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DDT
02-12-2009, 11:33 AM
What is the likelihood that the 9th will follow the lead of the 2nd circuit and decline to incorporate the second amendment? I really doubt there is much chance of the current SCOTUS denying incorporation once the case is certified but am just wondering about Nordyke and the 9th.


In deciding Maloney v. Cuomo the second circuit court of appeals wrote:


Bach v. Pataki: “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” ... Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. ... we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case ... leaving to the Supreme Court the prerogative of
overruling its own decisions.’

aileron
02-12-2009, 11:37 AM
Flip a coin, tails they do what the 2nd did, heads they incorporate. Let me know what side it landed on. ;)

Now a lot of people are going to tell you they expect incorporation. But no one knows. But it would be very, very, very odd if they dusted this baby off, to say no to incorporation.

But anything is possible, your just going to have to wait and see like the rest of us.

bwiese
02-12-2009, 11:38 AM
I don't believe the panel in the 9th would have dredged it up and kept case alive if they didn't see this as an important issue.

The 2nd just punted, and helps us with 'circuit split' issues.

DDT
02-12-2009, 11:52 AM
thanks. I am very confident that the end of the road here is incorporation so this isn't a "sky is falling" scenario. I was really just interested in knowing if the 9th is likely to take the 2nd's decision into consideration in their deliberations. Might be too late, deliberations may be done and drafting is happening as we speak.

bulgron
02-12-2009, 11:57 AM
After looking into the personalities of the Nordyke panel, I fully expect them to rule in favor of incorporation. What happens if the 9th hears this case en banc is a crap shoot. Usually en banc means the entire court, but the 9th is too large for that so (from what I heard) en banc hearings are populated by 15 judges randomly drawn from the 9th. The three judges currently sitting on Nordyke cannot be a part of an en banc review of any Nordyke opinions.

Given the makeup of the 9th circuit, I think it's a real crap shoot whether we'd get a panel populated by originalists or living document types. Originalists would uphold the lower court's opinion, I think. Living document types would not.

If we lose en banc, then it's on to SCOTUS. One way or the other, I'm convinced we'll get incorporation.

SwissFluCase
02-12-2009, 12:02 PM
After looking into the personalities of the Nordyke panel, I fully expect them to rule in favor of incorporation. What happens if the 9th hears this case en banc is a crap shoot. Usually en banc means the entire court, but the 9th is too large for that so (from what I heard) en banc hearings are populated by 15 judges randomly drawn from the 9th. The three judges currently sitting on Nordyke cannot be a part of an en banc review of any Nordyke opinions.

Given the makeup of the 9th circuit, I think it's a real crap shoot whether we'd get a panel populated by originalists or living document types. Originalists would uphold the lower court's opinion, I think. Living document types would not.

If we lose en banc, then it's on to SCOTUS. One way or the other, I'm convinced we'll get incorporation.

Pardon my ignoraance, but how would we come to an en banc scenario? I thought the case was already heard, and we are only awaiting a decision. Could the three judge panel punt somehow?

Regards,


SwissFluCase

DDT
02-12-2009, 12:06 PM
Originalists would uphold the lower court's opinion, I think. Living document types would not.


Why do you think originalists would uphold the lower court's opinion? I thought that most orignialists believe that the 14th was intended to incorporate the BoR, especially the 2nd. Are you saying that you believe incorporation has little chance if this is heard by SCOTUS? Afterall, isn't it the orginalists who brought us Heller?

CCWFacts
02-12-2009, 12:07 PM
Pardon my ignoraance, but how would we come to an en banc scenario? I thought the case was already heard, and we are only awaiting a decision. Could the three judge panel punt somehow?

If the losing side doesn't like the outcome of the 3-judge panel, they can ask for an en banc hearing. This is such a major deal for California's gun laws (we're #1 on the Brady scorecards) that there will be a huge desire to fight it all the way if they lose.

The court can grant or deny the en banc hearing, just like the Supreme Court can grant or deny cert, if they want to.

