Philosophy 101: Is the 2A an "absolute" or "fundamental" right?

Dave Workman · May 22, 2009

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This is not a trick question!

The Seattle Gun Rights Examiner offers an opportunity to engage in a philosophical debate about the Second Amendment:

Is it an "Absolute Right?" or a "Fundamental Right?"

Philosophy 101 with the Seattle GRE

http://www.examiner.com/x-4525-Seattle-Gun-Rights-Examiner~y2009m5d22-Philosophy-101-Is-there-such-a-thing-as-an-absolute-right

If that doesn't work:

http://tinyurl.com/p58cgm

marine77 · May 22, 2009

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An inherent right.

Dave Workman · May 22, 2009

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marine77 wrote:

An inherent right.

Well, okay, but is it an "absolute" or "fundamental" right.

'Inherent" only means that the right is yours by citizenship, but I'm looking for something else.

Did you read the column? If not, give it a read and then give it some thought.

There is no wrong answer, so "inherent" would sort of make the grade as a definition, but that tells how one comes into possession of the right, not how far it extends.

That make sense?

Washintonian_For_Liberty · May 22, 2009

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I believe the term is 'inalienable right'. I believe itmeans thatit is a natural right of all persons to be secure and able to protect themselves.

You won't see this on Wikipeida under 'Natural Rights' nor under Natural and Legal rights' as Wikipedia is written by a bunch of left wingers who don't believe that self defense is a right.

But as a natural right, I believe it is an absolute right. And therefore, the 2A is also an absolute right.

Citizen · May 22, 2009

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Washintonian_For_Liberty wrote:

I believe the term is 'inalienable right'. I believe itmeans thatit is a natural right of all persons to be secure and able to protect themselves.

You won't see this on Wikipeida under 'Natural Rights' nor under Natural and Legal rights' as Wikipedia is written by a bunch of left wingers who don't believe that self defense is a right.

But as a natural right, I believe it is an absolute right. And therefore, the 2A is also an absolute right.

I tend more in this direction (above quote).

Dave, don't forget to look at the prior restraint angle when it comes to guns. Some of the "exceptions" you mentioned for other rights are not restrictions on a right. They are more penalties, after the fact, for misusing the freedom.

For example, "freedom of speech does not extend to yelling fire...theater." This is one thrown up at us frequently. However, the enforcement only occurs after the transgression. If government were to apply gun-law type prior restraint, they would cut out everone's tongue before they entered the theater.

As another quirky example, "religious freedom...human or animal sacrifice." Were the government to apply gun-law type prior restraint, clergy would be backround checkedforever having officiated at a ritual sacrifice before beingrecognized to perform marriages.Church altars would be licensed and subject tounannounced inspections andtesting for blood.

I'll go with "unalienable right". And that it does not need any prior restraint except on the insane. Just limit it to the same degree as the examples above. No hunting with rifles in certain areas. No reckless discharges. No threatening. Etc.,etc. Just penalize the misusesof the right.

N00blet45 · May 22, 2009

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I tend to say absolute.

In a free society one would be free to do as he/she wished. The law would only intervene and restrict the individual's freedoms when he/she violated the rights of another.

Define for me "reasonable restriction". Until that phrase can be defined in concrete terms there is no way I can submit to a practical or fundamental reading of the 2nd amendment. Reasonable is too open to interpretation, allowing the goal post to be moved continuously.

A free individual should be allowed to carry any arm in any situation at any time without intervention from legal authorities so long as the rights of others are not violated. If a citizen cannot be trusted with arms then he becomes a subject and is no longer free.

jerg_064 · May 22, 2009

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jerg_064 wrote:

here's a literary Analysis.

"The words 'A well-regulated militia, being necessary to the security of a free stateconstitutes a present participle, rather than a clause. It is used as an adjective, modifying 'militia,' which is followed by the main clause of the sentence (subject 'the right', verb 'shall'). The to keep and bear arms is asserted as an essential for maintaining a militia.

"The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

"The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

"The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

"The right is assumed to exist and to be unconditional. It is invoked here specifically for the sake of the militia."

"The phrase 'well-regulated militia'means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

"There has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: 'Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged'."

"As a 'scientific control' on this analysis, comparethe text of the Second Amendment to the following sentence:'A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.'

The "'scientific control' sentence precisely parallels the amendment in grammatical structure." There is nothing inthe sentence that either indicates or implies the possibility of a restricted interpretation.

Taken from here:http://www.largo.org/literary.html

So if you actually take it as it was written then the 2A is unconditional and absolute. There is no firearm we can't own that we can carry(keep and bear)and prior-restrainst is without a doubtUnconstitutional(ILLEGAL). The right in this countryIS absolute, their is no such thing as a"gun crime". There is no such thing as abusing this right, you cannot own too many or carry too many of any kind.

If you hurt someone or something else that isnot animminent threat to you or any other LAC then youare breaking the law which is concurrent with most human beings values and morals since the beginning of our existence.If you use a gun, you are simplyusing a tool while breaking the law. To say your abusing that right because you hurt someone while exercising it is like saying your abusing your right to wearfootwear because you stomped someone while wearing boots.

