With every new mass shooting, it seems that everyone on social media is some combination of a gun expert, Islam expert, terror expert, security expert, etc. That’s all well and good, and I am all for people having conversations about these kinds of things. I’m admittedly no expert in any of these areas, and I’m not writing this to try to present any answers or solutions. But this topic, and others like gay marriage, seem to always show that many people profoundly misunderstand what rights are.
The Constitution and Bill of Rights have no role in terms of “creating” rights.
Rights and Law Aren’t Synonymous
You can see how far off people really are when you run across arguments along these lines: “The First Amendment and free speech aren’t absolute and can be limited, so the Second Amendment can be too”. There are several things grossly wrong with this argument: the first being that it gives way too much significance and power to the Bill of Rights.
The Constitution and Bill of Rights have no role in “creating” rights. The Constitution itself is useful only insofar as it lays out the guidelines, structure, and organization of the government. It has no place dealing with anything else.
Rights are extremely simple and bills of rights, constitutions, civics classes, etc. only serve to muddy the waters. They lead people into the confused belief that individuals or representatives or majorities can create rights by writing them down on a magical piece of paper.
What Rights Do You Have?
The concept is simple. You have one and only one right, namely property. And you have that right by virtue of being a conscious being. We divide that up into such “sub-freedoms” as freedom of speech, freedom to assemble, the right to bear arms, etc. just for the sake of ease of conversation when talking about specific types of property rights. But make no mistake, every legitimate right can be reduced to a right to property, while every illegitimate right cannot.
You own yourself and your rights only end where the rights of others begin.
And as a conscious being , you are entitled to this natural right even if you are able to conceptualize it. Put differently, if you can think about having rights then you have them: regardless of whether they are written in a 200 year old document or not.
The second thing wrong with the above statement is that it’s completely false! Freedom of speech cannot be morally limited. You own yourself, and your rights only end where the rights of others begin; i.e. you can conduct yourself in any way you see fit so long as you do not violate the property rights of other conscious beings. The classic example typically given is that of someone yelling “fire” in a crowded theater. It is said that this speech can be rightfully prohibited, and so there are “obvious” limits to the right to free speech.
Though you may not rightfully yell “fire” in a crowded theater (most of the time), the reason for this has nothing to do with a limit on free speech. The reason you may not do this is that you would be violating the property rights of both the owner of the theater and the patrons. Most theaters have a code of conduct and yelling “fire” is almost certainly violating that code. Since you would be currently occupying the someone else’s property, you must follow all their conditions for using that property, or you must leave. Otherwise, you are violating their rights.
You would also be depriving the patrons of getting what they paid for. They purchased a ticket in exchange for viewing the film or performance being shown in the theater and so have a de facto form of temporary property claim on a seat or spot in the theater for the duration of the show. By yelling “fire” and presumably ending or delaying the show or performance, you are depriving them of their property and violating their rights.
Contractual Restrictions of Rights
It’s extremely important to remember that right(s) only exist in the space that does not encroach on the rights of others. This means that the above situation does not constitute a “limit” on freedom of speech, but rather is a realm in which free speech never existed and can’t exist. Rights can never serve to aid in the violation of another’s rights because true rights never conflict. This is easier to conceptualize when you consider all rights as only a right to property. You can say what you want because you own your body, but if you choose to occupy someone else’s property, you must abide by their rules or leave.
Now let’s bring it back to the original statement and the conflict surrounding the right to bear arms. You can bear arms, not because of a few lines of text in an antiquated document, but because you have a right to purchase anything so long all the people involved in the transaction are doing so voluntarily and knowingly. In other words, you can ethically buy anything you want (drugs, guns, sex) as long as the rights of others aren’t violated in the process. What individuals do with what they buy is a wholly different and unrelated argument.
Freedom of speech is absolute. The right to bear arms (any arms) is absolute. Neither one of these facts has anything to do with the Constitution, and neither can be morally limited.