All of our other individual liberties that are mentioned, and some that are not (like abortion) have been incorporated. I can't see how the entire judicial system could carve out the 2A as being not incorporated. It just might take a while, and hopefully we'll hurry and get to the Supreme Court sooner than later.

SwissFluCase
02-12-2009, 12:11 PM
If the losing side doesn't like the outcome of the 3-judge panel, they can ask for an en banc hearing. This is such a major deal for California's gun laws (we're #1 on the Brady scorecards) that there will be a huge desire to fight it all the way if they lose.

The court can grant or deny the en banc hearing, just like the Supreme Court can grant or deny cert, if they want to.

All of our other individual liberties that are mentioned, and some that are not (like abortion) have been incorporated. I can't see how the entire judicial system could carve out the 2A as being not incorporated. It just might take a while, and hopefully we'll hurry and get to the Supreme Court sooner than later.

Thanks! That was a duh moment on my part. :thumbsup:

I'm sure the anti's will try. I wonder if their counsel will take payment in the form of an IOU... Seriously, I'm hoping they roll like the SF Housing Authority did.

Regards,


SwissFluCase

Cypren
02-12-2009, 12:27 PM
I'm sure the anti's will try. I wonder if their counsel will take payment in the form of an IOU... Seriously, I'm hoping they roll like the SF Housing Authority did.

Right now, I have no doubt that their legal strategy is to stall for as long as possible to prevent the case reaching the Supreme Court. I'm positive they'll demand an en banc hearing (which, if I remember correctly, is 11 judges on the 9th, not 15 as stated earlier) and probably use every dirty trick/political favor they have to try to pack the panel with judges sympathetic to their cause. Edit: It's worth noting that nothing requires that the 9th grant their request for an en banc panel, but the decision is made by majority vote of active judges, and given the liberal makeup of the circuit, I have a difficult time believing they would deny it.

If they can keep the case stalled and prevent it from reaching the High Court for a couple more years, there's a chance (slim though it may be) that one of the five Heller justices may die or retire and Obama can appoint a replacement who will rule in their favor. Otherwise, it's a lost battle.

The Brady Bunch may be misguided, but they are not stupid. If we can figure this much out, so can they. And they have a strong vested interest in keeping the status quo, since it lets them keep collecting money and brokering favors as long as this remains an open fight.

bulgron
02-12-2009, 12:55 PM
Why do you think originalists would uphold the lower court's opinion? I thought that most orignialists believe that the 14th was intended to incorporate the BoR, especially the 2nd. Are you saying that you believe incorporation has little chance if this is heard by SCOTUS? Afterall, isn't it the orginalists who brought us Heller?

Sorry, I haven't the vocabulary to say this elegantly.

I assume the current 9th circuit three panel court will find for incorporation. If the case goes to en banc review and if the en banc panel is a majority of originalists, then I expect that panel to uphold (what I expect to be) the three panel court's opinion. Else, I expect an en banc 9th circuit panel to find against incorporation.

Does that make more sense?

I don't know if a 9th circuit court comprised of a panel of three judges is considered to be a lower court than a 9th circuit en banc panel, or if lawyerly types have some other way to distinguish the two. All I know is that an en banc review can overturn an opinion released by a three panel court, so I (perhaps in ignorance) think of the three panel court to be lower than an en banc court. Ahh, but even as I type that, I know I must be saying it wrong.

If someone who paid money to learn these things could straighten out my vocabulary, I'd appreciate it. :D

Cypren
02-12-2009, 1:06 PM
I don't know if a 9th circuit court comprised of a panel of three judges is considered to be a lower court than a 9th circuit en banc panel, or if lawyerly types have some other way to distinguish the two. All I know is that an en banc review can overturn an opinion released by a three panel court, so I (perhaps in ignorance) think of the three panel court to be lower than an en banc court.

