Difference between rights and privilege?

[exavid]

The constitution does enumerate rights. Unfortunately it wasn't all that long after the ink dried on it before the government began infringing on many of those rights. Think whiskey rebellion. The Abe's abrogation of habeous corpus, and a general suspension of legal procedures during the Civil War. Much like the 'Patriot Act' today. In the case of gun rights as guaranteed by the constitution they've not only been infringed, denied and generally manipulated by legislation but by regulation of non-elected agencies of the executive branch. In this time of sundown on the USA as we know it, I'm not very sanguine about the chances of things getting much better. Good luck my younger friends I'm glad I got to live in the US in its golden days.

 

[forestdavegump]

Rights you are born with...the US Constitution verifies, confirms and supports that idea!
Privileges are given to you, usually by people that have strings attached as they want something from you in return.
Rights are FREE
Privileges COST!!! Usually a lot.
And keeping your Rights from the "privileged"(usually trying to take them away) do too!

Take the Constitution class from http://www.hillsdale.edu Rights God given or not.,they are also duties we accept with our rights. Rights and duties go hand in hand. We have the right to speak freely, so we have a duty to uphold those rights for all as per the Constitution. If you have a right and do not exercise it, you will lose it. Just like in Laws today, failure to speak up for your rights...loses you your rights. They feel it ain't that important to you. There is a sin of silence so to speak. While I feel that is wrong, that is the way the law makers and law fakers do it. WE THE PEOPLE.....need to to things like STAND and not sit on our laurels! The only rights you have are those your willing to protect!

 

[Davek1977]

I think the concept of rights were best summed up in the Declaration of Independence. "... that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

it may outline the concept, but the Declaration of Independence doesn't hold any power of law. The Constitution, however, does.

 

[DFWB]

Henschmen: well said, I think you've got me there.

 

[Tipro]

In the context of RKBA, the second amendment did not enumerate the right to keep and bear arms. The Bill of Rights specifically kept the federal government from exercising its power with respect to that right (not that it has really stopped the federal government in any substantial way, regulation of commerce my eye). In all other areas the states were considered sovereign, and the second amendment did not withhold the states from restricting the RKBA and the constitution held no sway over the states with respect to RKBA until the passage of the fourteenth amendment. Even then, the incorporation of the second amendment was not upheld in case law until McDonald v. Chicago in 2010.

Interestingly, the incorporation of the second amendment is based on the privileges and immunities clause of the fourteenth amendment. As important as I think McDonald v. Chicago is to the RKBA, I wonder if there is a future loophole in the implicit admission that the RKBA was incorporated as a privilege, not an extension of the natural right to self defence and self governance.

With all due respect, but you have it backwards. Soon after the 14th Amendment was passed, the Court passed on what is commonly known as the Slaugtherhouse cases. In essence, the Court here ruled that the privileges or immunities clause protected only those rights CREATED by the federal government, and did not protect those pre-existing rights, privileges, or immunities which pre-dated the federal government or its Constitution. Since the 2A clearly codifies what the framers thought was a pre-existing right, under the Slaughterhouse ruling, the privileges or immunities clause does not extend to the right to keep and bear arms.

Here's a quote from McDonald:

"Petitioners argue, however, that we should overrule those decisions [in Slaughterhouses' progeny] and hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others...but petitioners are unable to identify the Clause's full scope. Nor is there any consensus on that question among the scholars who agree that the Slaughter–House Cases' interpretation is flawed. We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter–House holding." McDonald v. City of Chicago, 130 S.Ct. 3020, 3030-31 (2010).

As you can see, the Court rejected using the privileges or immunities clause, and decided to incorporate the 2A under the Due Process clause of the 14th Amendment.

 

[henschman]

"Due process of law" does not fit into my definition of rights. Law is a creation of government. I believe that rights exist independently of any government or any legal system. However, I DO believe that the only legitimate role of any government (if you could even call it that once it has been truly reduced to this role) is to protect the rights of the individual.

