In the debate about the Second Amendment and its interpretation (no, this argument was not concluded by last summer’s Supreme Court ruling in District of Columbia v. Heller) some insist that the Second Amendment is “an absolute right.”
Indeed, in one recent discussion about guns in parks, one individual asserted, “The 2A is an absolute right. Endorse it absolutely…”)
Among the definitions of “absolute” offered on-line by the Merriam-Webster dictionary, is “being, governed by, or characteristic of a ruler or authority completely free from constitutional or other restraint,” and further, “having no restriction, exception, or qualification.”
However, according to Justice Antonin Scalia’s majority opinion in Heller, “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…”
The Brady Campaign insists that it is subject to all kinds of restrictions, the more the better. While they can no longer claim the Second Amendment does not protect an individual civil right, they still want to regulate that right to the level of a highly restricted privilege.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" - Justice Antonin Scalia
Freedom of religion does not allow one to practice human or animal sacrifice.
Freedom of speech does not allow yelling “Fire!” in a crowded theater.
Freedom of the press does not allow us to libel others.
Do we have the absolute right to carry firearms in a deliberately provocative or dangerous manner; that is, to intentionally shock, intimidate or endanger others?
If you answer “No” to the last one, then the Second Amendment in a strict sense is not “absolute” at all, but subject to “reasonable restriction.”
Perhaps we are not talking about an “absolute” right but a “fundamental” right. As such, this right would be a “basic principle, rule, law, or the like, that serves as the groundwork of a system; (an) essential part.”
Author P.J. O’Rourke once observed, “There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences.”
“Chuck” from Pennsylvania says, “I believe that a right, ANY right, is only ‘absolute’ until it causes harm to another. But, unless and until it causes that harm, it IS absolute. If it causes no harm, then there is no reason, logical, ‘reasonable’ or otherwise, to infringe upon that right.”
“Jim” had this observation: “Forget about the Platonic Ideal of an ‘absolute right’, there is always somebody or something to limit your rights. I dare say even the Founders did not consider their laundry list to be absolute.
“Even gun owners can find some restrictions on the right to keep and bear arms,” he added. “Few would favor selling a paroled felon a pistol in order to maintain a record of absolute right.”
That got a reaction from “Harold,” who commented, “I’ve always felt that even a felon should be able to keep a weapon at home for self defense, with the caveat that using it in his criminal profession should result in summary execution.”
“Mike” wrote, “Nothing is absolute in this world except death. We only have and keep those rights as long as we're willing to fight for them. Everything else is just wishful thinking.”
An American citizen ought to be able to own any kind of gun he or she wants.
Geoff in Arizona stated: “No TANGIBLE civil right is absolute. Maybe, if one was the only human on the planet.
“Intangible civil rights, however – Life, Liberty, the PURSUIT of Happiness (where Pursuit is the salient word to the entire discussion)…are absolute and cannot be taken, regulated or diminished,” he added
“I think the key in this discussion is that difference between a ‘physical’ and a ‘mental’ Civil Right. After many years of playing the ‘what if’ game, I’ve never found a case where a physical right is absolute under all circumstances.”
“Tim” in Tennessee summed it up eloquently.
“Most of what we consider 'freedoms' are not at all,” he said. “Freedom of speech has been moderated in almost every venue. You can yell ‘Fire!’ if you like, but the law says you will be punished for it…
“So, are we free? No,” he added. “Are freedoms inherent? No. They are earned. Think of our own Constitution. This was not a document given by God, it was crafted by men. It was crafted after we WON our freedom. We fought for it, many died for it, many still die for it. But we are constantly under attack and we constantly give up a little here and a little there.”
An American citizen ought to be able to own any kind of gun he or she wants. It is none of my business, or yours, and certainly none of the government’s, how many or what kind of guns a person owns. As long as they aren’t hurting people, robbing banks or endangering or threatening other citizens, or otherwise being nuisances, who cares? Want to carry a concealed handgun for personal safety? Go ahead. Want to carry one openly? Fine.