This is a pretty logical thought process, but in legal terminology, it's incorrect. Appellate courts in the US typically hear cases in three-judge panels initially, unless the case is considered so significant that broader consideration is warranted. Either party to a case can make a request for an en banc hearing at the outset, which, in most cases, will be summarily denied unless multiple judges on the court express an interest in a formal vote. Once the case has been heard by the panel, the parties may request a re-hearing en banc, which will typically be granted more consideration than a preliminary request. The en banc hearing is voted on by simple majority of active judges on the appellate court, and in the event that it is granted, it is considered a "do over" of the initial panel's hearing. Topics from that hearing may be brought up, but the en banc hearing is not a "higher court" of any kind -- it is simply a broader hearing by the same court to solicit more opinions. Edit: part of the significant distinction here is that no party has a right to an en banc hearing. It is a privilege granted by the court for cases they deem worthy and can be granted or denied arbitrarily as the judges see fit.

Technically, any appellate court in the country can follow this procedure, but most state high courts (and the US Supreme Court) have a general policy of always sitting en banc for cases granted certiorari, as they are all considered to be significant.

bulgron
02-12-2009, 1:15 PM
This is a pretty logical thought process, but in legal terminology, it's incorrect. Appellate courts in the US typically hear cases in three-judge panels initially, unless the case is considered so significant that broader consideration is warranted. Either party to a case can make a request for an en banc hearing at the outset, which, in most cases, will be summarily denied unless multiple judges on the court express an interest in a formal vote. Once the case has been heard by the panel, the parties may request a re-hearing en banc, which will typically be granted more consideration than a preliminary request. The en banc hearing is voted on by simple majority of active judges on the appellate court, and in the event that it is granted, it is considered a "do over" of the initial panel's hearing. Topics from that hearing may be brought up, but the en banc hearing is not a "higher court" of any kind -- it is simply a broader hearing by the same court to solicit more opinions. Edit: part of the significant distinction here is that no party has a right to an en banc hearing. It is a privilege granted by the court for cases they deem worthy and can be granted or denied arbitrarily as the judges see fit.

Technically, any appellate court in the country can follow this procedure, but most state high courts (and the US Supreme Court) have a general policy of always sitting en banc for cases granted certiorari, as they are all considered to be significant.

Thanks, Cypren.

So it sounds like the correct terminology is something like this:

An en banc hearing of the 9th circuit reversed an opinion issued by a 9th circuit three judge panel. Yes?

Cypren
02-12-2009, 1:23 PM
So it sounds like the correct terminology is something like this:

An en banc hearing of the 9th circuit reversed an opinion issued by a 9th circuit three judge panel. Yes?

Quite correct.

pguevara
02-12-2009, 2:19 PM
I assume the current 9th circuit three panel court will find for incorporation.

I agree. The Nordyke three judge panel appeared interested in reaching the incorporation issue in its 2003 opinion but did not do so because it was bound by precedent to refuse jurisdiction over the Second Amendment claim. Ninth Circuit precedent (Hickman v Block) held that the Second Amendment is a collective and not an individual right; thus, the Nordykes had no standing to bring a Second Amendment claim. The panel then made it clear that it disagreed with the collective right approach and said that they were inclined to follow the individual right approach of the Emerson case from the Fifth Circuit.

Judge Gould took the time to write a separate concurrence in the 2003 opinion encouraging the Court to revisit incorporation. While Judge Gould did not specifically address incorporation, he wrote a lengthy Heller-esque argument on why the RKBA is an individual right -- "a fundamental liberty upon which the safety of our Nation depends, and it requires for its efficacy than an individual right be recognized and honored." With Nordyke involving a state action (not federal), Judge Gould's concurrence would be a futile exercise since incorporation would be necessary for the Second Amendment RKBA to apply. I don't think Judge Gould had that in mind.


If the case goes to en banc review and if the en banc panel is a majority of originalists, then I expect that panel to uphold (what I expect to be) the three panel court's opinion. Else, I expect an en banc 9th circuit panel to find against incorporation.

I believe the en banc panel would consist of the Chief Judge Alex Kozinski and 10 other judges drawn by lot. And Judge Kozinski is on record supporting the individual RKBA. I like the chances of incorporation.

DDT
02-12-2009, 3:07 PM
Sorry, I haven't the vocabulary to say this elegantly.