Unfortunately, the fact is that all governments currently in existence have laws on the books that are completely legitimate according to their highest judicial authorities, yet are violations of people's natural and inalienable rights. It could be said that when these laws are enforced, it is done "with due process of law," but they are still violations of people's rights.

 

[pseudonymity]

As you can see, the Court rejected using the privileges or immunities clause, and decided to incorporate the 2A under the Due Process clause of the 14th Amendment.

Tipro, you are indeed correct and thank you for pointing that out.

As a NY resident I am cautiously optimistic about the future of gun control repeals here. I would certainly expect challenges to the NYC ban for instance, and also in the pistol permit process that gives arbritrary authority to county judges who are responsible for approving permits.

 

[Tipro]

"Due process of law" does not fit into my definition of rights. Law is a creation of government. I believe that rights exist independently of any government or any legal system. However, I DO believe that the only legitimate role of any government (if you could even call it that once it has been truly reduced to this role) is to protect the rights of the individual.

Unfortunately, the fact is that all governments currently in existence have laws on the books that are completely legitimate according to their highest judicial authorities, yet are violations of people's natural and inalienable rights. It could be said that when these laws are enforced, it is done "with due process of law," but they are still violations of people's rights.

I believe that government should both protect, and create rights.

Many of the rights we take for granted are in fact a creation of government, and cannot be said to exist before government, or without government. For example, the right to a grand jury (Amendment 5). Should the government not be creating this right? It can't if its only role is the protection of rights.

But I agree entirely with your 2nd paragraph, with a caveat.

The Due Process clause has been read to protect two aspects of due process: procedural DP, and substantive DP. Substantive DP is how the Court justifies incorporation of the bill of rights to the States, and we therefore have the due process clause to thank for the McDonald ruling.

 

[henschman]

I believe that government should both protect, and create rights.

Many of the rights we take for granted are in fact a creation of government, and cannot be said to exist before government, or without government. For example, the right to a grand jury (Amendment 5). Should the government not be creating this right? It can't if its only role is the protection of rights.

But I agree entirely with your 2nd paragraph, with a caveat.

The Due Process clause has been read to protect two aspects of due process: procedural DP, and substantive DP. Substantive DP is how the Court justifies incorporation of the bill of rights to the States, and we therefore have the due process clause to thank for the McDonald ruling.

I would say that the "right to a jury" is not really a new, government-created right... it is just a system put in place to help ensure that the government does not violate anyone's rights. It is a way of protecting people's pre-existing, inalienable right to be free from the initiation of force, and to ensure that governmental force is only used against people who are actually guilty of starting its use.

In other words, it is a method of making the judicial system more objective, which is necessary for a government to accomplish its legitimate role of protecting people's rights. I don't think a government could accomplish its legitimate role without such a system, since a non-objective judicial system would be a threat to people's rights.

As for substantive due process, I agree with you... certainly it has been applied with the result of protecting people's rights in many circumstances. However, I believe that there is plenty of governmental action that passes the Court's Due Process muster which is still a violation of people's rights.

 

[forestdavegump]

Miranda v. Arizona
These were rights we(people) had since (before even the Magna Carta)the country was created, since birth actually(natural law), but no one uses or exercises them or teaches them so.....we end up with this Miranda v. Arizona. Which is a good thing, but people still are buffaloed into not exercising their rights or using those rights. Who ever thought that the first amendment could allow you to talk or speak, by not talking. That does not even enter into the 5Th or 6Th amendments.
I don't feel the a government has the RIGHT to create rights or a right, our fore fathers knew that anything given to you by a government would be subject to change and it would then affect you the subjects. You are born with (God given) rights, you are given privileges. IE my kids have rights, I give and take away their privileges, ie car use, cell phone etc etc. If I support trying to take away rights that would be contradictory to me have those same rights. That being said living in a parents house is not a democracy, its is not anarchy either. It is a Monarchy or a Dictatorship and should be!
The government is operating way beyond the scope of government. They can't take away your rights!

 

[ATLDave]

THE FOLLOWING IS NOT LEGAL ADVICE:

It's great to see so many citizens passionately discussing their own legal philosophies. Again, though, I would caution anyone reading this thread that it's just a set of personal opinions of THR'ers, and not reflective of the state of law in America.