Which brings us around to the national parks issue; in nine months, it will be legal to carry a loaded firearm concealed or openly – pursuant to the laws of the state in which the park is located – for personal protection. This does not mean you can hunt, shoot targets or otherwise misbehave.
The National Park Service’s recent report revealed that 11 murders, 35 rapes, 61 robberies and 261 aggravated assaults occurred on parklands in 2006. - National Rifle Association
Opponents have argued that this statute will make parks less safe. Well, according to the National Rifle Association and National Park Service statistics, parks are not exactly risk-free environments right now.
In the years between 2002 and 2007, there were 63 homicides in national parks, 240 rapes or attempted rapes, 309 robberies, 37 kidnappings and 1,277 aggravated assaults, according to NPS data.
In 2006, the NRA noted (again quoting NPS data), there were “11 murders, 35 rapes, 61 robberies and 261 aggravated assaults… Between April and December 2007 there were at least a dozen grizzly bear attacks reported by park visitors.”
The new law will take effect in 2010. Until then, don’t “jump the gun.”
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For more info: Second Amendment Foundation, National Rifle Association,
Comments
Neither. The 2nd Amendment is a natural right. All animals have the right to defend themselves and their family unit. Humans are tool builders and have built tools that assist in their defense. The 2nd Amendment only recognizes that natural right.
Interesting observation, James. So this "natural right" of which you speak, can it be regulated, restricted, taken away?
What do you say to those who insist it is an "absolute Right?"
I would simply observe that while the Fourth Amendment makes allowances for reasonable search and seizure, the Second Amendment contains no such provision for reasonable infringements.
"You can't shout fire in a crowded movie theater" is the classic limit imposed on the 1A. It might be said that such action creates an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.
Adolph Hitler and the Nazi regime are frequently raised in gun control discussions, but I've read the opinions of some who say the principle weapon of war the Nazi regime employed was words and ideas, not guns. Words can shape people's minds in ways that weapons cannot.
The second amendment only confirms a right to Keep and Bear arms. Nobody was ever harmed by another simply keeping or bearing arms. Even a felon can't harm you unless he actually Uses an arm in a way that's already illegal. The Declaration of Independence recognizes our unalienable rights as coming from our creator. Whether you consider that a personal deity or or the laws of nature, Dezendorf has it right.
Chuck” from Pennsylvania says, “I believe that a right, ANY right, is only ‘absolute’ until it causes harm to another. But, unless and until it causes that harm, it IS absolute. If it causes no harm, then there is no reason, logical, ‘reasonable’ or otherwise, to infringe upon that right," --- Nevertheless,under the guise of "reasonable controls", read that: "reasonable infringements", the right has become not just a heavily regulated privilege, but even a crime, a felony! As Mr. Lee once said:
As Mr lee said: "Something wrong here." And DNA lawyer Barry Scheck added: "Yes, ladies and gentlemen, something was terribly wrong!"
No where else in the bill of rights does it state shall not be infringed, from this I take the meaning of the founders to mean we have a absolute right to keep and bear arms. Keeping in mind that even though we have this right, you also have no right to use it to threaten for harm another unless it is necessary to defend yourself or someone else is being threatened!
<i>"Adolph Hitler and the Nazi regime are frequently raised in gun control discussions, but I've read the opinions of some who say the principle weapon of war the Nazi regime employed was words and ideas, not guns. Words can shape people's minds in ways that weapons cannot. "</i>
Words weren't the principle weapons of "war", but they were used extensively by Hitler to gain power, along with intemidation via the SA. Much of Hitlers' words were lies, just as Obama's have been lies.
You also
I never agree that the Second Amendment isn't an absolute right. I know the argument is always a trap by my opponent, who is dying to play the game of "this right is subject to reasonable restriction. Now I will propose XYZ, which is a restriction, therefore it is reasonable." Well, screw that -- if I don't concede "reasonable" restrictions, I deny him that wedge. Is America polarized? Yup, and that's why.
The question [Is...there an 'absolute right'] is largely malformed, and as in the above it is easy to go off on illogical tangents.
