As President Obama contemplates the political obstacles looming before the gun control agenda he announced on Wednesday, he might look closer to home for their cause.  It is not the gun culture alone that must be overcome if reasonable limitations on military-style assault weapons and high-capacity ammunition clips are to be imposed.  It is the rights culture—the relentless assumption, which liberals pioneered and conservatives have accepted, that the Bill of Rights isolates the individual from considerations of the common good decided upon by the representatives of deliberate majorities.  The American founders did not see their handiwork this way.

The rights culture roosted in Newtown, Connecticut, in the preposterous claim that the Second Amendment, the only provision in the Bill of Rights that specifically announces its purpose—that being a well-regulated militia—permits the limitless ownership of all types of guns by all types of people in all types of circumstances.  The claim illustrates what Mary Ann Glendon has called “the illusion of absoluteness”—the false belief that rights can always be enjoyed in their extremities, without consideration for the needs or opinions of others.

Advocates of gun control, most of them on the political left, are justifiably pointing to the excesses of rights talk today.  But Newtown provides an opportunity for bipartisan reflection on the false absolutism and hyper-individualism of the rights culture. In this matter, liberals are not innocent.  It is the left that, for near to a century, pioneered the tactic of pressing claims of rights—understood as exemptions for the individual from the authority of the community—in the courts, short-circuiting the slow but sure political processes that require engagement with one’s neighbors and consideration of their views.  “We talk a lot around here about voting on rights,” said Rachel Maddow on an MSNBC broadcast.  “Basically, rights are rights because you are born to them; you don’t vote on rights.”

But there is a right to own guns, and it is difficult to see how it can be limited without voting on it.  The problem with the absolutist line is that it assumes politics has no role to play in determining what all rights have: namely, boundaries.  The framers of the Constitution recognized only one absolute right: the sacred liberty of conscience, and that only because it resided in an internal realm and was therefore literally impossible to regulate.  All other rights—from speech to guns—had public repercussions and were consequently subject to public limitation.

James Madison saw the Bill of Rights as a means of guiding political debate, not short-circuiting it: The amendments would constitute, he said in introducing them to Congress, “a good ground for an appeal to the sense of the community.”  Even in defending the freedom of the press, which Madison construed broadly, he acknowledged the ultimate right of the people’s representatives to determine its boundaries.

But the sense of the community has been forgotten in discussing rights.  The contemporary assumption, certainly at work in the extravagant Second Amendment claims of the National Rifle Association, is that the very definition of a right is that it creates a zone of autonomy for the individual on which the majority may not tread.  The concomitant assumption is that it is the job of the courts to protect that zone.  Consequently, when an individual believes the community has mistreated him, the appropriate response is not to persuade his or her neighbors but rather to run to the judiciary for relief. An assertion of rights has become the political equivalent of the child who takes his ball, stomps his feet and leaves the field.

Thus when the citizens of the District of Columbia decided their city would be safer if it banned handguns, the Supreme Court—in the case of D.C. v. Heller—told them they could not.  One need not resolve the wisdom of such a policy to see the revolution worked by the judiciary trumping the deliberate sense of a community in resolving the boundaries of rights. The resort to the courts to overturn the Affordable Care Act resulted from the same mentality.

But so does the use of the judiciary to overturn majorities on abortion or any number of other priorities prized by the left. That is not by any means to equate those issues with what happened in Newtown.  It is, however, to say there is an inescapable linkage in the absolutism surrounding rights that characterizes both sides.

Each claims its priorities are exempt from the judgment of the community.  Each is quicker to turn to the courts than to democratic persuasion.  Each claims its rights are absolute, without boundary, isolated from regulation, indifferent to the opinions of one’s neighbors.  Each amounts to a claim to do whatever one wants, whenever one wants, regardless of what others want.  And each is part of a culture of rights that, every bit as much as a culture of guns, must change if another Newtown is to be deterred.

Greg Weiner, who teaches political science at Assumption College, is the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics (University Press of Kansas, 2012).