I assume the current 9th circuit three panel court will find for incorporation. If the case goes to en banc review and if the en banc panel is a majority of originalists, then I expect that panel to uphold (what I expect to be) the three panel court's opinion. Else, I expect an en banc 9th circuit panel to find against incorporation.

Does that make more sense?

gotcha. Plenty eloquently enough for me :)

Thanks for your patience in explaining it further, make perfect sense.

dreyna14
02-12-2009, 3:33 PM
I don't think the 9th will incorporate. I think that the recent decision by the 2nd is exactly what they wanted to protect their own butts. It gives them justification to say, "Well, the 2nd ruled against it, no reason why we can't do the same."

vrand
02-12-2009, 3:57 PM
And Judge Kozinski is on record supporting the individual RKBA. I like the chances of incorporation.

:thumbsup:

CSDGuy
02-12-2009, 4:12 PM
I don't think the 9th will incorporate. I think that the recent decision by the 2nd is exactly what they wanted to protect their own butts. It gives them justification to say, "Well, the 2nd ruled against it, no reason why we can't do the same."
If what I read about the recent decision in the 2nd about the 2A, they didn't do the Duncan Analysis... as the 9th was asked to do. If that is the case, then any decision from the 2nd about the 2A should be suspect.

pguevara
02-12-2009, 5:05 PM
If what I read about the recent decision in the 2nd about the 2A, they didn't do the Duncan Analysis... as the 9th was asked to do. If that is the case, then any decision from the 2nd about the 2A should be suspect.

Agreed. The Maloney Court over-stated and under-analyzed its anti-incorporation holding. The Duncan test for determining whether a Constitutional right is protected against state action is whether the rights are fundamental to the American legal system, "necessary to an Anglo-American regime of ordered liberty," or "the most essential rights and liberties of the colonists." The Heller opinion refers to the RKBA as one of the fundamental rights of Englishmen (including the colonists). The RKBA is fundamental under Duncan; therefore, it should be incorporated. See Lund, Nelson, Professor George Mason School of Law, Anticipating the Second Amendment Incorporation: The Role of Inferior Courts (2008) http://ssrn.com/abstract_id=1239422.

vrand
02-12-2009, 5:10 PM
Agreed. The Maloney Court over-stated and under-analyzed its anti-incorporation holding. The Duncan test for determining whether a Constitutional right is protected against state action is whether the rights are fundamental to the American legal system, "necessary to an Anglo-American regime or ordered liberty," or "the most essential rights and liberties of the colonists." The Heller opinion refers to the RKBA as one of the fundamental rights of Englishmen (including the colonists). The RKBA is fundamental under Duncan; therefore, it should be incorporated. See Lund, Nelson, Professor George Mason School of Law, Anticipating the Second Amendment Incorporation: The Role of Inferior Courts (2008) http://ssrn.com/abstract_id=1239422.

God given Rights. :79:

hoffmang
02-12-2009, 7:03 PM
1. Our 3 judge panel in Nordyke will incorporate.

2. The 9th Circuit has too many judges for all of them to vote on the en-banc yes/no. However, 4 of the panel that votes to take or not take the case en-banc will be our 3 and Kozinski.

3. If the Antis were smart, they would vote to deny en-banc and basically challenge Alameda to not petition for cert to SCOTUS.

4. The only real down side to going en-banc (where we will have the entire 9th circuit set of judges) is that it will slow down the outcome. If we win, its a gauntlet to Alameda to appeal. If we lose, we'll appeal and be almost certainly granted cert.

-Gene

MindBuilder
02-12-2009, 9:10 PM
It may be better for us to loose with the three judge 9th Circuit panel. Because if we loose, I think we can bypass an en-banc panel and appeal directly to the Supreme Court before we loose one of our judges. But I'm not sure about that, maybe we have to ask for en-banc before appealing to the SC. I think that if the other side wins they can't ask for an en-banc review because they're the winners. If an en-banc panel gets a hold of it they may drag it out for a long time. They could do nasty slow things like send it back to a lower court for fact finding.

