Constitutional Rights

[michaeledward]

Sorry if this has already been addressed, but I had to respond to this. There's no way that either group--gun owners or anti-gun control advocates--would qualify as a political minority group, at least not in the sense of civil rights. While the definition of what qualifies as a minority group deserving of special protection isn't exactly crystal clear, neither gun ownership or one's position on gun control would be as fundamental an aspect of one's self as are, say, race, religion, sex, or creed. This "fundamental self" explanation is, if I correctly recall from my Employment Discrimination course, the reasoning behind what categories are and aren't protected by the Civil Rights Act and Title VII, as opposed to the whole choice explanation (race and sex aren't choices, creed and religion are.) No matter how hot the political issue of gun ownership may get, it won't become something as "fundamental to self", if you will, to qualify one as a minority member.

A bit off-topic from the thread, I know, but I had to throw that out there.

RandomPhantom700 ... the language in this discussion has been, at times, less than clear, and I certainly have been at fault for my part in that.

I was attempting to draw a comparison between a mathematical minority and a political minority. This is not the way the argument is usually framed.

It appeared to me that some of the arguments of gun owners sound like the arguments of a political minority.

 

[Cruentus]

And ... the right of habeus corpus is not a 'minority right'. It is a universal right that applies to any and all individuals in our system of jurisprudence.



EDIT - Incidently, I do not mean to imply that currently the 2nd Amendment extends 'minority rights', either. Rather, I am pointing out that a minority of citizens currently exercise this right. I suppose, even fewer exercise habeus. I wonder how many would miss the 2nd Amendment if they needed, compared to who would miss habeus, if it was needed. - END EDIT

Right; I got your meaning by "minority" and I was using it in the same sense. And just like you argue that gun rights only apply to a minority of citizens who own guns, Habeus is only being used by a minority of citizens as well; those going through the justice system.

But, we NEED habeus for a free society right? Or, I could say, "If I am not doing anything wrong, then I don't need to worry about that right because I won't end up needing a fair trial." We have seen that argument in regards to wire tapping before, among other things, haven't we?

Similarly, if we have the right to exist, then we need self-defense to be considered an inalienable right as well. The right to bear arms in a world where arms exist is inseperable to the rights of self-defense.

Yet, only a "minority" of citizens exercise the right to bear arms, and an even bigger minority will ever need to exercise the right of self-defense. But, like Habeus, we need these rights to live in a free society.

So, what I was saying about intellectual integrity is not an attack on you, Micheal. I actually don't know what you are getting at or where you are going with this thread. But I do know that one can't with honesty advocate for one right (like Habaus) which will only be utilized by a smaller part of the population at any given time, but then support the removal of another (like gun rights) with the simple argument that since it won't be utilized by the majority of the population, it therefore wouldn't be missed.

Such an argument, I am thinking, lacks integrity.

 

[michaeledward]

Similarly, if we have the right to exist, then we need self-defense to be considered an inalienable right as well. The right to bear arms in a world where arms exist is inseperable to the rights of self-defense.

A logic bridge needs to be built between the two ideas here.

The right to exist is given and supported by the nation states that compose the United Nations.

If someone was attempting to deprive you of the right to exist, you could deprive that person of their right to exist.

Is the claim of a 'right' to self-defense, actually the claim to deprive another person to his/her right to exist?


And ... I don't know that I am convinced that my ability to defend myself is predicated upon the ownership of a firearm.


So ... first, we need to figure out if defending oneself to the point of eliminating anothers person right to exist qualifies as a 'right'. (Or as the UN Document states, a justification to prevent punishment for the act).

Then, if self-defense should be qualified as a 'right', why does it follow that a firearm is covered under that 'right'?

 

[dart68]

A logic bridge needs to be built between the two ideas here.

The right to exist is given and supported by the nation states that compose the United Nations.

If someone was attempting to deprive you of the right to exist, you could deprive that person of their right to exist.

