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A Recipe For Eternal Flame

Let’s mix a gun control debate with a semantic debate, and see what happens. At issue here: Whether a pro-gun ruling in Heller would recognize a “new” Constitutional right. I’m still slogging through the comments, but so far this one is among the best (after the fold):

From the beginning of organized tournament chess, the rules included this provision: when a player succeeds in advancing his pawn to the last rank, he can promote it to “a piece of his choice”. At an international tournament around 1910, a weird thing happened: White chose to promote his pawn to a BLACK Bishop, thus preventing Black from claiming a draw by stalemate. The tournament director was forced to acknowledge that the rules, as written, allowed such queer promotions. The right to promote your pawn to a piece of the opposite color was as unheard-of as, say, gay marriage. Who would ever want to do such a thing? But the rules HAD ALWAYS PERMITTED IT, said the judge. It was not a “new” right.

The romantic myth behind judicial review is that there are NO “new” rights. In this romantic myth, the right to gay marriage was always inherent in the constitution of Massachusetts, but was not noticed until our Supreme Judicial Court bothered to look, a couple of years ago. The whole POINT of legal (as opposed to political) arguments is to demonstrate that the rules ALWAYS SAID you have the right to promote your pawn to a piece of the opposite color, marry a person of the same sex, or own a handgun.

Whether or not you subscribe to this mythology will determine your terminology, with respect to “new” rights. If you think The Law is some immutable Platonic ideal which humans perceive only imperfectly, then judges merely find EXISTING rights when they examine The Law and say things like: “Well what do you know! People ALWAYS had the right to put blogs up on the World-Wide-Web. The right was always there, even if the internet wasn’t.”

If you’re not quite so romantic — if you think The Law is in fact a fuzzy man-made thing with no independent existence outside the cave — then of course a right not previously acknowledged is a “new” right, made up by judges on the spot.

Both points of view are defensible. The only laughable thing is the sort of inconsistency which I suspect many gun enthusiasts (and many gay-rights activists) to be guilty of: the inconsistency which says “MY right was always there and the courts finally acknowledged it; YOUR right was recently just made up by activist judges.”

Cross-posted at Lean Left.

23 Responses to “A Recipe For Eternal Flame”

  1. Nomen Nescio Says:

    i’m getting sick of this argument, and i’m not even as far down in that comment thread as the one comment you pulled out here to highlight. i’m beginning to think i don’t want to put up with either one of the proposed sources of rights. what if i don’t want rights to be derived from laws, whether they be newly or originally so derived? what if i want laws to only and exclusively limit rights, never grant them, and for everything not specifically and carefully forbidden in law to remain my right by default?

  2. Sebastian Says:

    The Sebastian in that thread isn’t me, just FYI

  3. tgirsch Says:


    The problem is that some rights actually do require protection, insofar as governments are not the only ones who can infringe upon your rights.

    It’s not so much that rights are granted by the constitution; it’s more that they’re granted explicit protection. Which, again, is part of the reason for the 9A.

  4. Nomen Nescio Says:


    i agree that rights often require protection (even regulation, to keep one person’s rights from infringing another), but this doesn’t seem compatible with the notion of laws as giving rights or of courts as granting rights when interpreting the law. and if you want to speak of laws explicitly protecting rights, then the meaning of “the right of the people […] shall not be infringed” suddenly seems painfully clear. clearer and more stark, even, than i think i would like it to be.

  5. Xrlq Says:

    Both points of view are defensible. The only laughable thing is the sort of inconsistency which I suspect many gun enthusiasts (and many gay-rights activists) to be guilty of: the inconsistency which says “MY right was always there and the courts finally acknowledged it; YOUR right was recently just made up by activist judges.”

    This faux equivalency conveniently overlooks the oh-so-minor point that the written constitution actually says something about “people” having a “right” to keep and bear “arms,” while it says jack-spit about gay marriage. Nice try, though.

  6. Sebastian Says:

    I’m with Xlrq on this one. Even though I tend to support gay marriage, I’m not sure the constitution can be construed as requiring the state to provide it. I approve of a fairly expansive interpretation individual rights compared to most conservatives, but I think judges still need to be bound by the words of the constitution.

  7. Yu-Ain Gonnano Says:

    As to the distinction of a gov’t protecting a right means that you have it.

    I think it would be more properly phrased a “New Protection” of an “Old Right”.

  8. Lyle Says:

    Blowing smoke. When something you hate is clearly protected, you need some smoke to obscure it, so that you’re attacking something that is unclear, thereby throwing off the defense. That’s an age-old, and to me increasingly boring, tactic.

    Xrlq nailed it to the wall. There’s no more to be said about it.

  9. tgirsch Says:

    So the government can’t cut off your two uppermost limbs. Big deal! 🙂

    [I should note, once again, that I’m more or less ambivalent about 2A; I can’t be fairly described as either a “proponent” or an “opponent,” and have issues with the argumentative tactics used by both sides. I just thought that since semantic arguments and 2A arguments have a tendency to devolve into pissing contests in record time, the merger of the two would be particularly futile. Which, as it turns out, I was right about.