In some sense no right is absolute, since you can be (legally, ethically, constitutionally) killed (thus removing all rights) for the crimes you may commit, and there are many lesser abrogations of rights that come up when your rights meet those of others.
Let's take the offered examples which are wrong on several levels:
<Freedom of religion does not allow
The [actual] "right to keep and bear arms" (RKBA) is both natural and absolute. The Second Amendment (2A), which recognizes the RKBA but does not establish it, in theory, is absolute, but in practice, is not. The ruling class, with varying degrees of accuracy, reflects its constituents (We, the People). If "the People" don't believe these rights are absolute, the ruling class [in practice] won't either. So, if we want the 2A to *ever* be considered absolute in theory and in practice, it must
<cont'd> So, if we want the 2A to *ever* be considered absolute in theory and in practice, it must start with "the People," electing rulers/representatives who believe the same, and unelecting rulers/representatives who do not.
Also, it may seem a small point, but I feel I must make it:
"Freedom of speech does not allow yelling 'Fire!' in a crowded theater."
should be
Freedom of speech does not allow one to *falsely* yell 'Fire!' in a crowded theater.
In answer to the question as phrased “Is there such a thing as an absolute right?”---my response would be “No”, but perhaps not for the reason one might initially think.
An actual ‘thing’--any actual ‘thing--is more or less generally considered to have some type of matter as part of its composition.
A ‘right’ in general, identifies a ‘status’ of an individual person.
A ‘right’ isn’t comprised of matter, thus doesn’t qualify as a ‘thing’, therefore there’s no such ‘thing’ as an absolute ‘rig
previous statement in its entirety...
"A ‘right’ isn’t comprised of matter, thus doesn’t qualify as a ‘thing’, therefore there’s no such ‘thing’ as an absolute ‘right’."
Had the question been phrased as,
“Are there circumstances in which a ‘right’ is absolute?", my response to the question ( as phrased ) would be “Yes.”
With regard to the ongoing debates over so-called ‘interpretations’ of the Second Amendment, the vast majority of said ‘interpretations’ are in fact, irrefutably taken entirely out of context.
Fortunately those who wrote and ratified the First 10 Amendments to the Constitution provided a highly pertinent ( but mysteriously rarely ever cited ) explanation of the purpose and intent for the Amendments in the PREAMBLE.
“THE Conventions of a number of the States having at the time of their adop
ting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution…"
Correctly understood, the Second Amendment is first a declaration that a well regulated militia is necessary to the security of a free state, secondly a declaration of the preexisting ‘right’ of all American Freemen to Keep and Bear Arms, and finally as a further restrictive clause placed on a government already limited in powers only to those afforded to it by consent of the people--specifying said ‘right’ shall not be infringed.
The Second Amendment is in fact a ‘LAW’ written into a legally-binding Contract / Compact with the people specifically prohibiting those within and acting on behalf of the Federal government from any act which in any manner could be construed as an ’infringement’ on the ’right’ of American Freemen ( the people ) to Keep and Bear Arms.
The existence of numerous Federally-enacted firearms laws, many unarguably infringements on ’rights’, and nearly every one in direct violation of the law as written into the Second Amendment--stands as irrefutable testament to the fact that no law, no matter how longstanding and clearly written…has ever stopped anyone intent on violating it from doing so.
During the Federalist/Antifederalist debates many of the founders were convinced that their newly established government had so many restraints placed upon it within the body of the Constitution that enumeration and specific protections of individual rights would be totally unnecessary. Many rights were considered to be so basic, so “fundamental” it was unthinkable that the administrators of the newly established constitutional republican form of government would ever even consider violating th
Cont:
them. The God given fundamental rights King George hadn’t already infringed wouldn’t under any instance be in danger of being violated by the new limited constitutional government. After all, the founders made certain that the only powers they intended to be granted to the new government were expressly enumerated within the body of the constitution.