Any amount of prior restraint goes against freedom. As a free man in a free country I am allowed to do w/e the heck I want. If I end up doing any thing that hurts another human being w/o reason to do so(self-defense or defense of others or property,etc..) then I will be punished accordingly. All rights are absolute!

Washintonian_For_Liberty · May 22, 2009

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Citizen wrote:

For example, "freedom of speech does not extend to yelling fire...theater."

This is a common mantra of those who desire to restrict our rights. However, freedom of speech DOES extend to yelling fire in a theater. Whoever owns the theater makes the rules of conduct.

Jacob Hornberger wrote that Oliver Wendel Holmes got it wrong in the 1919 U.S. Supreme Court case of Schenck v. United States. The reason that a man ordinarily cannot scream, “Fire!” in a theater is that the owner of the theater hasn’t permitted it. That is, when a patron enters the theater, he does so on terms established by the owner of the theater, which implicitly include a rule against disturbing the other patrons.

Let’s assume, however, that for some strange reason a theater owner decides to create a rowdy environment and openly declares that anyone who enters his theater can scream, yell, dance, and even issue false warnings of “Fire!” As the owner of the theater, that would be his right, just as it would be the right of people to refrain from patronizing that theater.

Thus, freedom of speech is ultimately grounded in private-property rights. The owner of a newspaper has the right to publish or not publish materials because the newspaper belongs to him. As the owner of the newspaper, he has the right to refuse anyone’s request to communicate through his newspaper. No one has a duty to furnish someone else the means by which he is able to communicate his views. If one person can’t persuade another to publish his views, he is free to open his own newspaper.

I happen to agree with him. Freedom gives us rights and property owners give us rights on their private property. If someone is injured, the property owner is liable... not the guy screaming fire... that is, unless it is prohibited by the property owner... then the guy breaking the rules is at fault and can be sued for the damages. If someone is killed because of his actions... count it like you would negligent manslaughter or something. But as much as we may not like it... freedom means we have to put up with the bad with the good.

Like the 2nd Amendment, the 1st Amendment is absolute.

jerg_064 · May 22, 2009

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Washintonian_For_Liberty wrote:

But as much as we may not like it... freedom means we have to put up with the bad with the good.

+1.
The phrase "freedom isn't free" is about more than fighting wars. We have to put up with criminals and idiots as well.
If we were truly free, then the 2A would help rid and deter the criminals more than any police force. The idiots would thin themselves out over time as things aren't being handed to them which in turn makes them adopt personal responsibility or parish.

Task Force 16 · May 23, 2009

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We might also need to take into consideration, that back in the days the Bill of Rights were authored and ratified, those that committed capital offenses (such as murder, rape, and kidnapping),were usually hung shortly after their conviction.Lesser crimes were not considered felonies at that time and the RTKBA was not denied to those that committed the lesser violations.

Today, Felons are denied their 2A rights regardless of whither their crimes were of violant nature or not. I beleive that we should get back to punishing those that commit the violant crimes as they did before. And obolish restrictions on firearms all together.

I agree with jorg_064, "freedom isn't free", and it isn't without risks. As a free man, one has the freedom to go off into the wilderness to live alone if he chooses (and men did this), but he must except the risk to his own safety in doing so. If we are to truely live as a free society, we have to be willing to except the risk associated with that freedom.

PT111 · May 23, 2009

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I happen to agree with him. Freedom gives us rights and property owners give us rights on their private property. If someone is injured, the property owner is liable... not the guy screaming fire... that is, unless it is prohibited by the property owner... then the guy breaking the rules is at fault and can be sued for the damages. If someone is killed because of his actions... count it like you would negligent manslaughter or something. But as much as we may not like it... freedom means we have to put up with the bad with the good.

This sounds good until it actually happens. Even if the theater owner prohibits yelling fire and a person is injured the owner will still be sued and probably found liable. No greater example of this exists than 9/11 where the hijackers, although the airlines prohibited every action of theirs is still liable and only after the government stepped in was able to prevent total destruction of the industry by lawsuits and liability judgements.

It is not against the law to yell fire in a crowded theater, rather it is illegal to incite fear and the probability that people will be harmed. A comic or actor can stand on the stage and yell fire as part of their act and no one should be alarmed. However someone standing at the rear doorway will cause all kinds of alarm and confusion. Then what if there is an actual fire and the owner is trying to get everyone out orderly and soemone causes confusion. Nothing is absolute.

Washintonian_For_Liberty · May 23, 2009

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PT111 wrote:

I happen to agree with him. Freedom gives us rights and property owners give us rights on their private property. If someone is injured, the property owner is liable... not the guy screaming fire... that is, unless it is prohibited by the property owner... then the guy breaking the rules is at fault and can be sued for the damages. If someone is killed because of his actions... count it like you would negligent manslaughter or something. But as much as we may not like it... freedom means we have to put up with the bad with the good.

Click to expand...

This sounds good until it actually happens. Even if the theater owner prohibits yelling fire and a person is injured the owner will still be sued and probably found liable. No greater example of this exists than 9/11 where the hijackers, although the airlines prohibited every action of theirs is still liable and only after the government stepped in was able to prevent total destruction of the industry by lawsuits and liability judgements.