    And for what it’s worth, I didn’t find the comment I linked to be one that took sides in the debate, which is why I liked/linked it.]

  10. gattsuru Says:

    Yeah, even if you liked Goodridge‘s result, it was a pretty messily decided case. Lawrence had similar issues, although (for better or for worse) there happened to be other, significantly stronger arguments. Irritating stuff.

    Same faults as most claims of hypocrisy, though; it’s very easy to claim such things when you don’t understand your opponent’s position, and usually such a standpoint really only makes it clear how little your understand the entire argument or even your own position.

  11. Sebastian Says:

    I don’t agree with any philosophy of constitutional interpretation that just ignores the 9th amendment, but I think every jurist needs a theory about how to apply it. There are plenty of constitutional situations that just require the judgement of the judiciary. Where the text of the constitution is clear, they need to be bound to the text, but there needs to be a sensible philosophy for how to resolve the parts that are ambiguous. The traditional conservative method is to just ignore them, which I don’t think should be acceptable.

  12. Xrlq Says:

    And for what its worth, I didnt find the comment I linked to be one that took sides in the debate, which is why I liked/linked it.

    It clearly did, though. Any truly neutral comparison of gay marriage vs. guns has to take into account the fact that one alleged right is in the Constitution while the other is not.

  13. Phelps Says:

    We don’t get a “new right” to life every time a baby is born.

    We don’t get a new freedom of the press every time a new model of offset printer comes out, and we didn’t get a new freedom of the press when blogs started, either.

    We didn’t get a new freedom to bear arms every time a new gun game out. We always had it.

  14. Robert Says:

    The Second Amendment to the US Constitution recognizes a previously existing right of all human beings on the planet that ever have or will exist to have arms to protect and defend their lives and property. Not just guns, but spears, knives, cudgels, gouges, throttles, potato guns, catapults, lazers, tazers, mazers, et, et.

    And the biggest threat to that human right is the same organization and folks it always was: the government.

  15. ATLien Says:

    Exactly. The right existed before parliament (or congress), and is not granted by any prince or government.

  16. straightarrrow Says:

    Well, unless of course, there is a personal cost or risk, then the pragmatists will counsel you to bow to the master.

    Ain’t that right, pragmatists?

  17. John Hardin Says:

    Xrlq is making it painfully obvious why there was reluctance to include the Bill of Rights in the first place: that calling out certain Rights as specifically protected (such as the right to speak freely, or arm yourself) would lead to the belief that other Rights that exist but that weren’t specifically enumerated (such as the right to love and publicly commit your life to whoever you please) are open to infringement, restriction, regulation, …

  18. Xrlq Says:

    Sort of. The Ninth Amendment pretty well deals with the argument that just because a right isn’t enumerated, it must not exist. It does, however, say that the jury’s out of the alleged right is unenumerated. This gets a bit hairy when advocates of the unenumerated (alleged) right claim that (alleged) right is actually protected by the Constitution that doesn’t enumerate it, particularly when it’s a right no one in his right mind thought to exist in 1791 or before. It’s kinda hard for the people to “retain” a right they never had in the first place.

  19. Jeff Dege Says:

    Rights aren’t laws. They aren’t legal constructs. They are meta-legal constructs, which inspire the law (or resistance to it). Rights are inherent in our nature as human beings, independent of what we believe the law to be.

    Or, as Alexander Hamilton wrote:

    “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam in the whole volume of human nature by the hand of Divinity itself, and can never be erased or obscured by mortal power.”

    Our understanding of our rights is as imperfect as is our understanding of our nature, but neither our rights nor our nature change, as we gain in understanding or lose it in the pursuit of popular delusion.

  20. Xrlq Says:

    Legal rights, however, are laws, by definition. Certainly one can argue that in a law-free environment, the right of gays to redefine marriage to their fancy is every bit as fundamental as the right of everyone else to possess the means to protect themselves against a violent predator. But this is a thread about constitutional rights, as construed by the courts, not a purely abstract debate on what “rights” individuals should have independently of the law.

  21. Jeff Dege Says:

    We’re using the same word to refer to two different things. The ensuing semantic confusion is only to be expected.

    When Jefferson wrote:

    Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

    He wasn’t talking about legal rights.

  22. tgirsch Says:

    I’d be careful before heading down that road. Because it’s self evidently true that when the framers wrote “the right of the people to keep and bear arms shall not be infringed,” they weren’t talking about AR-15s. Hell, the revolver hadn’t even been invented yet.

  23. Jeff Dege Says:

    when the framers wrote … they werent talking about AR-15s

    When the framers wrote, civilian ownership of artillery, and even of warships, was commonplace.

Remember, I do this to entertain me, not you.

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