Ever since Oliver Wendel Holmes dismissed the notion of a "brooding omnipresence in the sky," natural law theories have been disfavored/discredited/dismissed in most American courts. There are lots of reasons for this, but foremost among them is that there is no place to look to determine what those natural rights are. That means any court doing natural rights jurisprudence is just ruling in whatever way the judge sees fit, with no constraints on his or her decisions. This whole issue came to a head in the 1930's during the New Deal, when activist judges wanted to strike down big chunks of the New Deal, while other judges who advocated judicial restraint argued that unelected judges shouldn't usurp the will of the people unless they have solid grounds beyond their personal intuition about which rights were inherent. (Yep, that's right - the original advocates of judicial restraint and only ruling based on what was actually in the constitution were liberals, and the original judicial activists were conservatives! True story, you can look it up.)

Anyway, my point is simply that this stuff is quite complicated. There's a reason that lawyers pay many tens of thousands of dollars to sit through three years of classes, then practice for even longer under the close supervision of more senior attorneys* before they know what they're doing. Everyone is entitled to their opinions on what the law ought to be, but the judge gets to tell you what the law is. Most judges would not be impressed by many of the legal theories advanced in this thread. Maybe they'd all be dead wrong, but just bear that in mind before you decide that your unalienable, natural, god-given, bestowed-at-birth rights trump a current statute, regulation, or body of case law.

Sorry for the long post.

*Or spend at least as many years getting their rears kicked by opposing attorneys.

 

[ilbob]

There is no real difference these days.

We crossed that line a long time ago when we started accepting the idea that government was going to decide whether we could paint our house, who could paint it, what color it can be painted, and pay a tax on top of all that for the privilege of painting our own home.

Now it is all about what level of permission is required before government allows us to do something.

 

[Tipro]

Everyone is entitled to their opinions on what the law ought to be, but the judge gets to tell you what the law is. Most judges would not be impressed by many of the legal theories advanced in this thread. Maybe they'd all be dead wrong, but just bear that in mind before you decide that your unalienable, natural, god-given, bestowed-at-birth rights trump a current statute, regulation, or body of case law.

I think the issue many of us have is that we feel through intuition or Godly blessings that we, as human beings, have certain dignities that it is immoral to strip away, and feel that we have a certain innate value that others should respect. Many of these intuitions are encapsulated in the United States Constitution, and its broad application and recognition of that instinctual desire for freedom is what makes it so venerable in the eyes of many. We look at the 1st, 2nd, 4th, 5th, 8th, 9th, 13th, 14th, 15th, 19th, and 26th Amendments, as well as the preamble, A.1 Sec. 9 C. 2, and other sections of the Constitution, and feel that it embodies many of those freedoms to which we justly feel entitled.

We then have a serious issue when another does not interpret those sections in the way we think they should be read. Not only b/c it is suspect for some Judge to render his reading that way, but because we know in our hearts that something which is OURS, something that belongs to ME, is being taken away by some person who doesn't even know me, has never met me, and worst of all, probably doesn't even dislike me.

Yes, some Judge interpreting only on natural rights wouldn't be bound by much other than his own conscience. However, it is the simple fact that many of what we feel are "Natural rights," or, those rights which we come by naturally, which are not given by anyone, and come free by the grace of God, that those rights are embodied in the Constitution, and then stripped away, which generates talk of "natural rights." No one here thinks that we should have no framework for government, and that some omniscient Judge will be presiding over the fates of all mankind with no guide except for "natural rights." The guide is the Constitution and its wording, and that just so happens to embody many "natural rights."

 

[ATLDave]

However, it is the simple fact that many of what we feel are "Natural rights," or, those rights which we come by naturally, which are not given by anyone, and come free by the grace of God, that those rights are embodied in the Constitution, and then stripped away, which generates talk of "natural rights." No one here thinks that we should have no framework for government, and that some omniscient Judge will be presiding over the fates of all mankind with no guide except for "natural rights." The guide is the Constitution and its wording, and that just so happens to embody many "natural rights."

