Title is wrong. You have the right to speak. You have the privilege to remain silent.

(I misrepresent Bentham, somewhat - "nonsense upon stilts" was, more correctly, his view of the idea of natural rights as opposed to legal rights)

I'd like to drag in our old friend the 2nd Amendment as a perfect example of this...

I maintain, while LEGALLY it is a right, in essence it is a PRIVILEGE.

There is nothing intrinsic about God's Creation (or that of the Flying Spaghetti Monster, for that matter, just to play both sides) that says 2WL and Draugnar and everyone else is allowed a gun, let alone all guns.

Our Founders thought this was a good idea back in the 18th century...I maintain they'd think and say differently in the 21st, but in any case, the fact remains that while the 2nd Amendment is a legally-protected "right," I'd submit it's also a legally-CREATED right, and as such, being an artificial right, it's a privilege, really...

Which leads to our debate today, as privileges can change...but we don't like to see stone-cold rights change or be revoked.

By contrast, the 1st Amendment is far closer to an actual intrinsic "right," I'd say--

It's an intrinsic, natural inclination to be able to say whatever you wish, and suppression of that right is rarely if ever acceptable (the obvious exception being shouting "Fire!" in a crowded theatre.)

Ok now I can usefully cite Bentham.

Surely there is nothing intrinsic about God's creation that gives you ANY rights at all? Rights are either established in law, or are meaningless.

Noansense is noansense, oan stilts or nae.

@JamietUK:

"That depends on your view of the concept of rights. I'm sure you know what Bentham had to say about the idea, for example... "Nonsense upon stilts!""

I agree with that...in part--

I think Locke and Jefferson actually cover a great many if not (perhaps) the majority of real, "natural" rights:

Right to Life, Liberty, the Pursuit of Happiness, and the Protection of Property.

All animals pursue such goals, in one form or another...seems a natural right to me.

"Speech" I'd say falls in there was well.

The thing is, in my view, actual rights are RARE. VERY RARE.

That's why they're so precious...and part of the reason I take such issue with some (NOT ALL BUT *SOME*) of the gun lobby in this country clutching to their guns and reacting with shock, outrage, and moral indignation at the talk of any gun control legislation at all whatsoever, as if the 2nd Amendment were the 2nd Commandment (which wouldn't help us either, I might add, but still...)

Arthur Wilton Brown!

Animals regularly violate each other's "right" to life, though, don't they? If a fox eats a chicken, do you say that the fox violated the chicken's rights? How is that meaningful?

Clutch yer guns

Obi - why must you bring my name into this? Especially on the gun argument when I am for gun control (full auto weapons need more controls to try and keep them out of the hands of the criminal and mentally unstable in society). I just don't believe in banning all guns.

So why slut my name and disparage me when I have said nothing to you in this thread no ever argued for the complete free flow of guns.

Does anyone understand this thread? I find it incomprehensible.

"I maintain, while LEGALLY it is a right, in essence it is a PRIVILEGE."

I mean, it's either semantic masturbation or rank ignorance of what words mean in context.

It's more accurate to think of rights as "freedom from" things. Or, rather, it's not so much that one has the inherent right to free speech, etc etc, but that a human being by virtue of humanness (I would say God-given rights, but there are other ways to frame it) has the right to be free from harm or restriction when that individuals decides to behave in such ways.

For the Second Amendment specifically, we might say that individuals have the inherent right to self-defense, from each other and from their government, as well as the right to be free from the kind of government which has the power and willingness to disarm the population. The wording of the amendment is a period-appropriate way of phrasing that. You can look at several others constitutional/legal rights the same way ("the right to remain silent" being shorthand for a requirement to be treated in certain kinds of ways by a legal system).

That is an interesting article. I think the government should err on the side of respecting rights and limiting its intrusions into people's lives, but that view seems to be long out of fashion.

*slur not slut...

CK, we do seem to be entering a post-law period, where the laws are only used to club one's political enemies, and exceptions are granted to the favored.

Haha, sure, that's what you meant Draug...

Mujus, I agree strongly, and it's very unfortunate. Worst of all, I am not sure how one would go about fixing it. Respect for the rule of law is very easy to erode. Building it back up is a far tougher task.

"Obi - why must you bring my name into this? Especially on the gun argument when I am for gun control (full auto weapons need more controls to try and keep them out of the hands of the criminal and mentally unstable in society). I just don't believe in banning all guns.

So why slut my name and disparage me when I have said nothing to you in this thread no ever argued for the complete free flow of guns."

Because I honestly screwed up and thought you were in the anti-gun control contingent at the time I posted, and then I thought "Wait..." but too late, it was off and posted.

So I look stupid, nothing new, nothing to see here, mea culpa, mea culpa...

I personally think that Westerner's fascination with rights is part of what makes most of us unhappy. I think that we'd be better off finding another framework of thought to extend the freedoms that we enjoy into a social context.

Jamie, there is a difference between human beings and animals.

And while it is true that if the regime one lives under fails to recognize your human rights, then they are severely limited; nonetheless, that doesn't mean you don't still have those inherent rights as a human being. Otherwise, how could we ever appeal to those principles as a way to critique a regime? How could we argue that the rights of blacks under segregation were being infringed upon? That was the established law, after all. No, our human rights to life, liberty, etc. are sacrosanct.

And the right to defend your own life is one of those rights. Hence the right to bear arms.

"I mean, it's either semantic masturbation or rank ignorance of what words mean in context."