I posted a transcript of the oral arguments here
http://www.calguns.net/calgunforum/showthread.php?p=1949095#post1949095
The discussion of incorporation begins at the beginning of the second part.
Alarcon's comments don't look good. If he's still making comments like that after reading the briefs, then I don't think anything Kilmer said would change that much. Of course it's possible that he could just be taking a vigorous devils advocate approach. Apparently they often do that. The comments of Gould and O'Scannlain aren't too bad.

It's been said that the judges dredged up the case to rehear after Heller, but my impression was that the case was still alive and that it was the parties that reinvigorated it, not the judges. I could easily be wrong about that.

DDT
02-12-2009, 11:14 PM
Agreed. The Maloney Court over-stated and under-analyzed its anti-incorporation holding. The Duncan test for determining whether a Constitutional right is protected against state action is whether the rights are fundamental to the American legal system, "necessary to an Anglo-American regime of ordered liberty," or "the most essential rights and liberties of the colonists." The Heller opinion refers to the RKBA as one of the fundamental rights of Englishmen (including the colonists). The RKBA is fundamental under Duncan; therefore, it should be incorporated. See Lund, Nelson, Professor George Mason School of Law, Anticipating the Second Amendment Incorporation: The Role of Inferior Courts (2008) http://ssrn.com/abstract_id=1239422.

Quite an interesting paper.

Is this a fair summary?

The first thing that popped out at me was this:
"The Supreme Court has not authorized those courts to overrule its precedents, even when there are good reasons to think that the precedents were wrongly decided."

This only applies to "privileges and immunities" claims though. This is essentially a claim that "The Second Amendment limits lesser governmental units ability to infringe upon the right to keep and bear arms in the same way it proscribes such infringement by the Federal government."

Cruikshank and Presser are the 2 existing SCOTUS decisions addressing the "privileges and immunities" claim and it would be up to SCOTUS to reverse itself because lower courts are bound by these decisions.

The other form of incorporation is via "selective incorporation" which relies on due process guarantees in the 14th amendment. This mode of incorporation didn't exist when the court decided Cruikshank and Presser and thus was never addressed by the Supreme Court as applied to the second amendment.

The primary case law for "selective incorporation" is Duncan which states that the same limitations will be placed on States where the right is “necessary to an Anglo-American regime of ordered liberty.” Answering this question is referred to as the "Duncan test."

Since SCOTUS has never applied the Duncan test (decided if "The Right to Keep and Bear Arms" is “necessary to an Anglo-American regime of ordered liberty”) to the second amendment a lower court can decide either way without conflicting with precedence.

Therefore a circuit court is very unlikely to decide for incorporation via a "privileges and immunities" claim. A "due process" claim is much more likely to be decided in our favor by a lower court because there is no precedence directing the court in one way or the other.


Question: Is there is a substantial difference between "privileges and immunities" incorporation and "selective incorporation?"

hoffmang
02-12-2009, 11:22 PM
It's been said that the judges dredged up the case to rehear after Heller, but my impression was that the case was still alive and that it was the parties that reinvigorated it, not the judges. I could easily be wrong about that.

We aren't going to lose in front of the three judge panel but if we did we would still have to appeal en-banc. Also, there was no obligation that the same panel keep this case. This panel chose to retain jurisdiction just shortly after Heller was decided.


Question: Is there is a substantial difference between "privileges and immunities" incorporation and "selective incorporation?"

They are dramatically different. P&I has been pretty much thrown out over time and mostly because of racism and later real worry about union and socialist over-reach in the late 1800's and early 1900's. Further, total incorporation hasn't been accepted as there are a lot of procedural rights that don't get to the substantive issues. Things like grand jurys. It's not clear a grand jury protects the accused rights better than an information and a preliminary hearing (in fact grand juries can be bad to individual freedom.) As such selective incorporation has been the way that the individual rights get incorporated.

-Gene

DDT
02-12-2009, 11:37 PM
Question: Is there is a substantial difference between "privileges and immunities" incorporation and "selective incorporation?"


