By Greg Weiner, The New York Times, 28, 2018
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Wayne LaPierre is rarely accused of progressivism. But when Mr. LaPierre, the leader of the National Rifle Association, addressed the Conservative Political Action Conference last week, he invoked the Second Amendment in much the same way that a significant portion of the left has long spoken of the rights it values. According to this conception, rights are zones of personal autonomy where the individual owes no explanation and the community has no jurisdiction. This manner of thinking about rights is a serious barrier to reasonable regulations of firearms. The N.R.A. ritually claims the mantle of the Constitution, but the American founders who framed it had a far richer view in which individual rights were subject to considerations of the common good.[JB emphasis]
There may be good reasons not to regulate firearms further, but the individual’s absolute claim that his or her guns are nobody’s business is not one of them. To even make this assertion is an illustration of what the legal scholar and diplomat Mary Ann Glendon calls “the illusion of absoluteness,” an idea that is hostile to the possibility of political community. All rights have limits. The question is who determines them. For the framers of the Constitution, the answer was that the people do.
One of the earliest American assertions of rights, the 1641 Massachusetts Body of Liberties, delineated rights against everything from banishment to dismemberment but subjected them to regulation by the legislature. The community could take these actions only according to rules known in advance and equally applicable to all. The essence of rights in this early understanding was the rule of law — as propounded by the community — not the isolation of the individual.
The Declaration of Independence, whose “unalienable rights” individualists are so quick to claim for themselves, dealt with rights similarly. In legal parlance, to “alienate” something is to exchange it for an equivalent — precisely what individuals do with their rights when they form a political community. The Declaration’s rights are coherently “unalienable” only if they are possessed by what the document calls “one people.” This interpretation is backed by the fact that many of the complaints against King George that the document proceeds to enumerate are not that he did something absolutely forbidden but rather that he did so without the legislature’s consent.
In one of his cheaper applause lines, Mr. LaPierre cut to the heart of this issue: “We, the people, are in charge of this country,” he declared. But polls show that the people overwhelmingly support more restrictions on guns. As Randy E. Barnett, a constitutional theorist whose conception of individual liberty animated the legal challenge to the Affordable Care Act, has written, everything hinges on whether “we the people” refers to a community or a collection of individuals. Mr. Barnett concludes the latter, as apparently does Mr. LaPierre, who went on to repeatedly invoke “individual rights” as the essence of the American republic.
In this, they differ from James Madison, the man behind the Bill of Rights. Introducing his amendments to Congress with the lukewarm remark that they were not “altogether useless,” Madison cast them as a protection for the people against the encroachments of the government, not as a means of preventing the majority of the people from acting on its understanding of the public good.
On the contrary, Madison specifically rued the fact that his amendments would not prevent the majority from abusing the minority. Madison thought the Bill of Rights might help discourage the community from abusing political minorities, but he did not see it as a legal barrier to majority decisions. Instead, Madison wrote that in situations in which political minorities were aggrieved, they were responsible for persuading the majority of their views and had to acquiesce if they failed. Alexander Hamilton argued that the Constitution’s invocation of “we the people” better protected what he suggestively called “popular rights” than their formal recitation in a Bill of Rights.
Far from being absolute, the Second Amendment is perhaps the clearest example of the Constitution situating rights in the context of the public good. It refers to the right of “the people” to keep and bear arms because the framers of the Constitution preferred state militias to a standing national army. The public context of the right is similar to the difference between the Constitution protecting the capacity of speech, which would allow the proverbial cry of “fire” in a crowded theater, and the First Amendment’s reference to “freedom” of speech. The latter is a legal concept that incorporates the possibility of limits.
This political conception of rights — that they can be adjusted for the public good, subject to the rule of law — largely prevailed until the courts began understanding rights as instruments of individual fulfillment and desire. The inevitable result was what the conservative political philosopher Harvey C. Mansfield has called the belief that “no right is safe unless it can be carried to an extreme.”
In this sense, Mr. LaPierre’s rights rhetoric has far more in common with the political opponents whom he stigmatizes as socialists than he acknowledges. It is a staple of progressive rhetoric on individual rights that they must be protected at their outer limits lest exercises of freedom short of the extremes become threatened. Assertions of speech and press rights that would accord pornography nearly boundless First Amendment protection lest the nation tumble down the slippery slope to political censorship partake of this tendency. So does the ever-expanding right to privacy, support for which often takes the form of arguing that if the government is allowed to restrict one activity, it will be similarly empowered to regulate others.
This rigidly individualist understanding of rights is a bipartisan phenomenon. The insistence on an absolute interpretation of rights leads to the absurdity of all-or-nothing solutions like arming everyone, including classroom teachers, rather than regulating anyone. The slaughters at a high school in Florida, a church in Texas and a concert in Las Vegas suggest that the common good is not only an older standard for rights but also a better one.
Greg Weiner (@GregWeiner1) is a political scientist at Assumption College and the author, most recently, of “American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.”
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