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Four Black Men and a Gun

September 19th, 2010 by Jim May · 5 Comments · Uncategorized

Back in July, Marcus Cole at PileusBlog penned a wonderful post, describing the importance of the individual right to bear arms in connection with the freedom of blacks to take up arms in self-defense amid recurrent failure of government to do its job of defending them (to the point of aiding, abetting and even mandating racism itself).

The best part, however, is how Cole proceeds from this point to challenge the liberal-conservative assault on the open-ended nature of individual rights.  This is the principle that individuals act by right (i.e. they are free to act as they please except for certain things prohibited by law) while governments act by permission (i.e. government cannot do anything except what is permitted to them by law).

Here’s the best part, where Cole lays bare the complicity of both leftists and conservatives in the assault on individual rights:

“…constitutional law scholarship in most law schools has become a closed, insular conversation among both liberal and conservative law professors who have, in their own ways, become completely at ease with the sweeping scope of government power in a world devoid of the “privileges or immunities” clause. Liberals dislike the “privileges or immunities” clause for fear that it might legitimate the kinds of unenumerated rights they hold in contempt, like the rights to property and freedom of contract.  It is not a coincidence that these are precisely the rights that the Reconstruction Congress sought to protect with the Civil Rights Act of 1866.  Likewise, conservatives, including the plurality in McDonald, are uncomfortable with the “privileges or immunities” clause because it legitimates unenumerated rights, like the right to privacy recognized in Griswold v. Connecticut and Roe v. Wade.”

Emphasis mine.

Note especially that last bit, a nice slap in the face to Jones and his ilk.

There are flaws in Cole’s argument, in particular the idea of the P or I clause as the protector of open-ended liberty (as if the Ninth and Tenth Amendments were never written), and of course the reliance on the concept of citizenship as the basis of rights, an idea which I refute here.  These flaws, however, do not affect the validity of Cole’s badly needed identification of the Left and conservatism as being an historically and politically collusive threat to the principle of  individual rights.

The comments to Cole’s post are also interesting, in part because the very first one immediately raises the question of the Ninth Amendment.  There’s also a  conservative who posts the usual conservative memes, under the handle “Vader”, and then a fisking thereof by yours truly, posting under the handle “Seerak”, which I append below. (The passages in italics are quotes from Vader’s comment.)


Marcus Cole: this is a great post. Rare are the voices that recognize that the threat to America and the idea it represents comes from both the Left and conservatism; they differ only in particulars, not in principle.

The aptly named “Vader” provides the evidence.

A more fundamental difference between the two views is that liberals regard the concept of unenumerated rights as license for judges to create new rights.

This is the indictment of conservatism from which they cannot escape; it exposes the lie that freedom is a conservative principle, and establishes the basic anti-Americanism that informs both that benighted movement and their Leftist siblings.

The Ninth and Tenth Amendments were intended as a catch-all, a constraint on government that essentially goes as follows: Anything we didn’t think of to include in the Bill of Rights, is not to be construed as an “unprotected” right.

There is no time limit to this provision. Rights, therefore cannot be “expanded”; they are already open-ended. It therefore applies to any and all particular choices that Americans may make, then or in the future.

Attempting to portray this as “creating new rights” is profoundly dishonest and disingenuous.

Whereas conservatives view the unenumerated rights as a mandate for judges to respect traditional rights existing at the time of the Framing

By that logic, the Second Amendment only pertains to muzzle-loaders and other “traditional weapons existing at the time of the Framing”…. or that the First Amendment only protects handwritten documents, printed pages and other “traditional forms of speech existing at the time of the Framing”.

In addition, the mislabeling of entitlements as rights (“right” to a “living wage”, etc.) allows the concept of unenumerated rights to actually justify expansion of government, not restriction of it.

Well, conservative, the catch here is that the entitlements, or so-called “positive rights” to particular goods or services, represent unchosen obligations imposed upon those who must provide the goods in question. The proper term to describe “unchosen obligations” is not “entitlement”, but duty.

Far from being opposed to such a thing, conservatives are quite fond of invoking “duty” when it serves their particular statist interests (the military draft, anyone?)

Describing positive “rights” as entitlements rather than duties, is just a verbal sleight-of-hand to obscure yet another Left-conservative commonality.

The notion of “duty” is directly antithetical to the notion of “rights”. The so-called “positive rights” are not an “expansion of rights”, but a horrific contradiction which undercuts and obliterates the very notion of rights.

5 Comments so far ↓

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  • Fareed

    wouldn’t this imply that we have a right to healthcare

  • Fareed

    never mind, didn’t read through the whole thing

  • c andrew

    I think that this shows that Hamilton in Federalist 84 was both right and wrong.

    He was right in saying that a Bill of Rights, in the face of a government constrained by a Constitution to enumerated powers, might evolve into a document considered exhaustive rather than exemplary. The Ninth and Tenth Amendments were added to address that issue.

    He was wrong in that, without some listing of Rights, the concrete bound power lusters of the past would long since have deprived us of any recognized rights. Thus, the Penumbras &c invoked by previous Supremes.

    I think that the Conservatives foreshorten the notion of individual rights because of their conviction that they are “God Given” instead of arising from the nature of man. And because they are God Given, certain actions are not done by Right for surely God would not give Man the Right to do Wrong.

  • madmax

    And because they are God Given, certain actions are not done by Right for surely God would not give Man the Right to do Wrong.

    Very well stated. This says so much about Conservative ideology in so few words. Excellent.