Is the claim of a 'right' to self-defense, actually the claim to deprive another person to his/her right to exist?


And ... I don't know that I am convinced that my ability to defend myself is predicated upon the ownership of a firearm.


So ... first, we need to figure out if defending oneself to the point of eliminating anothers person right to exist qualifies as a 'right'. (Or as the UN Document states, a justification to prevent punishment for the act).

Then, if self-defense should be qualified as a 'right', why does it follow that a firearm is covered under that 'right'?

The right to self defense only extends to stopping the attacker by whatever reasonable means is necessary. Should the attacker die as a result of this is ancillary but you don't have the right to kill him.

A firearm is qualified under the right of self defense because for some it may be the only way to reasonably effect self defense. It is simply a tool but possibly the only one that may equalize a self defense situation.

 

[Cruentus]

First, not to split hairs here, but an "inalienable" right is given by no one (overlooking any metaphysical arguments here); it is simply a right that all human beings have. The UN or the US or any government for that matter does not grant us these rights; we have these already. They either choose to recognize them or not, protect them or not, or trounce on them or not. I know this may seem like splitting hairs, but I feel that it is important to be on the same page with this for the discussion.


So, the question is this: is self-defense an inalienable right (and if so what are the boundaries of that right), and where does the right to bear arms fall in line with this?

1. Is self-defense an inalienable right?

I explained this already, but I'll recap. We can assume that A. We have the right to exist. Since A is true, then we can assume that B. We have the right to protect our existence, hence "self-defense." This is a simple A to B conclusion that is true in its most rudimentary form, and most people will not disagree with this.

2. What is the boundaries of the right of self-defense?

Unlike the above supposition, this is where people will vary on agreement and opinion.

Like any right, the boundaries of that right are what is usually argued about. This is easiest to visualize when we look at our free speech rights. Did that person who interrupted the political speech to protest overstep his bounds? Or did the security overstep their bounds by not letting him speak? Can I tell a dirty joke at my job? Can I yell "fire" in the theater? And so on. You get the idea. These are discussions about boundaries. There aren't many people who will argue against the idea that the freedom to express ideas (free speech) is inalienable. The "right" is usually not what is debated, it is the boundaries of that right that is not always agreed upon.

It is clear that the boundaries of self-defense are where people will disagree. Some people will argue, for example, that you cross the boundary if you kill another in self-defense, regardless of circumstance, because you now infringe on that persons right to exist. I disagree with that, but again, this is a question of boundaries.

So, without going through all the possibilities here, I will simply explain my supposition as to where I think the boundaries of self-defense lie. Keep in mind, that laws may not agree with my supposition; this is just my personal opinion and philosophical argument on the matter.

Self-defense, as it applies to this discussion, is preventing (or stopping) another living thing (or person; we'll not discuss defense against animals and so forth to confuse the issue) from physically harming you (or another person that you are responsible for, but we will leave this out for simplicity as well). You are able to use a reasonable, equalizing force in order to do this. This means that if, let's say, a 12-year-old girl decides to punch and kick at me, I cannot shoot her in the face. This is not a reasonable, equalizing force given the threat. I can, however, restrain her and prevent her from harming me in a manner that would be reasonable and equalizing.

Can one kill or seriously injure another in self-defense? Yes. It is important to note that this isn't the primary goal, and that the goal is to stop the threat. But if death or serious harm occurs as a result of stopping the threat, then this is permitted as long as it was reasonable. This is because a person who is willing to initiate taking away the existence of another forgoes his right to exist and be safe. So, if a person has the ability, opportunity, and intent to cause another significant injury or death, then that person has effectively forgone his right to exist without the proposition of injury or death. This is why it would be O.K. for someone to shoot a knife wielding attacker who has intended to cause serious harm, for example, as that knife attacker has chosen to forgo his right to safety at the moment he chose to endanger another in a lethal manner.