Well, that's either idle sniping or just good old fashioned heckling from the peanut gallery...

So please, enlighten us, Invictus, and give your take, rather than just taking the piss out of what someone else gives.

. . or we's gonnae take them aff ye an' batter ye aroond the heid wi' the blunt wooden end.

If no one objects, I might add another bit of kindling to the dialog here.

Namely, I find it as interesting what the Founder's (of respective nations, etc.) chose to leave out of our foundational documents, what they chose to include.

For example, if you give the Constitution of one of the Western powers (say perhaps the former British Colony of the United States) a close reading, what you'll see is how closely the document reflects the issues of the day, articles that were no doubt foremost on the author's minds.

The United American States, as alluded above, had recently emerged from a military conflict with a European colonial power, one primarily over economic freedoms. The American Constitutional Document reflects this. Most of the language intended to structure the government emerged as an effort to prevent the development of a King, a British figure deeply resented by most recently liberated colonists. Most of the freedoms outlined in the Rights Bill were meant to enshrine freedoms that had been hotly contested in the Old Country.

Other liberties, perhaps liberties even equally important, were left out for no reason other than it probably didn't occur to the Founder's to include them, or they didn't want to muddy already occluded dialog with what must have seemed common-sense issues. For example, why do so few (if any?) constitutions mention an individuals right to own a dog? I'd conjecture it is because it hadn't occurred to the Founders that anyone might want to limit this sort of freedom. Dog ownership hadn't seemed worth mentioning.

Now, unfortunately we are left to conjecture what our ancestors would have intended had the issue of dog ownership been put to close scrutiny. Or perhaps more pressingly, homosexual marriage, flag burning, pregnancy abortion, automatic weapon proliferation, internet freedom, online gambling, cannibus smoking or school-based worship.

Did George Washington even own a dog? I'll admit that I don't know. We're left to put words in the mouths of the Founder's that suit our individual purposes, especially on issues where they offered little in the way of advice.

I've always been uncomfortable with the 'something for nothing' feel of so called 'natural rights'. There are two reasons for this:

1. It always felt more logical to me that every right should have a corresponding duty and that the right was generated by performing the duty (or the other way around). An example would be that by allowing others free speech I earn the right to it myself.

2. Even with the structure above, a right has to be enforced to have any meaning. An earned right is meaningless unless someone or something is able to enforce it. Individuals rarely have the means to do this which means a government or organisation has to. Functionally and practically that must limit what rights are available (just look at how much trouble and effort is generated by some of the more vague rights in the ECHR).

Putting those two together: the corresponding duty and need for enforcement - natural rights just don't seem to make any sense. The idea that simply for being born I have a right to anything seems absurd. It is only through my actions and the enforcement of that dynamic by organised groups of rights-duties bearing people that a 'right' is generated, sustained and has a (hopefully) positive affect on everyone's lives.

*effect. Grammar fail.

You're just defining what rights and privileges are based on your own whims, obiwanobiwan, and using the argument as a vehicle to rag some more on guns.

By your definition "intrinsic, natural inclination" is what makes a right. That makes due process a privilege. Which means things like jury trials and not being forced to testify against oneself aren't actually rights because... you say so? After all, there's nothing natural about a trial. Much of the constitutional protections are wildly counter-intuitive. Mankind has no intrinsic inclination to ban double jeopardy. You're just defining what a right is versus a privilege based on your own whim at the moment, and to hell with centuries of tradition and scholarly works.

I really don't know what the point of all this is. It's just your usual solipsist ravings.

Al S,
Read the 10th amendment: "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." I think the Founders managed to cover their bases.

There were actually Founders who thought that listing the rights was a bad idea, as the failure to include a right could be construed as a lack thereof, or for fear that the language and interpretation of the Bill of Rights would end up being contentious (see the history of the 2nd Amendment for fulfillment of that!)

Obviously they didn't set down all the answers for all time. We have to use our brains and apply the principles set out in the Dec. of Independence and the Constitution. For instance, I am in favor of gay marriage, because I feel it is in accordance with every person's "pursuit of happiness." I think devoted gay couples deserve the happiness of marriage.

Hereward, I think the ECHR is a good example of what I just mentioned. It's too specific. It reads more like a piece of legislation than a set of principles, whereas the US Bill of Rights is a listing of principles, which we then have to apply and interpret.

And again, if our rights are not inherent, then they are non-existent. If society or the government generates our rights, it can take them away. Yes, if the government does not recognize human rights, then it is very difficult to fight that. That is why our modern era is so blessed and so unusual in human history.

obi, I disagree -- on a natural rights reading, the right to bear arms is indeed a natural one, since if there were no government and one was free in nature, nothing would stop one from owning a gun (and there is nothing morally reprehensible in doing so).

Government power comes from carving into such natural rights, and the second amendment describes one (of many) boundary past which they cannot carve.

I'm not saying you need to agree with natural rights philosophy, obviously, but on that philosophy (which was quite dominant at the time of the founding, and is still popular with many today), the second amendment does describe a right. It does not, however, *grant* it -- it merely protects it.

@ dipplayer2004: "Jamie, there is a difference between human beings and animals."

Yes, of course there is. I was responding to obiwanobiwan's statement:

"All animals pursue such goals, in one form or another...seems a natural right to me"

He seemed to be defending the concept of natural rights on the basis of observing the behaviour of animals. I would argue that this is a poor argument because there is little evidence that non-human animals have any respect for the notion of rights.