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  1. Greg,

    Bravo! This is a solid and, I think, entirely correct piece. What we have here, besides all our other problems, and indeed perhaps at the root of many of all those problems, is a legal doctrine of rights having metastasized into a culture, one in which autonomy is taken as the default presumption, and anything which can be presented (by interest actors, of course) as a violation of those “rights” (how about we actually get serious about those background checks for gun purchases, hmm?) is reacted to as an attack upon a way of life. The notion that a “way of life” really needs to be about working out common goods has been replaced by the legally privileged individualism. The warped gun culture which can produce such offensive and ridiculous messages as that since the president of the United States has trained armed guards around his kids every other child in America has the right of the same as well is one more example of hyper-individualist fruit gone rotten.

  2. Thus the dilemma of the Hobbesian state, gentlemen, namely it is the court and force of last appeal to pull man back from the summum malum, the fear of the one autonomous individual outfitted with his rights à la Rousseau and Locke of the other autonomous individuals outfitted with his rights à la Rousseau and Locke, with the Hobbesian state which is an artificial corporation with a monopoly on coercion, with the ability to define the limits of its own power and animated by a powerful will, be it that of a dictator, an oligarchy or a democratic majority. When the ideologues, political hacks and bureaucrats of the Hobbesian state decided for and against factions of their competing constituency, then one of those factions “loses,” there is unrest which is usually suppressed by the carrot and stick mechanism of the overarching state.

    The 2nd amendment is in fact quintessentially anti-Hobbesian; for it forbids the general government which has now metastasized into the Hobbesian state, obviously foreseen by those who wrote and ratified the Bill of Rights, from interfering with the authority of the sovereign republics in regulating, for the protection of their respective citizens against foreign and domestic enemies, one of which might well become the Hobbesian state, the arming of a well-regulated militia which meant in most states home-armed male citizens of a certain age supplemented by local arsenals. The 2nd amendment is not an articulation that each of us has some inalienable right to buy, possess and use any weapon.

    It is interesting that the “federal” government in the form of the post-bellum Hobbesian state has become through its most despotic branch, the judiciary, by means of the unconstitutional 14th amendment the champion of incorporating the states into the Bill of Rights and guaranteeing the Hobbesian citizens who may reside in a given state the absolute right, noting the more recent rulings against gun control in D.C. and in Chicago. Thus, with this fiat rulings based on an unconstitutional and coerced amendment, the Hobbesian state “creates” another right for the mass of its autonomous individuals and usurps the remaining authority of the once sovereign republics and thereby accelerates the atomization of the social order into disorder in which there can be no consensus on the common good.

    There is, however, a countervailing force to this notion of “rights:” and it seems to manifest itself throughout the created order, namely that those responsible for the safety and security of families, clans, tribes, packs, colonies and coveys must have the means to defend those and that for which they are responsible. The nature of the means is commensurate with the level or responsibility. It is a matter of subsidiarity which flows out of what we think to understand about the Godhead itself. If a force like the Hobbesian state begins with whatever justification to usurp these authorities and their means, then that force is a tyrant, operating against the natural order.

  3. The essential toxin that has developed within the body of the Republic is the notion that Liberty….or Freedom is a release from obligation, a perversion of original intent. Increased liberty, by its very nature, requires a concomitant increase in obligations to your fellow citizen. The narcissism and unceasing culture of want of this generation of Americans insures that they will seek legislative remedy in the form of “cures” that shall never diagnose the root causes of whatever malady the legislative remedy was intended to address.

  4. Sometimes I wonder if Publius and Madison (in his own name) were not correct that the Bill of Rights was a mistake. The Bill of Rights assumes the government had power that the government did not in fact possess and distracts from what Madison believed was the real protection of our rights, namely the separation of powers. But, as Prof. Weiner alludes, the separation of powers theory suggests that the limits of government are settled by politics, actual interests clashing in precisely defined institutional arrangements. We (as is also suggested) rather try to set the limits of government by making rights claims in court. Of course, the 17th Amendment did much to destroy the separation of powers as did the rise of the imperial presidency. Related to the latter point, the rise of the administrative state means that more and more of the important decisions in our lives are made not by elected representatives responsive to politics, but by bureaucrats. No congressmen passes a law mandating contraception coverage under the ACA. That was the HHS bureaucrats.