To recap: the boundaries of "self-defense" lies within' using a reasonable and equalizing force.

3. Where do "gun rights" come in?

For as many disagreements there are about the boundaries of self-defense, the gun right portion is actually quite simple in comparison. This is because the opinions on the boundaries of self-defense will (or at least should) dictate the feelings on where gun rights come to play.

Going with my above supposition on the boundaries of self-defense, my position is quite simple here.

First, it is fair to say that one needs to be allowed the ability to exercise their inalienable rights. So, going back to free speech as an example, it would not be reasonable to say, " You can say what you want, but only in the privacy of your own home where no one can hear you." Or, "You can say what you want, so I won't infringe on your freedom of speech. But if you call the president or a congressperson a jerk, then you will be put in prison for 10 years." Obviously by suppressing the ability to exercise an inalienable right, or by penalizing someone for exercising a right is not respecting that right at all. So, you have to be freely enabled to exercise a right, otherwise it is an infringement and oppression.

That point made, you have to be freely able to use a reasonable equalizing force for your self-defense right to be un-infringed.

If you are attacked by multiple attackers, or attacked with a gun or a knife, or attacked in a lethal manner where you are not as physically capable as your attacker, then how can you use a reasonable equalizing force?

The only answer is a firearm.

That does not mean that all of self-defense boils down to using a gun. Obviously, things like situational awareness and avoidance would come first, and would dissuade most threats. But, you need to allow people to carry a weapon that could deliver a reasonable equalizing force. Otherwise, you are not respecting their inalienable right to self-defense.

So where the UN points out that because people have a right to "life," that self-defense then becomes a necessary extension of that right, I would argue that because self-defense is inalienable, being able to carry a firearm would be a necessary extension of that right.

As everyone can see, this belief regarding gun rights and self-defense rights is not that hard to understand, as it all follows a vary logical sequence. We run into problems when people disagree with the suppositions (usually regarding the boundaries of self-defense) or when people simply don't follow a logical sequence at all.

C.

 

[michaeledward]

First, not to split hairs here, but an "inalienable" right is given by no one (overlooking any metaphysical arguments here); it is simply a right that all human beings have. The UN or the US or any government for that matter does not grant us these rights; we have these already. They either choose to recognize them or not, protect them or not, or trounce on them or not. I know this may seem like splitting hairs, but I feel that it is important to be on the same page with this for the discussion.
.

Wow ... who has used the word "inalienable" to describe anything in this thread? Which "right" are you claiming to be "inalienable"?

And, you posit only two states for this mythical thing ... "Recognized" or "Trounced".

When those are the only choices presented, it appears to me an incomplete listing.

 

[michaeledward]

The right to self defense only extends to stopping the attacker by whatever reasonable means is necessary. Should the attacker die as a result of this is ancillary but you don't have the right to kill him.

dart68 ... this is the language, as I understand it, that was presented in the quoted United Nations article.

A firearm is qualified under the right of self defense because for some it may be the only way to reasonably effect self defense. It is simply a tool but possibly the only one that may equalize a self defense situation.

One key phrase in the presentation of this idea is ... "may be". I do not understand how one gets from "may be" to "inalienable".

 

[dart68]

dart68 ... this is the language, as I understand it, that was presented in the quoted United Nations article.




One key phrase in the presentation of this idea is ... "may be". I do not understand how one gets from "may be" to "inalienable".

I recently got my CCW here in Colorado. A part of the manditory gun safety class was self defense law.

Example: If an attacker comes at me with a baseball bat and when I shoot him he drops the bat and runs away and later dies, then I was defending myself. But if as he is running away I shoot and kill him, then I've just crossed the line from self defense to murder. Maybe this guy deserved to die, but who other than a jury has the right to say so. If this is the essence of the language in the UN article, then I agree.

