Search This Blog


Sunday, December 23, 2012

The Right to Bear Arms and Other Alienable Rights

One of the things I find most frustrating in the discussion surrounding the 2nd Amendment in the last week is the conflation of Natural Rights and the human constructed documents designed to protect them. (Don't click on this link unless you want to read a poorly written exegesis on the inviolate nature of the 2nd Amendment)

I'm not a lawyer or a constitutional scholar, but there are some things that I do know.  One of them is that The Bill of Rights is not inviolate.

The Bill of Rights were not dictated by Yahweh and inscribed on papyrus in the consecrated blood of James Madison. The Bill of Rights was a negotiated settlement between the states in order to make the new Constitution more palatable to the anti-federalists.

The Bill of Rights is vital for our country and is largely what makes our country strong and good, but the rights are by no means sacrosanct.

They are not Human Rights.

Human rights,outlined in the Declaration of Independence, modified from the ideas posited by John Locke, including Life, Liberty, and Pursuit of Happiness are Inalienable.  In the perfect sense they cannot be modified or mitigated by inferior laws or the will of a government and if (or when) a government begins to infringe upon these rights, rather than protect them, we can and should rise up against the oppressive regime.

The Bill of Rights is not a listing of our inalienable rights.   The Bill of Rights is a living document of human construction that attempts to define the limits of government with concern to protecting our rights.  The Rights as they are outlined in our Bill of Rights, are rights of the people on which the government has agreed not to infringe, but they are not Inalienable, they are negotiated terms agreed upon by a people and their government.  They are, in fact, alienable, and are modified and curtailed regularly in order to protect the public good.

To argue the 2nd Amendment protection of the right to bear arms is inalienable is to willfully misunderstand the nature of the intent of the Bill of Rights.

We modify and mitigate the breadth of these amendments regularly.

We place limitations on speech, on religion, on the press, on assembly, and on petition.  

We understand that exigent circumstances abrogate our right to be secure against search.

We negotiate and reinterpret the definition of "cruel and unusual punishment" with regularity in this country.

We've thrown out the first half of the 7th Amendment, saying it doesn't apply to state courts.

The Supreme Court and conservatives in this country are actively chipping away at the 9th Amendment.

It is only the 2nd Amendment which we have decided to be inviolate.  This is just plain fucking stupid.

Oh yeah, and when did we decide that it would be inviolate?  2008.  It was only 4 years ago that the court decided that the 2nd Amendment meant that anybody could have any gun and that the even the states couldn't regulate armaments.  Prior to Heller, the court had been nearly silent on the 2nd Amendment for 200 years, only the 3rd Amendment has less case law.

For consistency's sake, those who want to argue that the 2nd Amendment is inviolate should also take up the mantle for all the other areas in our Bill of Rights where we have gone against the laws of man and nature in order to abrogate our rights.

  1. Jury Trials for all civil cases involving amounts greater than $20 -- Heller says the 2nd Amendment applies to the states, too, so why not the 7th!  -- Universal year-long jury duty for everybody!
  2. Fight for the right of SouthWest Native Americans to use Peyote for religious ceremonies and for Rastafarians to use sacramental marijuana.
  3. Reinstate the right of assholes to yell fire in a crowded theater.
  4. Fight to prevent schools from searching student backpacks!

Seriously, people.


  1. Thanks for the education on the Bill of Rights - much appreciated.

  2. The Bill of Rights is what made America different than any other country or society before it. It made the government subservient to the people for the first time in history. The Constitution did not do this. George Mason, the father of the Bill of Rights (and the 2nd Amendment--contrary to the belief that it was Madison) refused to sign the Constitution because it failed to abolish slavery and it put the Bill of Rights after the Constitution not before it. I don't think you really understand the Bill of Rights