The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
Rights are a fascinating concept. While I agree with you practically that we definitely create the social contract that “gives” people rights, that’s not really how rights are conceptualized in law. In the Western conception, rights are, by definition, not “given”, they are “inalienable”, meaning that you have rights even if someone has taken away your practical ability to exercise them. The rights themselves, separate from your ability to exercise them, are indeed considered “inherent”. In the olden days, this was often codified or framed in terms of religion, but it doesn’t have to be. Calling rights “natural” or “self-evident” are other ways of framing their “inherent-ness”.
Of course, in reality it isn’t so simple. We separate “natural” and “derived” rights. There aren’t many natural rights. Things like the right to life, to self-determination, and to freedom of conscience are considered natural rights (in the West, anyway), while something like the 2nd amendment to the US Constitution would be considered a derived right. Derived rights, of course, are rather more subject to interpretation since they rely on a chain of reasoning from a more natural right, and that chain of reasoning is subject to challenge.
Except, that many black folk in the US did not have a right to life or self determination at the beginning. So even these “inherent” rights aren’t so inherent until society agrees to grant/create them.
They had the “right” but they weren’t able to exercise it. The moral wrongness of withholding their inherent right to life, etc. Is what created the moral impetus to free the slaves. It is a subtle but important difference. If rights are inherent, they can’t be removed without violating the moral fabric that those rights are based on. Thus, when a government removes the ability to exercise an inherent right, that is what makes that government’s action “wrong” and not just “different”.
I’m not buying that. Slavery has been a staple of civilizations all through history. There’s no universal law of nature that any being has any right to life, freedom or self-determination.
The “moral fabric” isn’t some universal constant either. It too is a function of society. In the U.S., for instance, in 1776 there was no moral problem with slavery. Time went by and morality in the country evolved such that slavery, for many, was no longer acceptable. But it wasn’t that the moral fabric of U.S. society was violated in 1776, it was just different in 1776.
Who knows, in another 100 years people might consider something that is normal today to be some huge violation of something that should be a human right.
Yup, fair enough. If I wasn’t clear, I’m not necessarily arguing that I believe in the concept of inherent rights. I’m an atheist, so I have a bit of trouble with it, too. Nonetheless, it has a very long tradition and underpins the modern concept of rights. At least conceptually, we lose something when we say that rights are contingent rather than inherent.
The concept of natural rights is great for people who believe in God and are arrogant enough to speak for him. Not so much for rational people.
The fact that our supposedly secular legal system is based around religious gobbledegook is something I try not to think about.