I believe it is the right of self defense that is inalienable, not the tool used. However, if you restrict or outright ban a necessary tool (a firearm for this discussion) that allows you to exercise your right to self defense then you infringe on that inalienable right. That's the connection. In my opinion it make no difference if the tool is a knife, sword, or a gun. But as I stated before, a gun may be the only tool that a person can effectively use in some situations. In those situations if you take that tool away then you might as well write the epitaph for the victim.

 

[Gray Phoenix]

There are many gun owners that are very one dimensional. It seems to me, that people who have less to focus on tend to be the loudest.

I am what some would call a "gun nut". I am an NRA Endowment Member, and Firearms Instructor, and I own enough firearms to start my own store.

Most people would have to know me for years to find this out, because I am involved in so many things, I will not be focusing on this one piece of Bill of Rights. They are just as important as the next, and when one is tarnished, it effects the whole.

 

[Cruentus]

Wow ... who has used the word "inalienable" to describe anything in this thread? Which "right" are you claiming to be "inalienable"?

And, you posit only two states for this mythical thing ... "Recognized" or "Trounced".

When those are the only choices presented, it appears to me an incomplete listing.

If your talking about anything in the bill of rights, you are talking about what the founding fathers considered to be inalienable rights:

"the Framers believed there were antecedent principles, fundamental rights that did not depend on the will of the people or the will of the king."

"The premise that there are antecedent rights is also shown by the language of the Declaration of Independence. It uses the phrase "inalienable rights" for the antecedent rights. Inalienable rights do not depend on the will of the people or the will of the king."

http://webster.utahbar.org/barjourn...irginia.edu/jefferson/quotations/jeff0100.htm

http://etext.virginia.edu/jefferson/quotations/jeff0100.htm

http://etext.virginia.edu/jefferson/quotations/jeff0950.htm

Yes, inalienable rights. Rights that we have simply because we exist as human beings. Remember from high school American History class? The whole Debate between the founding fathers (Jefferson, Madison, etc.) about even making a "Bill of Rights" because exponents believed that this was only stating the obvious, that these rights are assumed because they are inalienable, and it isn't to be construed as the government "granting" us these rights because they do not belong to the government to "grant?" Remember that whole thing?

Yea. When we talk about the 2nd amendment we are talking about what the framers considered an inalienable right. And I am glad that the Jeffersonian side won and that we have our bill of rights; just because they are inalienable, that doesn't stop people from trying to trounce them, even when they are written down...

 

[Cruentus]

And, you posit only two states for this mythical thing ... "Recognized" or "Trounced".

When those are the only choices presented, it appears to me an incomplete listing.

Right... I said:

They either choose to recognize them or not, protect them or not, or trounce on them or not.

What other choices do governments have in regards to our inalienable rights (you know, those things you think are mythical)?

 

[5-0 Kenpo]

MichaelEdwards, I see that you haven't addressed the points in my last post, but let us move on anyway.

Here is another logic bridge for you, based on suppositions that were posited here:

1. If the ability to exist is a right, and,

2. If the ability to take away someone's right to exist can be justified in self-defense,

3. Then it follows that there can be justification to remove any right from a person with a justification.

I would say that based upon this logical sequence, there is no such thing as a right, because it could always be trumped by a justification, which in my opinion, is less than a right.

How about this as a better idea:

Everyone has the right to life, as long the right to life of others is not violated. If one person attempts to take away the right to life of another, the right of self-defense pre-empts the attacker's right to life.

Then for legallistic reasons, the defender must show how his right to self-defense pre-empted, or justifies, the attacker's right to life. But the basic competition is between rights, not just the justification of taking away a right.

 

[michaeledward]

I recently got my CCW here in Colorado. A part of the manditory gun safety class was self defense law.

Example: If an attacker comes at me with a baseball bat and when I shoot him he drops the bat and runs away and later dies, then I was defending myself. But if as he is running away I shoot and kill him, then I've just crossed the line from self defense to murder. Maybe this guy deserved to die, but who other than a jury has the right to say so. If this is the essence of the language in the UN article, then I agree.

