An Interesting Email Exchange

Ok, so I found it interesting, but I thought you might, too.

When I started The Fabulous Baker Boys, Swen Swenson of Coyote at the Dog Show was the first to comment (and the first to link), and he took exception to my characterization that "rights are whatever the majority says they are." Thus began an email exchange that ran the better part of a week. I asked him about it, and we decided that posting the exchange might be interesting to others, so here it is, my comments in blue, his in grey (and no, I don't mean anything by that color combination.)

Sent: Sunday, February 08, 2004 8:53 PM
Subject: RE: A right is what the majority believes it is.

Swen:

Thanks for the link.

Actually, that's the subject of an essay I wrote a while back. I didn't link it at the debate site, but if you'd like to read my reasoning, it's here:

http://smallestminority.blogspot.com/2003_05_11_smallestminority_archive.html#94367045

And you're right - it's a pragmatic view of the idea of rights. Idealism is all well and good, but not all that useful in the real world. Words on paper don't hold the idea - we hold it in our hearts.

A couple of posts above that one is a concise explanation of the idea, supposedly stated by Associate Justice Scalia, though I've never been able to find a definitive citation:

To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don't really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.

My purpose in blogging is to help in my small way to keep that abiding belief alive in those who hold it, and rekindle it in those who have let it die out. If we don't do that, once gone getting it back will be a bad, bloody business.

Kevin

Sent: Monday, February 09, 2004 7:34 PM
Subject: Re: A right is what the majority believes it is.

>>Idealism is all well and good, but not all that useful in the real world. Words on paper don't hold the idea - we hold it in our hearts.

And what is it we hold in our hearts if not idealism?

I understand what you are getting at, and I agree with you. But consider -- Encyclopedia.com offers this introduction to its definition of natural rights:
"Natural Rights -- political theory that maintains that an individual enters into society with certain basic rights and that no government can deny these rights." http://www.encyclopedia.com/html/n1/natrlrig.asp

So you see, I really am making a pretty quibbling point. *By definition*, no government or majority of people can deny your natural rights. You still have the right to life, liberty, and happiness, after they've stoned you to death. Cold comfort, I know. I think this is what Heinlein was getting at, that you may *enjoy* only the rights you are willing to fight for, and strong and intelligent enough to fight for successfully. After all, he was espousing the philosophy of a country that had put that philosophy into practice, where only those who had served in the military had full rights.

There would be little need to discuss natural rights, human rights, or whatever, if there weren't a distinct tendency by governments and various other entities to violate those rights. Yes, a majority can vote to violate your rights, just like a brutal dictator can do it on his whim, but in either case it is no less a violation of rights. So perhaps you might better say that you can only *exercise those rights* that a majority agree to.

Here, I think, is the rub: It's well and good to say you have 'certain basic rights', it's not so easy to say what those rights might be, and it is in defining our rights that all the problems arise. The old socialists argued that human rights included the right to a job, food and shelter, and medical care. Tangible things very different from 'life, liberty, and the pursuit of happiness'. You'll note that the constitution and amendments are vague throughout about other unenumerated rights held by the states and/or the people. A good part of that was because our constitutional framers couldn't agree on what constituted our rights. Oddly, we've never achieved a consensus since, nor do I expect we ever will.

So yes, pragmatically, our rights are *effectively* whatever a majority agree they are, but to put it quite this way is definitionally and philosophically awkward.

Cheers!

Swen

Sent: Tuesday, February 10, 2004 7:53 PM
Subject: Re: A right is what the majority believes it is.

Swen:

You're right, we're having an argument of philosophy. Do I believe I have an inherent right to be armed? I do. Do I believe I can exercise that right if society does not hold that ideal? I do not.

The problem I've got with many advocates of the right to arms is that they state, forcefully, that the Second Amendment protects an ABSOLUTE right to arms, and screw anybody who thinks otherwise. I hate to tell them, though, it does NOT. A cursory study of the legal history of the Second Amendment pretty much puts paid to that argument. The Second Amendment doesn't protect ANYTHING - only an abiding belief in the right to arms can do that, and that belief has been under attack from long before ratification of the Bill of Rights. The Second Amendment has simply provided a (rather steep) speed bump to the complete denial of the right, but hardly an impregnable barrier.

So to be semantically accurate I would have to say that the right to arms is a natural right, but governments CAN AND DO DENY IT. They can only SUCCESSFULLY deny it when the majority of the population does not hold the ideal in its heart. More accurately, they can only successfully deny it to the HONEST POPULATION when they do not hold the ideal. The criminal and the anarchist will exercise the right at the risk of sanction regardless.