  5. We don’t at present have unconstrained access to any arms we want, and I don’t hear much in the way of absolutist rhetoric in favor of such unconstrained access. Does the NRA oppose all limitations on citizens owning arms? So they oppose bans against missiles, bazookas etc? Are they being absolutist, or do they just have a different sense of what is reasonable?

    I don’t hear arguments that seem reasonable in favor of many of the proposed restrictions. Limiting magazines to ten rounds? Outlawing “military style assault” rifles? Explain how either of these actually makes a difference. Be reasonable.

    The NRA represents millions of Americans who seem to have a different view of responsibility and the good community than some writers do. The court stepped in with the DC law basically saying the state couldn’t bar ownership of guns. It didn’t bar the sort of restrictions the controllers SAY they want right now.

    Like many people who oppose the controllers, I think we need reasonable restrictions, and I certainly have no absolutist theory of rights. I’m more inflexible than I would be if I trusted that we were in fact having a good faith argument.

    I’m much more reasonable among my own people, with my own tribe–people who love and cherish what I love and cherish. I don’t look for community in the operations of the national state. That sounds rather nightmarish to me, and I have historical reasons for thinking so.

  6. Mr. Umphrey,

    You have made the point: the argument is not and cannot be in good faith; for the reason those who would ban, whatever they would ban and however they would ban, have to be based on the actual facts and rational conclusions, utterly disingenuous. The the most recent mass shootings so-called “military style assault rifles” have been used only four time. Of the four, two were actually fully automatic assault rifles, already outlawed and obviously, illegally acquired. The other two were semi-automatic rifles which looked like assault rifles. Limiting a semi-automatic pistol to ten or to seven rounds, those who would ban would have to know, is ridiculous; for although I am no special-forces trained shooter, I can change magazines and maintain a fairly accurate fire very fast. When the shooters come, they come with lots of magazines. Not all of the anti-gun people know this, but those actually planning an bans are smart enough to know this, namely that banning the garnishments which made an ordinary semi-automatic rifle look like an assault rifle and banning multi-round magazines above seven or ten rounds would not have in the least changed the outcomes of any of the mass shootings. Therefore, the agenda of these folks cannot be to save lives and make us more secure because those two elements, two of their chief PR elements, if made into law, would have made and would make no difference in the outcomes of the shootings or those yet to come. What then is their agenda besides simply pitting on party against the other and playing to their supposed constituency?

  7. Mr. Umphrey,

    If those who wish to do the banning want to put up a fact based argument, they would be arguing to ban the semi-automatic pistol. It is the weapon which killed and wounded all of the victims at Virginia tech; it has been the weapon of choice as backup in many of the other shootings, and it is the weapon responsible for most of the deaths on the street, not a rifle, not a military style assault rifle, and not a shotgun. I would oppose such a ban, but at least their position would begin at a genuine point.

  8. On a monument in Germantown, Pennsylvania, that I saw two days ago, while waiting for the Historical Society reading room to open, is the inscription “Liberty without obedience is confusion, obedience without liberty is slavery.” The monument was surrounded by plaques with the names of the dead from that locality in the Civil War and many subsequent conflicts. The inscription is a good starting point, but both obedience and liberty remain undefined, and how liberty obeys, or obedience liberates, remains vague.

    There is a culture of exaggerated “rights,” which reached its peak when a neighbor of John Gotti shouted outside a federal court house “He has a constitutional right to be not guilty.” I personally believe the argument that there is a constitutional right to marry a person of one’s own sex is also a demand that “Whatever I want, I have a constitutional right to it.”

    I think Greg Weiner misses that the constitution is by nature a jurisdictional document, which assigns jurisdiction to the federal government, explicitly limits the jurisdiction of both federal and state governments, and reserves certain matters to the broad generality of “the people” or to the individual concerned. Yes, SOME matters are, categorically, reserved, while others are legitimate matters for the majority to make a decision that will determine the direction of the entire community.

    As was stated many times in The Federalist Papers, if a bill adopted by the legislature exceeds the legislature’s constitutional authority, it is null and void. In any system of limited government, this must be so.

