We Hold This Truth to Be Self-Evident: Why No Right is Unalienable.
If you are a regular listener to Doc ‘N Lefty every Tuesday from 6:30 to 7:30 on DocNLefty.com (Thank you!), or you check us out on YouTube (Thank you, again!), or you just know me personally (I apologize in advance), then you know that I am a lawyer. We don’t do too deep a dive into my professional training on the show, but it does come up from time to time when Doc or I think a legal perspective is required to fully understand a particular topic of discussion. I generally try to keep things simple and broad; one of the most boring things to listen to is a lawyer doing a deep dive on…well, pretty much anything. However, to put the following paragraphs in the proper context, I feel that I should describe a portion of my background in Constitutional law.
Every first year law student is required to take a course in Constitutional law. Some general knowledge in Constitutional law is required to pass the bar exam. At Drake, my law school, we covered Con Law in two semesters. That’s basically thirty-two or so weeks in which I intensively studied the Constitution, read Supreme Court decisions, and discussed constitutional arguments with my class mates. It did not make me a Constitutional expert.
In my second and third years of law school, I had the opportunity to take other classes related to the study of Constitutional law. I took courses aimed at honing my understanding of the Religion Clauses of the First Amendment and the jurisdictional framework of the federal court system. I also took a class that compared the US Constitution to other constitutions and constitution-like governments from around the world. I was awarded a certificate in Constitutional law and civil rights from Drake Law School on account of my interest and consequential study of the Constitution. This did not make me a Constitutional expert.
In my practice, especially with respect to my representation of criminal defendants, I routinely confront constitutional questions related to fair searches and seizures, legal and illegal interrogations, and the proper inclusion or suppression of evidence. Even this does not make me a Constitutional expert.
And folks, if you think that the Constitution expressly protects your “unalienable rights” of” life, liberty, and the pursuit of happiness,” then the chances are very good that you are not Constitutional experts, either.
Please don’t mistake me here. I do not ever want to suggest that only lawyers can be Constitutional experts; as my foregoing paragraphs demonstrate, I am a lawyer who studied the Constitution a lot and still do not feel like an expert. Also, please understand that I am not merely correcting the mistaken view of the disturbingly large number of people who believe that “unalienable rights” and “life, liberty and the pursuit of happiness” comes from the Constitution—it doesn’t. My main beef with the social media “scholars” and internet arm chair “professors” is the absolutely inaccurate, wholly misconstrued notion that such a thing as “unalienable rights” exists for the Constitution to protect.
This is not to say that “rights” do not exist. That would be an incredibly silly thing to say, let a lone immortalize on the internet. However, I do argue that this country, with its much vaunted constitution, has never actually recognized the notion that a right is completely unalienable. Keep in mind, when I talk about “unalienable” I am using the strictest definition of the word. Merriam Webster defines “unalienable” as “impossible to take away or give up.” For my purposes here, since I am criticizing a view of rights that I see most from people who call themselves “strict constructionists”, I feel that using the strictest definition of a term they throw around so freely is appropriate. So, when I hear someone talking about his “unalienable right” to free speech or see a Facebook post about a person’s “unalienable right” to keep or bear arms, I assume that these people mean that they have certain rights that are impossible to take away or give up.
A cursory look at our collection of rights reveals this to be a mistake almost immediately. Even if we accept that there are rights to life, liberty, and the pursuit of happiness (which I have no doubt there are) we know that these rights can be taken away by our government if we commit crimes. Americans can be executed for capital offenses, incarcerated for long periods of time, and placed in probation or parole settings that make the pursuit of happiness incredibly difficult, if not down right impossible. Certain criminal convictions can permanently restrict an individual’s ability to ever again own or carry a firearm . There are also criminal charges for certain kinds of speech. In Iowa, a person can be charged with Harassment if he communicates a message orally, in writing, or electronically that is intended to threaten another person with bodily injury or put that person in fear that bodily injury could occur. If our rights to free speech, life, liberty, and so on were truly unalienable, then they should be impossible to take away or give up—even as a penalty for the commission of a crime.
Of course, this is completely unworkable in a well-ordered society. Not even the most populist libertarian I know would sign on to such a reading of the principles of the Declaration of Independence. An anarchist—perhaps, but anarchists are no lovers of any governing scheme, let alone the Constitution. I believe we can agree that rights can be stripped away as a sanction for a crime through due process of law, but where does that leave the rest of us law abiding citizens?
Perhaps what people who claim certain rights as unalienable really mean is that rights are unalienable only for law abiding citizens. I am not sure that this distinction makes much of a difference—either a right can be taken away or it cannot, and clearly there are many rights that can be taken away or given up. Perhaps what these people mean is not that the right can be given up or taken away, but that it cannot be infringed by governments. Though this is also clearly not the case, this narrative has arisen recently about one right in particular. Advocates for “gun rights” have moved beyond the argument that mere ownership of firearms is unalienable; they argue that unrestricted ownership of firearms is a right that cannot be infringed by any government. In short, governments are not allowed to regulate the ownership of guns at all.
This brings me to what prompted me to write this post. A few days ago, on a friend’s Facebook news feed, I saw a link to an article written by a blogger commenting on the recent firearms legislation passed in Connecticut. The author called gun ownership an “unalienable right” and a liberty “given by God.” The post is largely a warning that if Connecticut continued to push its tough gun control laws, the state would be met with armed resistance. Though it focuses mainly on the prospective violent backlash of an all out gun grab, there is the suggestion that ANY legislation concerning guns is inappropriate and unconstitutional.
I agree with the author on one point. Given the Heller decision, in which the Supreme Court interpreted the Second Amendment to guarantee an individual the right to own firearms, an all out government enforced confiscation of firearms is probably unconstitutional. However, the decision did not go so far as to say that states cannot regulate the sale of firearms. Nor did the Court go so far as to name the right to keep and bear arms a fundamental right requiring strict scrutiny (strict scrutiny being the doctrine that presumes a law to be invalid unless a state can show compelling government purposes for enacting a law that is narrowly tailored to achieve that purpose by the least restrictive means). In fact, the Court held that the Second Amendment was not an unlimited right to own whichever firearm a person wanted for whatever purpose.
By claiming that gun ownership is an unalienable right, the author seeks to elevate it to a level that the Supreme Court did not recognize. For years, the Supreme Court has interpreted the Constitution in such a way as to allow the FCC to set time, place, and manner restrictions on the speech in television programs, to allow municipalities require citizens to register their public demonstrations before they are allowed to access the public roadways, and to ban certain religious practices (such as the peyote consumption of certain Native American tribes). The idea that regulation of firearms is somehow outside the bounds of Constitutional construction is a complete misstatement of constitutional interpretation and the tradition of judicial review.
This discussion could be extended to any number of rights that are protected by the Constitution and guaranteed by the Bill of Rights, but the hour is late and I’ve droned on about this enough. Though immense in scope and importance, our Constitution does not operate as some divine illumination that reveals and grants unfettered access to every mysterious right and freedom available to humankind that has ever existed or ever will exist on into eternity. Instead, it seeks to define and constrain those rights and freedoms that civil society has agreed to hold dear—to protect them from us, and when necessary, to protect us from them. This constraint is not tyranny—it is the bargained for exchange of the self-governed. I believe that this notion is fundamental to our understanding of us as citizens no matter what level of education, experience, or expertise a person has. We’re all in this together, for better or for worse.
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