No Conflict of Rights

I’VE DANCED AROUND the perimeter of this question for awhile. This evening, I think I came up with a nutshell formation of the issue, now let’s see if I can get it down in pixels.

The relevant part of the Second Amendment to the U.S. Constitution reads, “…the right of the people to keep and bear arms shall not be infringed.” There are commas in there that, according to modern style, seem irrelevant, and I take the view that they do not affect the sense of the whole, so are irrelevant.

First, and has been argued most thoroughly elsewhere, “the right of the people” presumes a freestanding and extant right, which the document does not seek to grant, merely to affirm its existence and forbid the government from infringing on it.

Or does it? Forbid the government? That prohibition has an interesting wording. “…SHALL not be infringed.”

You may recall from your reading of the Amendment, or from other discussions on the topic, that the First Amendment starts out, “Congress shall make no law…”

This, it is argued, springs largely from the fact that, at the time the Constitution was framed, several of the States had state religions, and religious tests for office. This perquisite of state was jealously guarded and nobody wanted the Federal government meddling in the matter. So there was a specific prohibition lain on Congress that it may not legislate in the matter.

But not the States.

But, that being the case, turnabout’s fair play. In none of the rest of the Amendments is there the wording specifying that it is Congress being the sole party limited here.

I argue, in fact, that these proscriptions are absolute, as is crystal clear from the wording. No one — no actor, whether state or private, Federal, State, County, Municipal, Village, or Dog-catcher — SHALL infringe upon these rights, except as limited by these texts. (SHALL being as though and having the same force as a divine commandment, a distinction largely lost in our linguistically lazy times.)

Nobody — not even a private person — may infringe upon the right of the people to keep and bear arms.

Now, if you think about it, this makes perfect sense. After all, if any Tom, Dick, or Harriet can infringe Willy-Hilly on an individual right, so long as they’re not the State or an Agent of the State, then you pretty much have chaos and anarchy — a state which, the Jefferson Airplane* notwithstanding, nobody is very proud of. For a society to exist in ordered liberty, individuals must respect one another’s rights, and the law must recognize that requirement for respect, or … as I said: chaos and anarchy.

Which means… Those signs in the grocery, with a revolver in black ink on a white background, surprinted with the international “NO” barred circle in red? Pretty much unconstitutional.

Wait just a damned minnit, here, Alger! I saw you palm that card. You just named the conflict between individual right to keep and bear arms and private property rights. After all, those grocery stores am private property, ain’ they?

Well, possibly. But … follow me on this … they are also public accomodations.

::wobbitawobbitawobbitawobbita::

I understand your confusion. You see, although private property rights are not enshrined per se in the Bill of Rights, they are implied in the penumbrae of the Third, Fourth, Seventh and Ninth Amendments. That is, there is no direct reference to a “Right to Property,” but restrictions on infringements on the right would seem to imply its existence. On the other hand, the right to exclude someone from entering your property would also seem to arise from the right of free association. Or the right to freely NOT associate, if you follow my drift.

But history tells us that a consensual society’s moral strictures can be turned against it by individuals or groups of ill intent, such as… oh, latter day communists or muslims. And, in the days of Reconstruction et sequelae, such individuals (mostly Democrats, I should point out), engaged in such behavior directed at former slaves and those who resemble them by virtue of enhanced melanin in the skinnal area. That is to say bitter-enders and Progressives used a property rights and free association argument in favor of invidious discrimination against black folk in America. This was not only invidious, but in many cases, it was life-threatening. And so, in the spirit of Something Must Be Done and In A Hurry (and thus my assertion that nearly all bad political ideas are born of impatience), we… well, not “we,” since I didn’t participate and don’t approve … “we” abrogated property rights and the right of free association in the special class of Public Accomodations, mandating that discrimination in these cases is Hereby Made Unlawful.

Baby, meet bathwater.

But, as we say, the die being cast, turnabout is fair play. If equal treatment under the law requires that private property rights be abridged and rights of free association infringed in this special case, then it also demands that, while you may be allowed to forbid an armed person to come into your home (and good luck with that) … in your public accomodation — bar, restaurant, hotel, grocery store, zoo, museum, or amusement park… Not So Much.

OK. Your logic seems sound. Now get it enforced.

Oh, that’s not happening for a donkey’s years, yet. But Confuscius had to put one foot in front of the other just like everybody else.

WTF?

“The journey of a thousand miles begins with a single step.”

Oh.

(*And they are very proud of themselves…)

There. Let that marinade for awhile and see how it stands up.

Leave a Reply

Your email address will not be published. Required fields are marked *