    Freedom of speech is subject to viewpoint-neutral time, place and manner regulation. There is no reason that the right to keep and bear arms cannot be similarly regulated, without infringing the right to keep and bear arms. Equal protection of the laws is an important principle, but almost immediately the courts had to develop the concept of “similarly situated,” else, denying five year olds the vote would deny them equal protection of the laws with 25 year olds. Every citizen is deprived of the franchise until reaching the age of majority, and thereafter, every citizen may vote.

    We do not need to throw out constitutional government or limitations on the power of the state to recognize that some things ARE a fit subject for legislation which will be binding on all. Nor should we lose sight of the fact that 51 percent is a poor foundation for binding law in some circumstances … as Prohibition demonstrated.

  9. The author appears to confute two properties: (1) a right’s scope (i.e. what is encompassed by the right) and (2) a right’s importance (i.e. the power of a right to override other considerations). I would agree with Mr. Weiner if he were arguing that the constitutional right to bear arms can’t encompass EVERY SORT of weapon. No one is arguing that the 2nd Amendment protects the right to bear missile launchers or sniper rifles. We can have a legitimate debate in constitutional interpretation to decide what weapons fall under the amendment.

    However, Mr. Weiner seems to be saying that a constitutional “right” is just a sort of idea for legislators to ponder before they vote. This is contrary to the plain language of the Constitution, which says in this case that the right “shall not be infringed,” and in others that “Congress shall make no law abridging” the right, that the right “shall not be violated.” This reflects the intuitive understanding of a right as a limit on the authority of others (including the government) to intrude into one’s life.

    If you reject such a conception, you’re rejecting the Constitution.

  10. Dear Mr. Weiner–What an excellent posting! Of course, I find it so because it well accords with my own notions of rights. It has long seemed to me that there are no rights except civil rights negotiated within a community by political means. From what you say of Madison’s take on the Bill of Rights, I think he and I wouldn’t have much to disagree about. There are no rights of man, no human rights, no natural rights, etc. Rights must be acknowledged by government to have any substantiality at all. To say they are inherent to the person or to certain qualities of the person is at best sentimental. (Individuals, I have often opined, I hope not too pompously, have responsibilities, not rights.)

    I am ill, so I haven’t read all the responses to your posting as attentively as I would have liked to. Has anyone mentioned that most of the Bill of Rights place limitations on Congress alone? States, counties, and municipalities are not mentioned–well, in the universally ignored 10th Amendment–and presumably those entities are permitted by the federal government to restrict gun ownership, religious establishment, assembly, etc., as they see fit Perhaps most states agreed to embrace similar restrictions on themselves in their constitutions. Interpretation of the 14th Amendment has wrought havoc with the independence of the original state and local governments. At least, that’s my understanding.

  11. Mr. Olsen, with respect, in saying that “[r]ights must be acknowledged by government to have any substantiality at all”, you grasp the wrong end of the stick.

    Governments, as our founders believed, are artificial constructs that draw their power from the consent of the governed. It is not rights that are created in our constitution — it is a government with limitations. Among these limitations are constraints on the government prohibiting free speech, free exercise of religion, etc. So, we are not talking about a natural right. I have the power, if I don’t like your exercise of free speech, to sound an air horn to drown out your voice or to rally other members of my community to exclude you from our society — anything within the bounds of the law. It is only the government that does not have the right to do this.

    And it is not a thoughtful response to say that the majority should be able to expand the government’s ability to regulate speech or the exercise of religion, etc. The concept of majority rule arises by social contract through the same document that constrains the government’s ability to act in these areas.

  12. Once we do away with the rule of law, which is the rule of principle, and sweep away inconveniences in the path of the common good as agreed to by–somebody, somehow, but speaking good words such as community–I imagine we will again be positioned to do whatever’s good for the Revolution. All will be politics. Yet again, everything will be possible.

  13. Dear Mr. Wilton–Point taken. However, I was invoking a concept of government as servant, not master. Besides defending the citizens, its constituency, against attacks from without, government has the duty to prevent citizens from damaging one another. The recognition of rights by statute, as civil rights, is done to make explicit the statuses that political bargaining has established will be beyond the power of individuals and corporations to deny or harm, such as the suffrage of black citizens, the marriages of nonreligious and non-Catholic persons, and individual gun ownership.

    The problem remains the same, of course–keeping the government servile rather than overweening.

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