asking leave or depending upon the will of any other man”, does not dictate the existence of rights; instead it leaves us perfectly free to legislate them.

I prefer this freedom, which seems to me simple and clear: we are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don’t tell me it offends the universe.

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