The Rights We Thought We Had

 

Erick Erickson reminds us of two bits of history that have become very important of late. One is Justice Robert Jackson's opinion in West Virginia Board of Education v. Barnette (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

 

And going much further back, Erickson introduces some English history which I had forgotten, if I ever learned it at all.

Many historians have come to view the American Revolution as a conservative revolution. The revolutionaries believed they were protecting their English rights from the Glorious Revolution of 1688.

They were, in effect, revolting to demand the rights they thought they already had as [Protestant]  English citizens. It is why, for much of 1775, they petitioned the King, not Parliament, for help because they had, separated by distance and time, not kept up with the legal evolution of the British constitutional monarchy in relation to Parliament. The colonists believed themselves full English citizens and heirs of the Glorious Revolution.

One of the rights that came out of the Bill of Rights of 1689 in England following the Glorious Revolution was a right to bear arms for defense against the state. The English Bill of Rights accused King James II of disarming protestants in England. That Bill of Rights included the language “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”

The Americans, however, saw the British government, via Parliament, begin curtailing the rights of the citizenry in the American colonies. When they formed the federal government with ratification of the Constitution, the colonists, now Americans, were deeply skeptical of a concentrated federal power...

 

And so we should remain. IMHO.

 

Want to read it all? The Purpose of the Second Amendment

Comments

[Mannie Sherberg]

There's no question that our right to bear arms pre-dates the adoption of the Bill of Rights. The second sentence of the Declaration of Independence refers to "certain unalienable rights," and then says that "among" these are life, liberty, and the pursuit of happiness. The "among" is absolutely crucial; it plainly implies that the three specified rights are not the only rights with which we have been endowed; they are merely examples of a larger group. Within two years of the adoption of the Constitution, a decision was taken to formalize the rights not mentioned in the Declaration -- and the Bill of Rights, including, of course, the right to bear arms, was adopted. There's no question that the right to bear arms was there all along, nestled -- but unmentioned -- in the Declaration. And there's no question that the idea, as Erickson says, goes back even further than the Declaration. Those who believe the Second Amendment can be changed at whim -- like the packaging on a box of breakfast cereal -- are ignorant of some of the most noble events in the history of Western Civilization.

[Yael]

One hardly ever hears the word, noble, in Obama's America. It is "gone but not forgotten" -- or more optimistically, "gone dormant, but not forgotten." Thank you, Mannie, as always, for your insightful commentary. I may not regularly respond, but I always appreciate it. -Yael