Fair enough. Anyone is entitled to any set of opinions on the nature of rights that they wish. I was merely trying to provide a practical reminder that the legal system has moved a long distance from the natural rights theory, and that supposing natural rights to be the "way the world works" could lead to some very nasty surprises in court. As I stated, that may make the courts wrong - but it doesn't make their rulings any less binding!

While we're on the subject, though, do you think the Constitution captures all of the natural rights? Are there any that it omits? Are there any rights that it bestows on individuals that are not also natural rights? It strikes me that it would be rather extraordinary if, after thousands of years of human history when most or all of the enumerated rights were not recognized by most civilizations, suddenly one civilization got them all down on paper in a comparative flash, and didn't overshoot on any, either. Especially given the "intuition" that serves as the grounding for natural rights. Doesn't seem very likely to me.

 

[henschman]

There is plenty of room to argue and debate on how to specifically apply a system of natural rights, i.e. maximum correlative liberty... but if a country's entire judicial system were explicitly geared toward the goal of enforcing a system of rights in which everyone is entitled to the maximum amount of liberty that can be shared equally, it would be a much freer country than any which has ever existed.

As for the United States, with the Declaration, they were expressly founded on the theory of natural rights... but then when the next generation wrote the Constitution 20 years later, there was a lot more variety of ideas. There was everything from radical libertarians to strict authoritarians at the Constitutional Convention. Many of them didn't even believe in natural rights at all. The only mention of natural rights in the Constitution is an indirect reference in the 9th Amendment, which was added later to appease the supporters of natural rights.

Here's hoping someday a country can be founded that is expressly and noncontradictorally based on the idea of maximum correlative liberty. Until then, supporters of that idea will continue to try to achieve that ideal here in the United States.

ATLDave, do you mean to tell me that it was not "judicial activism" for the Court to throw out all prior precedent, and rule that the growth and consumption of grain on a man's own property constitutes interstate commerce, as in Wickard v. Filburn?! I've always regarded that decision as the quintessential example of judicial activism.

 

[ATLDave]

ATLDave, do you mean to tell me that it was not "judicial activism" for the Court to throw out all prior precedent, and rule that the private growing and consumption of grain on a man's own property constitutes interstate commerce, as in Wickard v. Filburn?! I've always regarded that decision as the quintessential example of judicial activism.

You understand me correctly. CONGRESS, composed of the duly-elected representatives of the people, had determined that home wheat influenced and therefore constituted interstate commerce. The judiciary was being restrained when it declined to disturb that decision.

Judicial activism is often used as a code-word for "decision with which I do not agree," or sometimes "decision that is not directly supported by a narrow textual reading of positive law." But those aren't the definition. An active judiciary is one that readily disturbs the actions of other branches and that creates new restrictions. A restrained judiciary is one which does the opposite. The activeness of the judiciary is not the same thing as whether it is left, right, or centrist in its politics, nor whether it favors individual liberty versus regulation. It's just about how it makes its decisions.

 

[brickeyee]

So if we were to apply this principle to weapons, you could only be denied the right to keep and bear upon conviction in a court of law with witnesses and evidence proving you to be danger to society.

That is exactly how it presently works in many cases.

Felons are not allowed to possess guns.

Accused, tried, convicted.
Rights removed.

It could be said that when these laws are enforced, it is done "with due process of law," but they are still violations of people's rights.

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Terminiello v. Chicago, 337 U.S. 1 (1949), Robert H. Jackson dissenting.

We still need laws to have a society that can operate.

 

[mortablunt]

The fundamental difference between a right and a privilege is that a right is something fundamental that cannot be given or denied; it must be freely expressed. Human rights: Freedom from oppression, bigotry, fear, and suffering. The right to shelter, sustenance, education, suffrage, equality, privacy, discretion, and the rights of the worker.

Privileges can be taken away, denied, and otherwise controlled. Permit carry, driving, work benefits, living in a good country, and many other things and privileges. They are not inherently yours to exercise; they must be earned and maintaining privileges requires that you demonstrate your worthiness.