Kevin

Sent: Wednesday, February 11, 2004 11:41 AM
Subject: Re: A right is what the majority believes it is.

>>So to be semantically accurate I would have to say that the right to arms is a natural right, but governments CAN AND DO DENY IT.

No. *By definition* a government can't deny your natural rights. However, governments do frequently *violate* them, hence the term 'human rights violation'.

>>Do I believe I have an inherent right to be armed? I do. Do I believe I can exercise that right if society does not hold that ideal? I do not.

I'd point out that throughout history there have been plenty of people who have exercised their natural rights despite prohibitions by government -- passing out bibles in an Islamic country comes to mind. Those folks know it's against the law, they know they may be caught and punished, or even killed. They also believe that they are answering to a higher authority. Likewise, I suspect there are a lot of folks in places like NYC who exercise their 2nd amendment right and their basic right to self-defense despite their society's denial of that ideal. They know they may be caught and punished, but perhaps their fear of criminals exceeds their fear of the law and they've made a simple, pragmatic decision.

Philosophically, I think you either believe you are 'endowed by your creator with certain unalienable rights' or you don't. If you do believe you have rights that have come from some *higher source* [and it doesn't have to be religious], how could you possibly argue that those rights should be submitted to the review of the unwashed masses? How could you even much care what society thinks? Is it *safe* to ignore society and follow your conscience? Of course not, never has been. But let's not forget the old rub about trading freedom for safety -- you will have neither.

I think I agree that there is no such thing as an absolute right. The right to bear arms should not give you the right to threaten or injure innocent people with them, any more than the right to free speech extends to shouting 'fire' in a crowded theater. [I would argue that the right to bear arms doesn't give you the right to run around like a lunatic playing vigilante either, an activity that seems to draw a lot of applause in some circles.] Bottom line, sometimes it comes down to whether you should follow your own conscience and common sense, or obey a law you know is foolishly, even dangerously wrong.

As in all things, we make our choices and we take our lumps.

Cheers!

Swen

Sent: Wednesday, February 11, 2004 6:55 PM
Subject: Re: A right is what the majority believes it is.

Swen:

Oy, semantics.

Denial vs. violation of natural rights: Um, the 9th Circuit Court of Appeals, being the portion of the government responsible for ensuring the legal protection of my right to arms, denies that I have one. However, to date the actual violations of my right have been relatively minor. (I live in Arizona, thankfully.)

Exercise of right: Pardon me if I was unclear. Do I believe I can FREELY exercise my right if society does not hold it dear? No, I do not. I exercise it at the risk of prosecution, persecution, or worse, or I don't exercise it at all.

Do I believe that I have an inherent right to arms? Indeed I do. "(H)ow could (I) possibly argue that those rights should be submitted to the review of the unwashed masses?" I'm not arguing that they SHOULD, I'm arguing that they ARE. Fait accompli. I don't have a choice in the matter, being but one voice among the "unwashed masses" that have decided that the right I believe in really isn't what I believe it is. Since the government that supposedly represents them has accepted (or imposed) that view regardless of the written guarantee, and that government has the overwhelming firepower to carry out whatever it wishes (see Waco, TX) then I have but four choices: Follow the law even though I disagree with it; violate the law, but keep a low profile and hope for the best; violate the law openly (ride in the front of the bus) and risk certain incarceration; or violate the law violently and die for my beliefs.

Given those four choices, I VERY MUCH care what the public believes, as I like not being dead or incarcerated.

My remaining options, then are either to live with the status quo, which is ever-dwindling individual rights or to be an activist to try to affect the beliefs of the "unwashed masses" and their representatives in government in order to change the direction we are traveling. I choose option B. I'm not "trading freedom for safety," I'm retaining my freedom so that I can work to recover the ability to freely exercise my inherent rights. The point may come where I decide to choose to violate the law and take my chances, or even violate the law and die for my beliefs, but I am not at either of those points - yet.

Is this helpful?

Kevin

Sent: Wednesday, February 11, 2004 10:53 PM
Subject: Re: A right is what the majority believes it is.

Sigh.

I concluded my first email to you: "So yes, pragmatically, our rights are *effectively* whatever a majority agree they are, but to put it quite this way is definitionally and philosophically awkward."

That, and only that was my disagreement with your original post and I believe I said from the first that it was only a minor quibble.

Cheers

Swen

Sent: Thursday, February 12, 2004 6:18 AM
Subject: Re: A right is what the majority believes it is.