They are dramatically different. P&I has been pretty much thrown out over time and mostly because of racism and later real worry about union and socialist over-reach in the late 1800's and early 1900's. Further, total incorporation hasn't been accepted as there are a lot of procedural rights that don't get to the substantive issues. Things like grand jurys. It's not clear a grand jury protects the accused rights better than an information and a preliminary hearing (in fact grand juries can be bad to individual freedom.) As such selective incorporation has been the way that the individual rights get incorporated.

-Gene

I understand there is a dramatic difference in the basis for incorporation but I meant is there a significant difference in our rights as Californians if we gain incorporation through "privileges and immunities" rather than "selective incorporation?" e.g. Would "privileges and immunities" mean the Feds are responsible for all firearms laws such as CCW, sensitive places, DD, AW, MG ownership etc. but "selective incorporation" would only mean that the state laws would be held to the same standards as federal laws would be.

yellowfin
02-12-2009, 11:53 PM
They are dramatically different. P&I has been pretty much thrown out over time and mostly because of racism and later real worry about union and socialist over-reach in the late 1800's and early 1900's.
...

As such selective incorporation has been the way that the individual rights get incorporated.

-GeneCan that be possibly revisited since we're past the time of state sanctioned racism (though the much hated Mulford Act stands at the moment), so the cases that encouraged or validated it be considered bad/expired law? We're getting Cruikshank and Presser tossed, so why not get P&I back while we're at it?

hoffmang
02-13-2009, 11:00 AM
I understand there is a dramatic difference in the basis for incorporation but I meant is there a significant difference in our rights as Californians if we gain incorporation through "privileges and immunities" rather than "selective incorporation?" e.g. Would "privileges and immunities" mean the Feds are responsible for all firearms laws such as CCW, sensitive places, DD, AW, MG ownership etc. but "selective incorporation" would only mean that the state laws would be held to the same standards as federal laws would be.

If SCOTUS were to incorporate the 2A via P&I, it shouldn't have any real difference. However, I worry that it gives lower courts room to wiggle and say that somehow it is different than rights incorporated via Due Process.

It's a small concern but a concern nonetheless. The only court that can reverse the P&I issues is SCOTUS and there is a non-zero chance that they would has Thomas has advocated that in previous concurrences.

-Gene

7x57
02-13-2009, 11:26 AM
The only court that can reverse the P&I issues is SCOTUS and there is a non-zero chance that they would has Thomas has advocated that in previous concurrences.


My reason to want to put the P&I clause back in the Constitution is simply that this is what it says. There is never a safe way to nullify the plain meaning and never a way to keep the hermeneutical damage confined to that one part.

But it sounds like it would be safer if the two issues were kept separate, with the 2A incorporated via the due process fiction and the P&I clause reinstated, if at all, at some other time.

7x57

tube_ee
02-13-2009, 12:40 PM
God given Rights. :79:

While I understand the premise you're articulating, (though I disagree), you might consider being careful about making that argument.

Here's why:

If God (Gods) does (do) not exist, or didn't actually give His (Her/Their) creations the Rights you're asserting, (and none of these assertions are within any human's power to prove), then the whole foundation of the Rights we're trying to defend is ripped away.

It is, IMHO, far better to simply assert that these are human rights, that we have them simply as a consequence of our common humanity, and that, as such, no Government may remove them without sacrificing its legitimate power to govern.

Making this into a religious argument adds nothing useful, and might actually put us on shakier ground than if we didn't use such arguments.

Respectfully,

--Shannon

DDT
02-13-2009, 12:48 PM
It's a small concern but a concern nonetheless. The only court that can reverse the P&I issues is SCOTUS and there is a non-zero chance that they would has Thomas has advocated that in previous concurrences.


It would seem possible that because the second amendment is so integral to the preservation of our culture and also well ingrained in most places that it could be incorporated on both grounds. This would seem to give the strongest foundation for us to build upon.

7x57
02-13-2009, 3:14 PM
While I understand the premise you're articulating, (though I disagree), you might consider being careful about making that argument.


But your argument is also extremely dangerous, albeit in a more subtle way.


