Rights vs Privileges

[legaleagle_45]

Rights and Privleges-- a philosophical framework

The primary problem that I see in this thread is a basic failure of semantics. As an aside, I congratulate Art for coming the closest to articulating the frame work which I hope to expand upon.

There are "rights", there are "natural rights" and then there are "unalienable natural rights". These are not coextensive or interchangeable. So let us begin with "unalienable natural rights". Unalienable, means something which can not be given up. Natural rights theory is a subcategory of natural law, which sought to supplant another philosphy in vogue prior to our colonial period... that being the "divine right of kings". In essence, natural law theory articulated the ideal that: "Governments are instituted among Men, deriving their just powers from the consent of the governed". This is the social compact theory, articulated by Hobbes, Locke and Rousseau. It is within this context that the subject of "unalienable natural rights" arises. Essentially, what it postulates is that there are certain rights so fundamental to the human condition that they are incapable of being transferred by the people to the government when creating the social compact.

So how do we determine whether something is an unalienable right or not? The great philosophers postulated that these unalienable rights could be discerned by careful study of what it means to be human. We can not give up our basic essence because, even if we attempted to do so we would fail. What they are talking about and what might seem remarkable to many, is those things which are instinctual or inherent in our very nature. Self defense is the "first law of nature" because it is instinctual, we can never surrender it, it is unalienable. That does not mean that government can not pass a law which prohibits same and that does not mean the government is powerless to punish persons who violate the prohibition, what it means is that a government which does prohibit and punish self defense has violated the social compact. A law may be passed which prohibits a person from blinking his eyes when water is thrown in his face, but that law violates the natural right of self defense... Why? Because , and regardless of the laws command, we will blink our eyes anyway. Such a reaction is instincual and not subject to our voluntary control and as such WE ARE INCAPABLE OF CONFORMING OUR ACTIONS TO THE DICTATES OF THE LAW. When that is the case, you can rightfully say that the laws violates our unalienable natural rights.

So... 1st principle: an unalienable natural right refers to the instinctual and biological imperatives of the human species which we have no control over. An easy example, we have an unalienable right to relieve our bladders. Certainly, government can and does impose some rules with respect to that unalienable right and such does not violate your unalienable right itself, SO LONG AS YOU CAN COMPORT YOUR BEHAVIOR TO THE DEMANDS OF THE LAW. A law can not validly prohibit you from relieving yourself, although it can prohibit you from relieving yourself in public. A law can not prohibit you from exercising the right of self defense, but it can require you to retreat prior to exercising said right, as such, the law provides you with valid options which you can comply with, but it can not force you to do something which you can not do...

Seems odd, though... Not to many people would consider instinctual or biological imperatives to equate to "unalienable rights", but that is exactly what these great philosophers meant when they used that terminology. So, as a matter of semantics and as a definitional prerequisite for the natural rights theory, that is exactly what it is.

Natural rights encompasses all of these unalienable rights plus others which the human species would indulge in the absence of government sanction. Governments do limit or prohibit the free exercise of these natural rights which are not unalienable and such is perfectly legitimate... in fact most laws do exactly that. We surrender some of our natural rights in order to obtain the benefits, protections and advantages of society. In most instances, the advantages obtained by living in an orderly society far outweigh the loss of these natural rights. In essence, natural rights encompass everything that we would or could do in the absence of government.

OK, this brings us down to the common terminology "rights" as opposed to "privileges". The common understanding of these terms has nothing to do with natural right theory except tangentially... generally speaking, the reason for the creation of these rights is based upon the concept of unalienable rights but it is in the reason for their delineation as a right protected from governmental infringement... Essentially a "right" in this context refers to something the government can not do by virtue of merely passing a plain vanilla law. To overcome a right, it is necessary to alter the social compact itself by passing a constitutional amendment. A privilege can be withdrawn at any time by merely passing a law to that effect. Under this view, rights do not necessarily have anything to do with "unalienable natural rights" or even "natural rights". Thus, a right to a jury trial in civil matters where the amount in controversy is in excess of $20 is neither an "unalienable natural right" or even a "natural right" since natural rights refer to those things that exist without government and a jury is merely a governmental institution. However, it is a "right" because it can not be altered without amending the social compact.

The confusion of these terms stems from the fact that many portions of our BoRs are associated with "unalienable natural rights". It is the reason why these items ended up on the list of things that can not be altered without amending the social compact.... it is not an equivalency, it is merely the rationale for their inclusion in the BoR's.

Additionally, the BoR's, for the most part, do not directly protect unalienable rights, but protect rights which are ancillary to unalienable natural rights. Blackstone termed these as "auxiliary rights" in that they tend to protect, preserve and enhance the underlying unalienable natural rights. Thus, the 2nd serves to protect, preserve and enhance the underlying unalienable right of self defense. The 1st, serves to protect, preserve and enhance the underlying unalienable natural right of freedom of conscience (humans are thinking animals and will believe what they will believe, a law requiring one to actually believe that the sky is yellow instead of blue will be disregarded by our brain, regardless of our desire to comport to the requirements of the law).

This, of course, begs the further question of how does government obtain the power to impose the death penalty when the people are incapable of alienating that power to government under social contract theory.... However I have rambled on far too long, so I leave that one up to your imaginations.

