No, I’m not crazy, just bear with me for a moment.
We all know that modern governments are comprised almost entirely of power-hungry statists. We know that when a new law is considered, there is zero obligation for the government to justify why it has the power to enact this law, but rather, the obligation rests entirely on the public to attempt to prove why it does not (and even then, they usually just ignore it). When you speak to a non-libertarian about “natural law” they usually look at you as if you told them you had been abducted by aliens.
On the fourth of July, a lot of attention is paid to the Declaration of Independence, and for good reason. It is essentially the founding document of our country. The entire philosophy behind the American experiment can be summed up in the most famous sentence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
There are a lot of significant aspects of that sentence that are largely ignored by the government today. Most neocons will concentrate on the “by their Creator” aspect, which is important to be sure. But I would suggest that the most important two words are “among these.”
The use of the words “among these” rather than “and they are” or “which are” or something like that clearly states that our God-given rights are not limited to life, liberty, and the pursuit of happiness. Those aren’t our only unalienable rights, they are just a few examples of them. This is where natural law comes into play. The right to private property, for instance, is a natural right, despite not appearing in the declaration of independence (or explicitly in the constitution, for that matter). At the time, the founders were obviously relying on the common sense of the American people to understand that a document listing all of your rights would be ridiculous and unnecessary. You see this in the constitution as well, which specifically includes the ninth amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Unfortunately, this amendment is typically ignored by the statists in power today. If only the founders knew what was coming, they might have taken the extra time to explicitly list every imaginable right and explicitly forbid the government from abridging them. Although, if the second amendment is any indication, that really wouldn’t stop them at all.
To summarize: The use of the words “among these” in the Declaration of Independence clearly indicates that the founders were making no attempt to limit the scope of natural rights to “life, liberty, and the pursuit of happiness” but rather were just providing examples of some of our natural rights.
I mean, I agree with your theory so far as those are not the only unalienable rights, but this sounds an awful lot like you putting the words "the right to private property is an unalienable right" in the founding fathers' mouths.
And even if they had made this mythical list of every right we have, we're over 200 years later, and plenty of things have changed with regards to technology and invention, wouldn't we have to do essentially what we're doing now, extrapolating what they might have meant from what we know they said?
I mean, I agree with your theory so far as those are not the only unalienable rights, but this sounds an awful lot like you putting the words "the right to private property is an unalienable right" in the founding fathers' mouths.
Well, the basic tenet of natural law is that you have the right to your own body (life, liberty) and the right to the fruits of your own labor (property, pursuit of happiness).
It is impossible to have a "right" to specific goods and services, because then you are laying a claim on someone else's life, liberty, property, etc.
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
It's a good thing they didn't have that mythical list, else they might have enshrined the unalienable right to own slaves (since most of the founding fathers actually believed in racial superiority). I think they put "among these" not only to provide for some other unalienable right that a "power-hungry government" might be tempted to do without (although I would definitely not say that every government is power-hungry), but also - and mostly - as a testament to their own faillability. They know they're not perfect, that they can't foresee events that would rise a hundred or a thousand years later, and so they provided for the future generations by remaining deliberately vague. That's also why your Constitution, like pretty much all the constitutions in the world, is, you know... amendable.
Also, the 2nd Amendment is really not as explicit as you may think.
-- When you have nothing to say, quote yourself ~ Solfadore
Also, the 2nd Amendment is really not as explicit as you may think.
SHALL NOT BE INFRINGED
sounds pretty explicit to me
Also, many of the founders were abolitionists. The DOI originally DID say "life, liberty, and property" but they didn't like the word property in there because they foresaw the southern states using that as a basis to keep slavery legal forever.
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
Well, that depends on the meaning of the word "shall," does it not? If "shall not" means "Congress may not," then we may have something, but if "shall not" only means "Congress will not, because it's stupid," then we may not have anything. A very tricky word indeed, just like the word "is."
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Congratulations to SuperNiceDog, Guru Winner, who was smart enough to pick your 7 time champion, Link.
Also, the 2nd Amendment is really not as explicit as you may think.
SHALL NOT BE INFRINGED
sounds pretty explicit to me
Also, many of the founders were abolitionists. The DOI originally DID say "life, liberty, and property" but they didn't like the word property in there because they foresaw the southern states using that as a basis to keep slavery legal forever.
2nd Amendment stuff: you forget the first part of the amendment. "A well regulated Militia, being necessary to the security of a free State, ..." One could interpret this as saying that the right to keep and bear arms is unalienable only so long as a well regulated Militia is necessary to the security of a free state, which it obviously isn't today. I guess others could hold that we just don't care about the context and that the constitution is the constitution, but no matter which way you side, it's really not that explicit. Do away with the first part of the amendment, and the right to bear arms suddenly becomes a completely unalienable right. Which makes me wonder, then, why they decided to include that first part if they wanted that right to remain quasi-absolute.
For the original wording of the DOI, it's a very interesting detail. That would lead me to conclude, then, that property is not as absolute an unalienable right as the other stuff - since the founding fathers actually considered inserting it and later decided not to.
Slavery was enshrined in various parts of the original constitution, by the way. The whole thing had to be amended for it to be done away from.
-- When you have nothing to say, quote yourself ~ Solfadore
2nd Amendment stuff: you forget the first part of the amendment. "A well regulated Militia, being necessary to the security of a free State, ..." One could interpret this as saying that the right to keep and bear arms is unalienable only so long as a well regulated Militia is necessary to the security of a free state, which it obviously isn't today.
Except the Supreme Court has already ruled that this is incorrect and that the OBVIOUS intent of the founders was for this to apply to individuals.
Which makes me wonder, then, why they decided to include that first part if they wanted that right to remain quasi-absolute.