It is, IMHO, far better to simply assert that these are human rights, that we have them simply as a consequence of our common humanity, and that, as such, no Government may remove them without sacrificing its legitimate power to govern.

Making this into a religious argument adds nothing useful, and might actually put us on shakier ground than if we didn't use such arguments.


There is no shakier ground that what you propose: that rights exist whose origin we cannot discuss. There are a small handful of views on this subject, two of which are at least consistent. I am rather concerned about the consistency of the others.

(1) Human rights have an objective existence, regardless of any human opinion. (Example of what I mean by objective existence: if every man in the world believes some particular individual has no rights, even the individual himself, that has no effect on the fact that he does, in fact, inalienably possess those rights and that it is morally wrong to violate them. Slaves possess rights even when so degraded that they do not even recognize themselves as possessing them.)

(1a) Human rights have a preternatural, metaphysical origin (I state it that way so as to allow the possibility of non-divine supernatural origin, as will be significant in discussing option (2) below). Divine origin is the most common example and the one enshrined in the Declaration of Independence: in this version, God is the source and guarantor of Human Rights.

(1b) Absolutely nothing is known or can be said about the source, origin, or guarantor of human rights. "They just are," and the best we can do is stick our fingers in our ears and say "la la la" when asked for further details.

(2) Human rights are, at best, a consensual construct. They exist because a broad consensus of humans agree they exist.

(3) Human rights are simply a legal construct. They do not exist apart from the law. The RKBA does not exist, for example, unless the Constitution as interpreted by the courts grants it a real effect, and it does not extend beyond what that interpretation mandates.

Now, position 1a is consistent, or as consistent as the underlying philosophical or theological system. It allows me to clearly state your moral obligation to respect another's rights even when it is very expedient to do so. However, it requires invoking some notion of deity or at least higher moral law, and as you say this presents a serious dilemma for an atheistic or agnostic libertarian.

Position (3) is also consistent. However, it does not actually contain rights in the sense most of us mean them; they are neither universal nor do they mean more than that the government (possibly at our behest, as in the ratification of the US Constitution) has granted them to us. Rights are granted and, I suppose we may say, "alienable." This position is extremely seductive for those in positions of power, of course. Particularly with regard to the 2A; having private arms dependent on their sufferance is in fact the ideology of every tyrant and dictator.

Position (2) is essentially the position of the more respectable Socialists, and it fits their pseudo-Darwinistic narrative of history. In fact, it is only safe if their view of history is true, which is a terrible flaw not usually commented on, and even in that case it is only safe because it has become a disguised version of (1a). The Social Darwinist can feel safe with this system because he has a metaphysical commitment to an ever-improving social consensus; the synthesis that replaces the thesis is always better than the thesis. But this means that he has accepted two supernatural ethical axioms: first, that there is some measure of ethics (otherwise, we could not even speak of "improvement"), and this measure must at least be supernaturally identified even if the standard itself is based on human consensus (without supernatural specification there is no way to identify the consensus as the correct measure rather than, say, the bible, the teachings of Confucius, or the opinion of the Wisest Man In The World), and second that the overall social consensus will improve according to this measure. But those two assumptions are not statements of fact but assertions of ethical reality, and as such perform exactly the same function that God does in the Declaration of Independence. In essence, if you take this position Social Darwinism has functionally become your God.

This position is part of the worldview behind the "Living Constitution" legal hermeneutic. As rights come from a consensus, then the Constitution itself is simply a tool to be manipulated in forming and defending that consensus. It doesn't matter that the founders had no concept of some right; if the evolving social consensus now believes some right exists, then it must be found in the text by any means necessary (this game is at least as old as the classical philosopher's game of finding neo-Platonist philosophy in Homer where it surely does not exist, so at least the pedigree is ancient if not respectable).