I believe it is the right of self defense that is inalienable, not the tool used. However, if you restrict or outright ban a necessary tool (a firearm for this discussion) that allows you to exercise your right to self defense then you infringe on that inalienable right. That's the connection. In my opinion it make no difference if the tool is a knife, sword, or a gun. But as I stated before, a gun may be the only tool that a person can effectively use in some situations. In those situations if you take that tool away then you might as well write the epitaph for the victim.

What you describe in the third paragaraph as a 'right' (self-defense), is not recognized by the laws of the countries around the world as a 'right'; inalienable or otherwise.

That you choose to believe it is, really, irrelevant. The laws do not support your belief.

The language of 'inalienable right' shows up ...

How is an 'inalienable right' different from any other type of right?
Or are all rights inalienable?
Are there different degrees of rights?
If there are degrees of rights, are there greater rights and lesser rights?
If there are greater rights and lesser rights, what defines the line between them?
If there things that are not rights, but instead, let us say privleges, what defines the line between a right and a privlege?

It seems to me, that these questions hint at a continuum of rights, privleges and protection.

The laws of the nations around the world, place "self-defense" on that continuum in a place other than a 'right'.

It seems that may people seem to be yelling at me ~ that I don't understand ~ and it seems they keep hoping if they yell louder, they will break through my thick head. But, it is not my head that is needed to get through to ... alter the laws of the nations around the world.

 

[Monadnock]

Why are you talking about "other" countries? I'm not exactly an isolationist, but, who cares what other countries think of the right to self defense?

 

[Cruentus]

How about this as a better idea:

Everyone has the right to life, as long the right to life of others is not violated. If one person attempts to take away the right to life of another, the right of self-defense pre-empts the attacker's right to life.

Well, here is another way of looking at it:

We have inalienable rights, but by our actions we can forgo those rights.

For example, although I have the right to live safely, if I choose to jump off a building, I have for that moment forgone that right. I should have no reasonable expectation that I am not going to at least get injured from that action.

Further, if someone decides to rob a store at gunpoint, they have at that moment forgone their rights to exist and live safely because they have purposefully and threateningly endangered the lives of others. There should be no reasonable expectation that the robber won't get injured or killed if someone decides to defend himself.

 

[Cruentus]

How is an 'inalienable right' different from any other type of right?
Or are all rights inalienable?

An inalienable right is different then other rights as explained in the links I provided in my previous post.

The very foundation of government, therefore, rests on the inalienable rights of the people and of each individual composing their mass. The Declaration of Independence, written by Thomas Jefferson, is the fundamental statement of what government is and from what source it derives its powers. It begins with a summary of those inalienable rights that are the self-evident basis for a free society and for all the powers to protect those rights that a just government exercises.

Inalienable rights are self-evident. Our right to exist, our right to pursue life, liberty, and happiness are all self-evident; these are rights that we have regardless of whether a government system chooses to recognize it or not. Other rights that enable us to exist and pursue life, liberty and happiness (like freedom of speech, the right to assemble, and the right to defend ourselves) are also self-evident. These are detailed in our Bill of rights, BUT NOT GRANTED BY THE BILL OF RIGHTS. THis is an important distinction.

It is important to note that even if a government system did not detail a right in their constitution, or even if we had decided to not detail a bill of rights, we would still have these rights because they are SELF-EVIDENT. This is vitally important to understand.

However, when another country decides to not recognize an inalienable right, like self-defense for example, it makes most of us a bit skeptical that the country in question could actually be a free society. Most of us like living in a free society, and want to try to keep it that way.

 

[michaeledward]

Why are you talking about "other" countries? I'm not exactly an isolationist, but, who cares what other countries think of the right to self defense?

Michael, this thread was started with Andy Moynihan's "The UN doesn't believe in the right to self-defense" thread. It was split from that thread.

