Happy Monday, y’all! Hope all of you up in Yankee land survived the polar vortex!! Today’s post comes to us from Stephen Hall. Thank you, as always, Stephen. Everyone have a great week!!!
Close up of the Constitution of the United States of America with quil feather pen
Some time ago, I had occasion to have a rather interesting discussion with the author of an internet post regarding a recent 9th Circuit decision regarding laws prohibiting illegal aliens from owning and possessing firearms and her theories upon why the typical 2nd Amendment advocates, that is conservatives, did not appear to leap to the defense of the “rights” of these illegal aliens.
“Obviously, then, it must be that they are not citizens and therefore the constitution does not apply to them. But that doesn’t square with the position of many gun rights advocates who insist that gun ownership is a “natural right” endowed by God, not the government.” Em Carpenter, @wvEsquiress on Twitter, https://ordinary-times.com/2019/01/23/unalienable-except-for-those-people/
It was this basic misconception of the nature of “natural rights” and its connection to the state which we had occasion to discuss. It is a common misconception of certain legal scholars and philosophers regarding the scope and meaning of “rights” under the umbrella concept of natural law.
For those unfamiliar with “Natural Law”, the basic idea is that any law made by man is but an attempt to articulate and understand those abstract principles of metaphysics which govern the true nature of man. The idea is that the true law, whether it comes from God or Nature or simply the physical laws of the universe, exists to be discovered by man. In point of fact, the origin of the Natural Law as divine or mundane is irrelevant just so long as it is objectively true.
In simpler terms, natural law is that law which follows the rule of reason, and that which defies reason cannot be an abstract truth of the nature of reality.
To the extent that any law deviates from this abstract ideal law, the application of that law will naturally create problems and conflicts. Injustice arises from the errors in law where the law itself fails to follow the proper natural law.
From this notion of natural law, it becomes easy to misconceive that because the natural law itself is abstract and universal that it would follow that every law should be also universal and apply to everyone equally.
In that particular question of the article, the idea that a law would be different for a citizen versus an illegal alien, in particular because it is a “right”, means that a person’s rights are contingent upon a person’s status as a citizen and not their status as a human being.
She contended that in order to be a “natural right” a right must be universal if those rights do not originate with, or come from, government but come from God or Nature. But, does it necessarily follow that a natural law must be universally applicable? If the origin of a “right” is endowed upon the individual by their creator and not the state, then do not those rights apply equally to everyone?
The simple answer is no.
The more complex understanding requires us to revisit the nature of the word “right”, as I have stated in columns in the past, a “right” is a prohibition of state interference. It is of a civic nature, as opposed to a civil nature, and often slandered by modern legal scholars as a “negative right” as opposed to an entitlement which they mislabel as a “positive right”.
The Latin root “civ”, meaning city, is a catchall root for the generic “state” going back to early city-states and forming the basis for words like “civilization” itself.
That which is “civic” is defined as that which is between the state and the citizen, as opposed to that which is “civil” which is defined as that which is between one citizen and another.
A “citizen” cannot exist if there exists no “state” for them to be a citizen of. The designation or classification of a person as a citizen or an alien exists only in the context of the state itself.
Does that mean that the idea of citizenship is a creation of the state? It might be better to ask if there can exist a state without citizens? Without citizens, there is no state; and without a state, there are no citizens. One does not create the other, but one cannot exist without the other.
It is a simultaneous creation of existence, the state, the citizen, and the alien. For what is an alien but a person who is not a citizen, and what is a state but the abstract division and separation of those who are citizens from those who are alien.
It then does not follow that it would be natural for a state to treat citizens and aliens alike in every respect and regard. It also does not prohibit the concept that there exist some universal natural rights to say that there are some rights necessarily reserved in the citizen/state relationship which are not applicable to the alien.
Crimes against murder and theft, for example, by natural law or the rule of reason ought to apply to the alien as well as the citizen, though there have been many societies where such ill treatment of an alien by a citizen were permissible, it is generally the mark of a barbaric rather than a civilized society. (Crimes, being also of a civic nature, are quite appropriate and illustrative analogies of rights.)
However, the fact that an alien, even one who has entered the country illegally, ought be protected from theft and murder does not make it appropriate for an alien to vote or obtain a drivers’ license while in a foreign state.
Civic laws, rights and crimes, must naturally distinguish between the citizen, the legal alien, and the illegal alien just as civil laws distinguish between a property owner, an invitee, and a trespasser.
To fail to make distinction between the various status of people is to violate the very fundamental principle of civic, of the relationship between the citizen and the state. Without regard to a person’s status is to disregard the very basis of natural law itself.
There exist fundamental, and universal natural laws as well as those natural laws which regard the status of the individual and treat people in different positions as appropriate according to their status.
Going back to the example in Mrs. Carpenter’s article, it is unquestioned that under the rubric of natural law there exists an universal right of self-defense, however it does not follow from the right of self-defense that the 2nd Amendment right to keep and bear arms is necessarily also universal.
It was recognized that even a slave has a natural right to defend his person if attacked, and if he should kill his attacker he is not guilty of murder. It does not follow that slaves in a society where such was legal would be expected to be armed, or expected to be permitted to be armed.
Interestingly, in the frontier days of what was then Virginia, now West Virginia, I have read histories where slaves were commonly armed and fought alongside their owners against the hostilities of marauding Indians. But, in later days and in more settled regions it was often illegal to arm slaves lest such armaments lend themselves to revolt.
Clearly such laws are not universal, as it would not follow that it is beneficial to society in all circumstances to either arm nor disarm such persons. Applying such reasoning to an illegal alien, being already a criminal as well as being foreign, to arm such illegal aliens, or even to permit them to arm, would be as much as inviting a foreign army to take up residence within the state’s borders. One has visions of Goth and Visigoth uprisings within the Roman empire leading to its imminent destruction.
With regards to legal aliens, there exists no such motivation for revolt, and no particular natural reason to either allow or prohibit their possession and ownership of arms. A legal alien, much like a civil invitee, carries no innate reason to suspect hostility to the host nation, in fact, one would reasonably expect them to be more than kindly disposed to their host nation.
One further Constitutional consideration regarding the application of “rights” in the Constitution and the concept of the Founding Fathers regarding the recognition of Natural Rights by status as opposed to Universal Natural Rights.
The Founding Fathers’ clearly delineated this if one actually pays attention to their words. “We the People of the United States, in Order to form a more perfect Union . . . .” The citizenry is repeatedly designated as “the people” as opposed to the state; one has to pay special attention when the words “the people” make their appearance.
The “right of the people” appears in amendments I, II, & IV, but not in III, V, VI, VII, or VIII, but does not even apply to all of amendment I. Those designated “right of the people” denotes rights of citizenship, but where the “right of the people” is not put into the language those rights are clearly meant to apply universally to all persons.
If you read the two remaining amendments of the Bill of Rights, amendments IX and X, this distinction is crystal clear: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
(PS: I would like to apologize to my faithful readers for my unscheduled illness last week. I shall endeavor to avoid such human failings in the future.)