It is not against the law to yell fire in a crowded theater, rather it is illegal to incite fear and the probability that people will be harmed. A comic or actor can stand on the stage and yell fire as part of their act and no one should be alarmed. However someone standing at the rear doorway will cause all kinds of alarm and confusion. Then what if there is an actual fire and the owner is trying to get everyone out orderly and soemone causes confusion. Nothing is absolute.

Those issues you cite are tort law issues. We have an epidemic of idiot judges letting anything pass as injury these days. Nothing is considered 'reasonable measures' when it comes to prohibiting certain behaviors by property owners.... and even waivers signed by the litigant are ignored in favor of million dollar settlements issued by judges trying to be activists.

Making something a crime because it MIGHT cause harm is wrong and unconstitutional. We have to roll this stuff back or accept that we'll either need a war to get rid of it eventually... or accept living in tyranny.

marine77 · May 23, 2009

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Task Force 16 wrote:

Today, Felons are denied their 2A rights regardless of whither their crimes were of violant nature or not. I beleive that we should get back to punishing those that commit the violant crimes as they did before. And obolish restrictions on firearms all together.

Not only felons, but those who commit misdemeanors too. What about Sen.

Lautenburg's legislation back during the Clinton days? If your convicted of hitting

your spouse (and also anybody else who is family it seems these days) then you

lose your 2A rights.

MSC 45ACP · May 24, 2009

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marine77 wrote:

Task Force 16 wrote:

Today, Felons are denied their 2A rights regardless of whither their crimes were of violant nature or not. I beleive that we should get back to punishing those that commit the violant crimes as they did before. And obolish restrictions on firearms all together.

Not only felons, but those who commit misdemeanors too. What about Sen.

Lautenburg's legislation back during the Clinton days? If your convicted of hitting

your spouse (and also anybody else who is family it seems these days) then you

lose your 2A rights.

If you've bought a gun or applied for a CHL recently, you would have noticed the questions about having a restraining order or conviction for spousal abuse. They are automatic disqualifiers for buying a firearm or getting a CHL...

Thundar · May 24, 2009

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My gun rights are absolute. If you do not believe me try to take my guns away from me.

virgil47 · May 26, 2009

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Citizen wrote:

Washintonian_For_Liberty wrote:

I believe the term is 'inalienable right'. I believe itmeans thatit is a natural right of all persons to be secure and able to protect themselves.

You won't see this on Wikipeida under 'Natural Rights' nor under Natural and Legal rights' as Wikipedia is written by a bunch of left wingers who don't believe that self defense is a right.

But as a natural right, I believe it is an absolute right. And therefore, the 2A is also an absolute right.

Click to expand...

I tend more in this direction (above quote).

Dave, don't forget to look at the prior restraint angle when it comes to guns. Some of the "exceptions" you mentioned for other rights are not restrictions on a right. They are more penalties, after the fact, for misusing the freedom.

For example, "freedom of speech does not extend to yelling fire...theater." This is one thrown up at us frequently. However, the enforcement only occurs after the transgression. If government were to apply gun-law type prior restraint, they would cut out everone's tongue before they entered the theater.

I believe that anyone does have the right to yell fire in a theater! The caveat is that there must be a fire. Even if the theater owner says that you can not yell fire you can still yell fire if there is a fire and it could endanger the lives of yourself or others.

As another quirky example, "religious freedom...human or animal sacrifice." Were the government to apply gun-law type prior restraint, clergy would be backround checkedforever having officiated at a ritual sacrifice before beingrecognized to perform marriages.Church altars would be licensed and subject tounannounced inspections andtesting for blood.

I'll go with "unalienable right". And that it does not need any prior restraint except on the insane. Just limit it to the same degree as the examples above. No hunting with rifles in certain areas. No reckless discharges. No threatening. Etc.,etc. Just penalize the misusesof the right.

Other than my above observation I agree.

Pagan · May 26, 2009

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The only rights any person has, are those they are willing to fight for; in the courts or on the battlefield, that is absolute.

Alexcabbie · May 26, 2009

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The "militia" clause in the 2A means (according to my interpretation) that we Citizens have the right to keep and bear any weapon up to and including a fully automatic assault rifle that woud be carried by a modern light infantryman. (which is why I am not sitting on the edge of my chair waiting for Obama to appoint me to SCOTUS)

Flintlock · May 27, 2009

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Consider some of the verbiage contained in the BOR and tell me what it sounds like to you...

or prohibiting the free exercise thereof; or abridging the freedom

shall not be infringed.

without the consent of the Owner

shall not be violated

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

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Those folks,are absolute terms.

Washintonian_For_Liberty · May 27, 2009

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Flintlock wrote:

Consider some of the verbiage contained in the BOR and tell me what it sounds like to you...

or prohibiting the free exercise thereof; or abridging the freedom

shall not be infringed.

without the consent of the Owner

shall not be violated

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

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Those folks,are absolute terms.

Not according to Liberals... remember, in their world, there are no absolutes.

Philosophy 101: Is the 2A an "absolute" or "fundamental" right?

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