At the time, the militia was comprised of regular citizens who simply owned guns and showed up to defend their towns. It wasn't some special arm of the organized standing army (which isn't even supposed to exist, remember?) like the National Guard or some such thing.
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
Well, that depends on the meaning of the word "shall," does it not? If "shall not" means "Congress may not," then we may have something, but if "shall not" only means "Congress will not, because it's stupid," then we may not have anything. A very tricky word indeed, just like the word "is."
Pretty sure the point of the bill of rights was to limit the power of the federal government, not just to provide helpful suggestions. I mean, the first amendment is worded the same way...
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
considering the phrase was almost directly ripped off of John Locke I doubt that much thought was put into the wording TBH.
It is interesting though that Jefferson chose to edit the right to property to the pursuit of happiness, probably because he was pursuing an anti-slavery position.
-- The Kinda Real Deal MILLIONS OF POSTS, MILLIONS OF POSTS The Primetime Posting Hours Players MILLIONS OF POSTS
Well, that depends on the meaning of the word "shall," does it not? If "shall not" means "Congress may not," then we may have something, but if "shall not" only means "Congress will not, because it's stupid," then we may not have anything. A very tricky word indeed, just like the word "is."
Pretty sure the point of the bill of rights was to limit the power of the federal government, not just to provide helpful suggestions. I mean, the first amendment is worded the same way...
Yeah they were, but the courts by this point have whittled the 10th and 9th amendments down to being more or less meaningless. (though in the case of the 10th amendment the 14th DOES Pretty much nullify it)
-- The Kinda Real Deal MILLIONS OF POSTS, MILLIONS OF POSTS The Primetime Posting Hours Players MILLIONS OF POSTS
Ah, but the first amendment gives no rationale for why Congress may not do x, whereas the second amendment does. The difference suggests that perhaps the framers intended the second meaning of "shall." Darn it Obama, why can't you do anything funny like the last 2 presidents? You're also a top 2 law school graduate, you can tell us about the meaning of the word "is" too!
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Congratulations to SuperNiceDog, Guru Winner, who was smart enough to pick your 7 time champion, Link.
Ah, but the first amendment gives no rationale for why Congress may not do x, whereas the second amendment does. The difference suggests that perhaps the framers intended the second meaning of "shall." Darn it Obama, why can't you do anything funny like the last 2 presidents? You're also a top 2 law school graduate, you can tell us about the meaning of the word "is" too!
Well, he's had Eric Holder come out with the oh-so-hilarious "the constitution guarantees you due process, not necessarily judicial process, therefore our method of Obama single-handedly deciding who gets killed in a drone strike is totally constitutional because there's a process involved (we just aren't going to tell you what it is, that's classified)."
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
Except the Supreme Court has already ruled that this is incorrect and that the OBVIOUS intent of the founders was for this to apply to individuals.
Which makes me wonder, then, why they decided to include that first part if they wanted that right to remain quasi-absolute.
At the time, the militia was comprised of regular citizens who simply owned guns and showed up to defend their towns. It wasn't some special arm of the organized standing army (which isn't even supposed to exist, remember?) like the National Guard or some such thing.
The Supreme Court ruled that 5-4 (with the four judges against it adopting the perspective I just outlined), so it's not as OBVIOUS as you may think. I'm not saying that my explanation is the only correct one - just that it's not as clear-cut as some people make it to be.
My second point was that if the founding fathers had intended for the right to be absolute, they would've done away with the first part. "The right of the people to keep and bear arms shall not be infringed": much more effective than what they had at protecting an unalienable right. IMO, the first part is really an attempt from them to contextualize the right: "This is why we enshrine this and this is how we intend and foresee the right to be used." When that context is no longer applicable, then, it is my belief that this puts the right into question.
-- When you have nothing to say, quote yourself ~ Solfadore
The Supreme Court ruled that 5-4 (with the four judges against it adopting the perspective I just outlined), so it's not as OBVIOUS as you may think. I'm not saying that my explanation is the only correct one - just that it's not as clear-cut as some people make it to be.
Just because four people voted against it doesn't mean it isn't obvious. Just that four people don't care about what the constitution obviously says and want to rule over us like kings.
When that context is no longer applicable, then, it is my belief that this puts the right into question.
I would argue that it's more applicable now than ever. Only the threat isn't foreign.
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
K, well, this is were we part ways. Supreme Court justices are not power-hungry dictators that want to usurp control and rule the people with an iron fist. Although I might not have been clear in my interpretation - obviously, the 2nd Amendment applies for everyone, not just official militias. DC v. Heller made that plain enough, if it wasn't already. What I'm saying is that the 2nd Amendment is/should be applicable only so long as "a well-organized militia [is] necessary for the security of the State." My thesis is that it's no longer necessary, for threats foreign or internal.
As regards your second point, I would also disagree completely, but that's more of a libertarian vs. non-libertarian debate, which is best left for another time.
-- When you have nothing to say, quote yourself ~ Solfadore
What I'm saying is that the 2nd Amendment is/should be applicable only so long as "a well-organized militia [is] necessary for the security of the State." My thesis is that it's no longer necessary, for threats foreign or internal.
This is somewhat interesting. I disagree, but I'll be honest, I'll have to consider it more as I've never heard someone attempt to argue the issue from this perspective before. All I've ever heard is "The second amendment only applies to the militia and nowadays that means the national guard."
Here's something from the Heller decision though.
"(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28."
The federal government disarming the people in order to create a politicized standing army, you say? Well gee, it's a good thing THAT never happened!
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
My view is that the framers didn't mean to say, "as long as a militia is needed," but that "we are telling you that a militia is always needed, so you better always allow the means for it to exist."
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Congratulations to SuperNiceDog, Guru Winner, who was smart enough to pick your 7 time champion, Link.