Karl_Kleinpa…@cs.cmu.edu writes:
>gbysh…@uxa.cso.uiuc.edu writes:
>> Second, even if this is true, it does make a difference whether
>> or not such rights are protected.
>I confess to wondering openly how a right, recognized as existing
>(whether pre-existing, or defined into existence at some explicit
>point), can then be "unprotected." To say "the right exists but is
>not protected" is oxymoronic, isn’t it? An unprotected right might as
>well not exist — that is, it doesn’t exist _in_practice_, if
>enforcement of the right is unavailable.
If I understand this paragraph correctly, it is _precisely_ my
own point. Certainly I fully agree with the last sentence.
The point is that, even if I were to recognize some rights as
‘natural’ or ‘god-given’ or otherwise pre-existing, this would
give, at best, a rather cold comfort if my political system were
not to recognize and protect these rights. If I have a ‘natural’
right to freedom of speech, but am executed for exercising it,
then my ‘natural’ right has done very little work.
[...]
>> Of course, the courts may weigh rights against "compelling
>> state interest", but this is something special.
>> The most obvious "compelling state interest" is the very
>> existence of the state. Certain actions may threaten the
>> existence of the state — and therefore the protection of
>> all Constitutionally recognized rights — and thus may not
>> be protected.
>Honestly, though self-consistent, this explanation is nauseating.
>It’s the government’s argument for every gun ban ever enacted.
>"Mr Justice, the United States’ compelling state interest in its own
>preservation is fundamentally at odds with the presence of arms in the
>hands of the citizenry. An armed citizenry may stand violently in the
>way of our Great Society’s protection of underprivileged youths’
>rights. We ask declaratory judgment that the keeping and bearing of
>arms is not a protected right."
I’d just point out that this is a poorly-constructed example.
I’m not aware of anyone who argues that the courts may simply
annul the constitution. As I understand it (and I am, again,
open to correction, here), "compelling state interest" does
not allow the broad erasure of any Constitutionally-protected
rights, but only certain narrowly-drawn distinctions.
(As this is appearing in *.guns groups, I should mention that
I am not a gun owner (though I have fired pistols, rifles, and
shotguns in target situations), and (at least sometimes) think
that we might all be better off if there were fewer guns in
circulation. Nonetheless, I am generally opposed to ‘gun bans’
for at least practical reasons (which does not disallow others):
‘gun bans’ have not been shown to reduce the number of firearms
in circulation or to reduce the number of firearms in the hands
of criminals, and are therefore stupid and pointless, if nothing
else. This is, of course, all pure personal opinion.)
In my opinion (which is worth just what you’re paying for it,
if not less), the current ‘assault weapons ban’ (and, indeed,
all gun control legislation that I know of) is _not_
Constitutional, because it is not sufficiently narrowly-
drawn to meet any meaningful standard of "compelling state
interest".
>Be still, my wretching stomach.
>If that’s the price of the state’s existence, the state be damned.
And this is just the difficult question with which people
must struggle: how do we balance the need for the existence
of some state (in order to protect our rights) with the fact
that the existence of any state will mean at least some
minimal reining in of some of our rights.
There are times (eg, 1776) and places (eg, the thirteen
colonies) at which people (eg, the signers of the Declaration
of Independence and those who followed them) come to the
conclusion that this balance is no longer being maintained,
but has swung to far toward the side of state power. In such
cases, people may conclude that the state is no longer worth
preserving. In short, they conclude that "the state (as it
exists) be damned."
I would only note that, IMO, there are no easy answers to
maintaining this balance. I think that the U.S. Constitution
and the courts have done quite a good job of maintaining it
(though there are, no doubt, others who would disagree).
Finally, a question for absolutists: if you deny the
possibility of "compelling state interest" with respect
to bearing arms, are you willing to be consistent and deny
it in all other cases, as well? If so, you may find that
you have denied the possible existence of even a mimimal
state. (There is nothing necessarily wrong with this
position, but it is one that few people seem willing
consistently to affirm; the "state of nature" is one that
few find particularly appealing.)
–
Gregory Byshenk | The University? Hah! Half the time
gbysh…@uxa.cso.uiuc.edu | *I’m* not responsible for my opinions!
University of Illinois at Urbana-Champaign – Department of Philosophy
"Says Red Molly to James: ‘That’s a fine motorbike…’" R.T.