Swen:

Yeah, but arguing about it is SO entertaining, isn't it? :-)

Look, my entire point is that if we don't AS A GROUP recognize the reality that we live in a pragmatic world, our view will end up marginalized (as it is most definitely becoming.) That's the reason I wrote that piece - as a wake-up call. Words have meaning, but as our exchange illustrates, unless we all agree on the meanings, any conversation we have will be useless. That's why discussing things with a gun-control proponent is so difficult. We use the same words, but they don't mean the same thing. And in my not-so-humble opinion, they understand that and use it on purpose to achieve their goals. That's why they've dropped "gun CONTROL" and switched to "gun SAFETY". But both terms, in their lexicon, mean "gun ELIMINATION."

The problem is there's not just two groups, us and them. There's three: us, them, and the majority of the pragmatic population that lives somewhere in between. We've got to reach those pragmatists, and spouting idealism - regardless of which side you're on - tends to chase them away. Our side is big on idealism. The gun control groups have learned that pragmatism works. Scare 'em with "assault weapons," "plastic guns," "cop-killer bullets," etc, etc. Doesn't matter whether anything they say is factually accurate, they just have to convince those in the middle that it's a pragmatic thing to do to eliminate the perceived threat.

Anyway, it's been interesting.

Kevin

Sent: Thursday, February 12, 2004 8:12 AM
Subject: Re: A right is what the majority believes it is.

>>Look, my entire point is that if we don't AS A GROUP recognize the reality that we live in a pragmatic world, our view will end up marginalized (as it is most definitely becoming.)

Absolutely. Can't eat all those principles and ideals. [A gripe I have with big 'L' Libertarians. Abolish the IRS indeed.] Although the bottom line I tend to draw is that some things are simply sacred and not to be trifled with -- like the Bill of Rights. That, I'll admit, is rooted in my gut, not my head. It's my gut feeling that you've got to take a stand on something, so it might as well be on principle. *However*, you are absolutely right. Principles are very personal and emotional things, and it's about impossible to get everyone together on what our principles should be. [Or even how we should verbally express them. Gad! Do you suppose the awkward construction of the 2nd amendment was due to similar problems? I bet it was.] Therefore, I'll argue that while we should always be guided by principle, we must act pragmatically.

From a pragmatic point of view though, with the proliferation of 'shall issue' CCWs and even the recent jaw-dropping proposal of Vermont-style carry in Colorado, I'm surprised you'd suggest that we're becoming more marginalized. It would appear to me that, shall we say, 'pragmatic gun rights'* have been on the ascent since CCW passed in Florida [well, okay, there was the little Brady mess in there], and 9/11 has given us an immense boost, sending a wake-up to a lot of people who thought the government could protect us.

*Here I should point out that while pragmatically, CCWs are a great advance in exercising our freedom, idealistically, licensing a natural right is an atrocious idea. For that reason, I'm mightily heartened by the new initiative in Colorado. One might even suggest that, by giving in a little on our ideals, in the form of CCW licensing, we've gotten a foot in the door to get back to a more ideal situation vis bearing arms. Give up a little in the short term to gain a lot more in the long. As you note, given the incrementalism gun banners are so fond of, I personally never would have believed I'd see the day when our congress critters would stand up in a state legislature and legitimately argue that the people should be able to bear arms. !What a concept!

Colorado's new initiative is, I think, a shining example of why it is better not to be too rigidly absolutist and idealistic. In the give and take of politics it is difficult to get anywhere if you won't compromise at all. Unfortunately, the record from the '60s, when GCA '68 was passed, to '80s, when we started making gains again in places like Florida, has been that any compromise on our part meant all give for us and all get for the gun controllers. That, I think, is what makes so many, including myself, so absolutist and unwilling to compromise.

Of course, whether one is willing to compromise depends a good deal on which direction we're moving. When it was 'Oh, it's a perfectly reasonable bit of gun control, give a little will ya?' Compromise started to sound like a dirty word. But now that it's 'The Brady Bill was a useless bit of tomfoolery, give us back that little bit' -- when *we* gain by the compromise, which we seem to be doing on occasion now -- it becomes a whole lot easier.

Bottom line, we've got a long way to go, but I think we're making progress on a number of fronts.

Cheers!

Swen

Sent: Thursday, February 12, 2004 8:12 PM
Subject: Re: A right is what the majority believes it is.

Swen:

Y'know, we should have blogged this.

And I'll retract that "more marginalized" comment. That was true without question up until, possibly, Florida's passage of CCW. There are signs that the pendulum may be starting a backward swing, but I'm going to remain vigilant.

Kevin

So, your thoughts?