 

[t165]

You should have stopped with your first sentence legaleagle_45. I think you pretty much hit the nail on the head. Everything thereafter was nothing but convoluted semantics. Individuals are going to interpret the word "Rights" differently. Heck, even animals have rights and they cannot even say the word let alone understand it.

Whenever my step-father witnessed people arguing silly topice he would always say...that person would argue with a stoplight. Seems about right! And YES...he said that to me a lot!

 

[Grey_Mana]

Read your John Locke.
He wrote about 330 years ago.
His enemies felt that humans were subjects of the king, essentially slaves with no rights but were granted by a better man than you. Locke perceived that man is created by God, and God-given rights are inalienable.

Locke and the other British subjects had the same argument about the proper definition of 'right'. The Revolutionary War settled the question for America.

The right to try to defend yourself is an unalienable right. The alternative being to meekly accept violence. The case of when you couldn't defend yourself wasn't under the purview of rights.

The right to refuse to willingly pay unjust taxes. The alternative being to willingly pay. Being robbed (i.e. being coerced into paying taxes) has nothing to do with your rights.

The right to pursue property. The right to bear arms when no one can stop you, but your king ordered you not to bear arms. The right to kill someone at your mercy. The use of the word 'right' in the sense of inalienable rights and 'right' in the sense of right and wrong have the same historical origin. Rights of the 1600s pertained to morality & religion and pertained to what you could actually do and whether you should do it. No one talked about the right to property that you couldn't defend (or hire someone to defend), no one talked about bearing arms if the government could sucessfully take your weapons at a whim.

Locke explicitly noted that the right not to be at the mercy of another was a right worth killing for.

In it's proper historical context, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" doesn't mean that you can walk around with a gun and the cop isn't allowed to bother you. It means that you and your neighbors won't allow the cops to bother people just for having a gun. If the cop bothers you or your neighbor, you get together with enough people to be effective (the milita) and reason with the cops, convincing them to stop. Only if necessary and just, you and your neighbors use arms and violence to prevent the cops from bothering you and your neighbor. It means that you and your neighbors go down to the capitol and make sure anti-gun laws don't get passed, or get repealed post haste. The threat of effective violence is explicit in the 2nd amendment - "a well regulated Militia" can demand and get justice. The modern concept of the right to bear arms as a privilege is actually the fruit of the right to bear arms, in the sense of 'it is right to use force and the threat of force, and to be able to effectively threaten and use force, to keep your liberty and property."

Normally, you owe obedience to the police, because you consent to our form of government, which invests police with the authority to keep the peace, give lawful orders, et cetera. You've implictly agreed that the police have the right to tell people what to do and punish people who break the rules. The Bill of Rights delineates a few rights of the people.


Essentially - your right to free speech means that it is right to stop the government from making and enforcing any law the abridges your freedom of speech. It is right to stop them, using force if necessary.
Your right to bear arms means it is right to stop the government from infringing on your how you keep and bear arms. It is right to use force if necessary. Only the 2nd amendment talks about a militia because a well regulated militia is the means - you need people to help you (and they need your help) to keep this right. None of the other rights talk about the means to protect them.

 

[t165]

Sounds like John Locke didn't like authority! Today he would be labled an anarchist, he would post a tax protest web page, and belong to a anti-government militia...he would label himself a true patriot and spout hate towards current government leaders. He would preach to all who would listen that he knows a better way!

Funny how things stay the same and only the names of the players change.

 

[Zoogster]

No they all didn't make a choice to commit the crime, but I bet you alot of them did. I was just saying, wrongful convictions aside, felony criminals forfeit their rights, in my opinion; felony criminals are not being infringed upon or having their rights usurped.

Said by maskedman504 from Florida with this as part of thier signature:

I carry mine where ever I go, even into California. Unless you make a big deal out of it who's going to know? I'd rather be judged by twelve than carried by six.

I found this a great irony because that is a felony. Someone from out of state carrying a firearm in CA is commiting a felony as people from out of state can never legaly obtain a carry permit or register thier weapon with the CADOJ. California also does not recognize carry permits from any other states.
Illegal concealed carry of an unregistered weapon (it does not matter if registered or permited or otherwise legal in another state, the definition of "registered" in CA law specifies something else) is a felony.
Registration is not a requirement, and it is not even an option for those without CA residency. However if you carry it becomes a felony. So you can legaly bring an "unregistered" handgun, but if you carry it you commit a felony.
The quote supported by maskedman504 clearly references illegaly carrying a concealed firearm for self-defense into California in violation of the law.


So someone who adamantly supports permanently denying anyone who commits a "felony" thier Constitutional right supports commiting a felony by carrying concealed into California when they visit, and references it in thier signature.
Too funny.

 

[w_houle]

There is no spoon... Think about it for a second.
There is no government. It is about people who share common beliefs, anything beyond that is kabuki theater. I know that when a car pulls up behind me with a rather loud noise and flashing lights that I need to pull over: Not because of some magical, mystical force of law, but because he has a gun and so does his buddies. When I am told to go stand in front of a jude; I don't do it because I won't gain entry to heaven, but because those same guys with guns would drag me down there anyway (and even take me hostage for a while).
our government is founded on the idea that we are all equal (HAH!), and in saying that... We are no longer equal. In our own right we have developed a certain social style of caste system.
We can sit here and hash this stuff out 'til we are blue in the face, but face it; we are free simply because our government isn't inclined to crush our faces with their boots... yet.