Non-Social Darwinists, on the other hand, cannot accept at least the second assumption, that of increasing ethical standards, and that is fatal to position (2). For if the consensus might get worse, and not better, then no rights exist. What we might think of as a right will not join the panoply of already identified rights forever, but might tomorrow be disbelieved. The examples of the twentieth century should make any non-Social Darwinist shy away from trusting consensus. And that is one problem with the "Living Constitution"; it can only defend rights if they do not need defending in the first place, because the consensus never goes backwards. If it is possible for one of the most technologically advanced countries in Europe to adopt an irrational ideology of scapegoats and absolute leaders, one must be concerned for the true consequences of this belief. (Yes, I've tripped Godwin's law in one sense--but I claim the example is not only not exaggerated, but paradigmatic--however, I could have substituted any of the other murderous regimes of the twentieth century from both "left" and "right" with some measure of popular support. I prefer Hitler mainly because the National Socialists came to power though mostly legal means.illustrating some measure of consensus on the part of German voters.)

The 2A libertarian has a particular problem with this position--to be honest, he would have to concede that if the vast majority of Americans wanted guns to be illegal, then no RKBA would exist. Are any of us really prepared to assume that it is impossible to lose the consensus? I certainly will not--in fact, I believe we nearly did. Some of the antis are even willing to use language that betrays what is going on: Alan Dershowitz, I think, says that the 2A is "outdated." I believe he is speaking carefully and correctly; according to him, the consensus has moved on, and at best the 2A was a temporary bootstrap expedient for a society that has "evolved past" using violence to solve problems. Fortunately, he's honest enough to see the danger and the foolishness of reading it away instead of amending it away.

This brings us to position (1b), which you seem to be advocating. It certainly allows the broadest possible libertarian tent, and so for that reason is very attractive. Politically, it is by far the *most* useful position, which I believe was your point. The problem is, it is not complete, and therefore not even consistent. It imposes a blackout on the most obvious metaphysical questions. And if you refuse to answer such questions, if I am rational I must begin to doubt that in fact you have good grounds for knowing that human rights even exist at all. You have to answer the question, or you cannot expect succeeding generations of a civilization to accept your assertion that there are rights they must respect.

But what happens if you try instead to answer such questions? It is not possible for you to express my obligation to respect your rights in this system without violating the self-imposed blackout and retreating to one of the other positions. You have no grounds for saying I "ought" to do anything. You can say I "must not" violate another's right to life, but cannot really answer when I ask "why?" You can say it is good for society, but this is a metaphysical shell game: you cannot say why I should care about society any more than you can say why I should care for any individual. You can try to say that in the long run I will profit even if in the short run I do not, but this gives up the very concept of an ethical principle for a more accurate calculation of expediency. There will always be plenty of situations where I know I am likely to be able to take advantage of another with impunity. If you cannot say why I must not do this, you cannot teach ethics to your children.

Thus the problem if human rights is a special case of the problem of ethics (not surprisingly). Either ethics are objective, or they are not. If they are not, then there is in the long run no liberty; but if they are, then you must offer grounds for me believing they are so. And those grounds cannot be natural, for there is no deductive rule that produces an ethical "ought" from a factual "is".

The most I can do is to call your argument a useful political platform, a tent to cover anyone with some belief in absolute ethics no matter their origin. I am unconvinced it is enough, but we can hope it has some value.

7x57

tube_ee
02-15-2009, 3:17 PM
Although I would say that resting our theory of Rights on a foundation, (call it "God",) the actual existence of which none of us can prove (or disprove), reduces the whole argument to one of personal belief.

If you claim that your rights come from a God whose existence you cannot prove, what obligation has anyone who believes in a different God, (or none at all,) to respect your rights?

It ultimately reduces to "I think this because I do"... which gets us nowhere. Because our opponents believe differently, and just a fervently.

Politics ain't physics.

Let me put it on a more personal level, and let's see if any clarity results:

Suppose I grant your principle... that the right to bear arms for self-defense derives from a divinely-granted, absolute right to life.

I am a committed non-believer. In fact, I run closer to Hitchens' "anti-theist", in that I do not wish it were true, and am quite glad to think that there is no reason to think that it is.

If you're right, do I have rights?

If I'm right, do you?

And why?

It's non-trivial, to be sure...

Thanks for the discussion... I think it matters... a lot.

--Shannon