King George had not attempted to restrict or tax the right of self defense, the right to draw breath, the right to move freely about the
Cont:
country, or the right to gainful employment. Notice, if you will, none of these rights are enumerated within the first ten amendments of the Constitution. The only God given, fundamental rights mentioned in the “Bill of Rights” are those King George or the English Parliament had in some manner attempted to INFRINGE.
I have always held the opinion that my rights are limited and end only at another’s nose. As long as I am not infringing upon another’s life, liberty, or pursuit of happ
Cont:
happiness, I should be free to conduct my affairs as I see fit. If I do infringe upon another’s rights, even unintentionally, that person has the right to act in such a manner as to remind me that my actions were unacceptable. This is where our rights as allegedly protected by the 2nd amendment come into play. If I am aware that the person whose toes I am about to stomp may be armed, I will more than likely reconsider any aggressive action I might be considering. I maintain that the
Cont:
that the only fundamental right that does not exist is the right to initiate aggressive action against another person or that person’s property.
You're close, but no cigar. Rights exist, are absolute, and are often most evident while being violated. It is the ABUSE of these rights that are subject to restriction. "In a free nation government has no authority to forbid me from speaking because I might falsely shout 'Fire!' in a crowded theater. And government has no authority to forbid me from owning a firearm because I might shoot an innocent victim." - Tom McClintock (CA)
"Freedom of speech does not allow yelling “Fire!” in a crowded theater."
What if the theater is on fire? Seems like it would allow yelling fire in the crowded theater should the theater happen to be on fire. Blindly making the statement above without getting to the actual point that causing a PANIC in a theater by misleading people is the thing that we want to prevent. Saying "fire" isn't the problem its doing something (anything) to cause undue panic.
Scalia is absolutely wrong about this one and should be ashamed. What part of "...the right of the people to keep and bear arms shall not be infringed." does he not understand? All one need do is look up infringed in any decent dictionary. Isn't he smart enough to do that? Any government that wants to disarm the people is sending up a red flare of danger. Besides, it isn't to make the world safer, as any lawbreaker can tell you that he will use a hammer, a knife or a rock if he must--so long as
Below should have read -- "...any lawbreaker can tell you that he will use a hammer, a knife or a rock if he must--so long as the victim is disarmed."
...As with the right of free speech, there are times and places where you may (temporarily) waive your right to arms as a condition of entry or participation; but this is (should be) a voluntary action. For example, we all know that "bearing arms" is prohibited in some locations as a condition of entry. This is legitimate when the "authorities" assume full responsibility for your personal safety and protection. Unfortunately, that is rarely the case. The government often prohibits the bearing
...Similarly, the right "to keep and bear arms" is also absolute. That would be more obvious, if we simply referred to the "right of self-defense". Is there a "reasonable" restriction on your right to defend yourself? As a free human being, you have the inherent right to defend your life, liberty, and property against all enemies, foreign and domestic. Personal arms are necessary for optimal defense. Any infringement on your right to arms, infringes on your ability to defend yourself.
...The right of free speech is not the right to open your mouth and let your brains pour out whenever you feel like it. It is the right to express your private opinion or deseminate truthful information, in public, without government restriction or retribution. That right is absolute - the government cannot lawfully restrict what you say, or where you say it, unless you have previously agreed to keep certain information confidential.
ALL "rights" are absolute. The problem is that we tend to debate "privileges" because most don't understand what true rights are. A "right" expresses a personal freedom of action and does not injure or place obligations on other people.
That is an absolutely stupid question. There may be few uncontested rights, but there are many absolute rights.
Where absolute rights of one conflict with the absolute rights of another accomodation may be necessary, but that in no way negates the absoluteness of the right. Violation of another's rights because of the exercise of one's right is actually antithetical to the idea of rights. When that seeming paradox occurs someone is exceeding what is rightfully his right.
Right??
Got it now?
If the theater is really on fire, then shouting "Fire" isn't an exercise in free speech. It's a declarative to notify others about an immediate but avoidable danger of death or grave bodily harm to the innocent.
...actually, animal sacrifice is protected.
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