 

[Ragnar Danneskjold]

I look at the Constitution as the "Periodic Table of Rights". The periodic table of elements did not create elements. There are elements that we are still discovering. They are there right now whether we know about them and have added them to the table or not. But once we do discover them, and add them to the periodic table, that is where we look for the definition of an element. The table can be revised, and it has been. But the revisions are an attempt to bring the definitions of the table closer to reality as it it, not an attempt to redefine reality itself. Reality is. A=A. Only our understanding of it, and our written descriptions of it change as our understanding grows. The periodic table of elements is one of those written descriptions. And when a scientist says "the atomic mass of Argon is 39.948" he can cite the periodic table. The table did not make this true, it simply is that reliable and respected of a record by the entire scientific community, that "the periodic table says so" is a good enough explanation for most situations.

I believe Rights simply are. Call them natural rights, God given rights, whatever. But I believe certain rights simply are, whether there is a document stating them or not. The Constitution is an attempt to spell them out. It doesn't create them, but it should be as respected and established as the periodic table where "the Constitution says so" is a good enough explanation. It is our attempt to put into words, to categorize and define, that which already existed. It can be refined and reorganized, but only in an attempt to bring it closer to reality. It doesn't define reality.


"But the information on the periodic table came from testing and experimentation. We learned Argon had an atomic mass of 39.948, and then wrote it down. Where did we concretely learn of Rights?"
My answer is, from God. Your answer might be different. You might not have an answer. You might think the the lack of an answer or differing opinions about where Rights come from means my analogy to the periodic table is false. I don't know what to tell you. You're free to think that. It's my analogy because that's how I look at it. If you don't think what I've said is correct, than obviously you'll look at it differently.

But the phrase "that they are endowed by their Creator with certain unalienable Rights" would seem to support that our country was founded on views similar to my own. Take that for what you will.

 

[beatledog7]

An active judiciary is one that readily disturbs the actions of other branches and that creates new restrictions.

Technically true, but I would argue that a judiciary can achieve an "activist" result that's just as real by either upholding a law or declining to rule on a law.

Activism comes down to judges acting in a manner that intentionally supports or intentionally does not support a particular agenda. Deciding not to act is itself an action.

 

[AlexanderA]

Tipro wrote:

As you can see, the Court rejected using the privileges or immunities clause, and decided to incorporate the 2A under the Due Process clause of the 14th Amendment.

Yes, but gun owners would have been in a stronger position if the Court had decided McDonald based on the privileges or immunities clause, and taken the opportunity to overrule the Slaughterhouse cases. Only Justice Thomas would have gone that far.

We saw the same incremental judicial philosophy in the Heller case, where Justice Scalia, in writing the opinion, decided to ignore the militia clause of the 2A completely and thus sidestep issues regarding machine guns, etc.

I understand why the Court is doing this, but it would be a mistake to think that these "conservative" Justices are necessarily friends of gun owners.

 

[jackpinesavages]

By the U.S. Constitution the only RIGHTS we have are to pursue life, liberty, and happiness-unimpinged by others as long as we pursue those things lawfully.

Everything else is a privelage which can be taken away by a governing authority.

It's always interesting to see how long it takes for these discussions to turn to "God given" rights; yup, God gave you the right to suck good air, be hungry, and die. Most arguments stemming from "God given" rights arise from one person or anothers loose interpretation of their Biblical ideas, for others.

 

[Neverwinter]

Activism comes down to judges acting in a manner that intentionally supports or intentionally does not support a particular agenda. Deciding not to act is itself an action.

See above:

Judicial activism is often used as a code-word for "decision with which I do not agree,"

 

[JRH6856]

By the U.S. Constitution the only RIGHTS we have are to pursue life, liberty, and happiness

I think you have the Constitution confused with the Declaration of Independence.

 

[JellyJar]

Look up the history of the legal phrases "rights and privileges" and "rights or privilege" and you will find that historically in the past the words were almost completely synonymous.

Especially look the history of the Rights and Privileges clause of the 14th amendment.