The posts that make up the first two pages or so of this thread were culled from that thread by a moderator. The moderator chose to title this spin-off thread "Constitutional Rights". Although it appears that I started this thread ... I did not. I did not name this thread.

I am still having that conversation ... maybe not everyone else is.

But, I suppose your comment begs the question ... How does the United States view the "right" of self-defense? Where in US law is self-defense defined, and how is it defined?

 

[Monadnock]

Michael, this thread was started with Andy Moynihan's "The UN doesn't believe in the right to self-defense" thread. It was split from that thread.

The posts that make up the first two pages or so of this thread were culled from that thread by a moderator. The moderator chose to title this spin-off thread "Constitutional Rights". Although it appears that I started this thread ... I did not. I did not name this thread.

I am still having that conversation ... maybe not everyone else is.

But, I suppose your comment begs the question ... How does the United States view the "right" of self-defense? Where in US law is self-defense defined, and how is it defined?

OK - gotcha.

Well, as far as the US, I know at most state levels, there are laws that restrict what level of force you can respond with. Generally, you shouldn't exceed that which was used against you. If you do, you have to show that you thought your life was in danger, or something to that effect.

But I also think that it extends to protecting your property as well. That mileage may vary. Some places will say you have to let them leave with your stuff, others may be more on your side.

At the Federal level, or in US law, I'm even less sure. But I know there is some quote somewhere about the right to life, liberty and the persuit of happiness. To me, right to life would mean that I can defend it by any means available. :shrug:

 

[michaeledward]

An inalienable right is different then other rights as explained in the links I provided in my previous post.
Inalienable rights are self-evident. Our right to exist, our right to pursue life, liberty, and happiness are all self-evident; these are rights that we have regardless of whether a government system chooses to recognize it or not. Other rights that enable us to exist and pursue life, liberty and happiness (like freedom of speech, the right to assemble, and the right to defend ourselves) are also self-evident. These are detailed in our Bill of rights, BUT NOT GRANTED BY THE BILL OF RIGHTS. THis is an important distinction.
It is important to note that even if a government system did not detail a right in their constitution, or even if we had decided to not detail a bill of rights, we would still have these rights because they are SELF-EVIDENT. This is vitally important to understand.
However, when another country decides to not recognize an inalienable right, like self-defense for example, it makes most of us a bit skeptical that the country in question could actually be a free society. Most of us like living in a free society, and want to try to keep it that way.

I think you are incorrect in your ascertion that the rights in the Bill of Rights are not 'Granted' by the Bill of Rights, but that they are 'inalienable'.
These two ideas are not interchangable. The Bill of Rights does define rights to people living in America. Those rights are granted by the State.

For instance, there is not an inalienable, self-evident right against being accused for the same crime twice. There is not an inalienable, self-evindent right to operate a free press. There is not an inalienable, self-evident right against quartering an army without compensation.

These rights are granted to the residents of a state, by the good will of the state, or in our case, by the consent of the governed.

 

[michaeledward]

But I know there is some quote somewhere about the right to life, liberty and the persuit of happiness. To me, right to life would mean that I can defend it by any means available.

I'm sure you know that is from the Declaration of Independence. An interesting question would be, does the Delcaration provide any basis for law in the United States.

And, in the second sentence I have included in the quote, you use a very important prepositional phrase: "To me,"

I understand that your attitude is shared by many posting here.

Legally, however, according to a survey by the United Nations, your right to life, does not extend to a right to take anothers' life in self-defense. The Country's surveyed did indicate that one would be exonerated from punishment; or justified in their actions which deprived another person to his right to life.

But ~ legally ~ the States have not granted a right to self-defense.

I get that people don't like this. But, it is what the law in the various States pronounce.


As you indicate, there are some laws in this country that do move toward a more firm legal standing in the event of self-defense (Castle Doctrine) .... but I'm not certain that is settled law in our own nation, either.