Debate Magazine


Posted on the 19 November 2011 by Mikeb302000
There is all this talk about claiming rights which are either natural or god given, which is fairly nonsensical since anyone can claim anything as a right. The real hitch is enforcing that right.
Not to mention the idea that a right represents can change with time, such as the Second Amendment of the US Constitution which is supposed to protect the institution of the Militia, but has been perverted to some personal right to firearms outside the context of that right.
I ask does a similar concept of "gun rights" exist in other common law jurisdictions, yet no one can provide an analog.
Greg points to state constitutions, but State Constitutions can expand upon the right--they cannot subtract from the right.
I decided to look up The Universal Declaration of Human Rights. This document contains many interesting rights such as
Article 3's Everyone has the right to life, liberty and security of person.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 27: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
But, despite all the wonderful rights I've mentioned "Gun rights" and "a right to armed self-defence" is conspicuously absent.
Why is this? Is it because those rights do not follow the general scheme of the Declaration:
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

If we go by this document, the US Constitution allows for the rule of law (if it existed in the US) as a buttress to the rights mentioned in the Bill of Rights, not arms.The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352
"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are:
i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.
So, if one claims a right, one needs a source to back up that right and a legal basis for claiming that right. Not to mention for it to truly be effective, that right needs to be enforcable under the legal system.
If we are getting into the Second Amendment, post-Heller, federal and state courts have rejected Second Amendment challenges to a wide variety of firearms laws nationwide. As discussed in Section IV below, the majority of Second Amendment challenges have been raised in criminal cases. These challenges have been largely unsuccessful, as courts have found that the Second Amendment is consistent with numerous federal and state criminal laws. Since the Supreme Court’s Heller and McDonald decisions, the nation’s lower courts have been clogged with a substantial volume of Second Amendment litigation, despite the fact that most, if not all, federal, state and local firearms laws do not prevent a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense, and thus, would satisfy the Supreme Court’s holdings in those cases.

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