wa123

Supreme Court Mulls Indefinite Detention of Sex Offenders
“In spirited arguments, U.S. Solicitor General Elena Kagan
urged the Supreme Court on Tuesday to uphold a law that lets the U.S.
government keep behind bars inmates who have served their time but are
deemed ’sexually dangerous.’ …The case involves basic notions of federal
power and individual liberty and could affect potentially hundreds of
’sexually dangerous’ federal convicts.”
(
Los Angeles Times, Wednesday)
Ominous.
Rights Without Exceptions
By
Jeff
Snyder • April 2001 • Volume: 51 • Issue: 4
Jeff Snyder ( This e-mail address is being protected from spam bots, you need JavaScript enabled to view it )
is an attorney in New York City and is the “Gun Rights” columnist for
American Handgunner magazine. This article is adapted from columns he
wrote in the November/December 2000, January/February 2001, and May/June
2001 issues of that magazine. He is the author of Nation of Cowards:
Essays on the Ethics of Gun Control (Accurate Press, 2001).
The statements of rights in the Bill of Rights are categorical and
contain no exceptions. This form suggests that the rights referred to do
not vary to suit the circumstance, are not to be “outweighed” in
balancing tests with other rights or interests, and are not subject to
unstated exceptions: Congress shall make no law abridging the
freedom of speech or of the press; the right to keep and bear arms
shall not be infringed; the right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches
and seizures shall not be violated, and so forth. Qualifications
such as, “unless presenting a clear and present danger,” “except to the
extent inconsistent with public safety,” or “unless outweighed by a
compelling state interest” simply are not there.
Are those categorical statements of rights mere rhetorical excesses
cleverly penned to overcome the _object_ions of the Anti-Federalists to the
new federal government, while the Federalists well knew that the actual
rights were and would be subject to numerous exceptions? Are our rights
in fact subject to “reasonable” regulation in the interest of public
safety or for other good purpose?
Before inquiring into this matter, it is necessary to make some
preliminary observations to avoid misunderstanding. In arguing, as I will
below, that our rights are not subject to any exceptions, I do not
wish to be mistaken as arguing that we therefore may not be held
accountable for the consequences of the exercise of our rights, that we
may not be punished if we violate the rights of others, or that we may
not be deprived of life or liberty by due process of law.
I distinguish between exceptions to a right, by which I mean
instances in which the right is declared to be not available on grounds
exterior to the right (such as “public safety”) even though the
exceptions otherwise fall completely within the ambit of the right, and
the limits of a right, by which I mean, first, the activities
within the ambit of the right, judged by historical understanding and
historical practices and customs, and, second, how far the right extends
vis-à-vis others.
Thus I would consider the question of whether the right to keep and bear
arms includes a right to keep or carry stinger missiles or nuclear or
biological weapons a question of the limits of the right, not of
exceptions to the right. Historical customs and practices may reveal that
our forefathers understood the right to include only such arms as are
suitable to private and individual self-defense and the basic weapons
required for service in a militia, and not weapons whose overly powerful
or indiscriminate nature render them specialized weapons of mass
destruction suitable for use only in war. To use my terminology, cannons,
tanks, stinger missiles, and the like would be outside the ambit of the
right, rather than exceptions to it.
As noted, there is a second sense in which rights have limits, namely,
how far they extend as against the rights of others. In this regard, it
is important to note that the rights in the Bill of Rights are against
the government; they are not rights against private individuals.
They proclaim that the government may not exercise power over certain
activities; as between you and the government, it must suffer you to
engage in the activity that is within the compass of your right.
Government has no rights, only powers. Therefore, your right simply
disempowers it with respect to the protected activities. However, as
among persons with equal rights en_title_d to mutual respect, one right is
not a license to violate another. As between private persons, the limits
of a right are always the rights of others.
Thus it is never a violation or infringement of your right for government
to punish you for violating the rights of others (presuming, of course,
that this is done through due process of law), and your “right” does not
grant you license to violate, or grant you immunity from the consequences
of violating, the rights of others.
For example, the Second Amendment denies the power to the federal
government to infringe the right to keep and bear arms. The right exists
against the government only, and not private individuals. It prevents
government from imposing a prior restraint on the keeping and bearing of
arms (such as a permit requirement) or from criminalizing the mere
keeping and bearing of arms. But among private individuals, the right is
limited by the rights of others. If a movie-theater owner wishes to
exclude persons who carry weapons, his property rights en_title_ him to do
so, and if you carry in violation of his rights, you are trespassing and
the government can punish you for violating his property rights.


Are There
Exceptions?
With these distinctions and qualifications in mind, let’s examine whether
there can be exceptions to the rights in the Bill of Rights. Take, for
example, what is possibly the most bedrock, “common sense” gun
restriction on the books: the prohibition against the ownership or
possession of firearms by convicted felons. (We mean of course those who
have been convicted of a felony but are no longer serving time or on
probation, and have been fully released back into society.)
There seems to be no comprehensive historical or legal investigation of
this exception. The restriction seems not to have existed at the time the
right to keep and bear arms was memorialized in the 1689 English or 1789
American Bill of Rights. The great commentator on the English common law,
Sir William Blackstone, makes no reference to such an exception in
discussing the rights of Englishmen.
I asked historian Joyce Lee Malcolm, author of To Keep and Bear Arms:
The Origins of an Anglo-American Right, whether she was aware of such
a prohibition during the seventeenth and eighteenth centuries. She said
that she was not, but that it would have been something of a non-issue
because most felonies in those days were punished by death. The “felon
exception” thus becomes an issue only in subsequent generations, when for
humanitarian or other reasons more and more felonies are punishable
solely by imprisonment or, viewed from the reverse perspective, fewer and
fewer serious crimes (that is, crimes worthy of punishment by death) are
termed
felonies.[1
]
Clayton Cramer’s excellent history of the courts’ treatment of the right
to keep and bear arms, For the Defense of Themselves and the
State, contains intermittent discussions of the exception. The first
American court cases to discuss it appear in the early 1900s, suggesting
that the state statutes creating the exception were also enacted at about
that time. Early and modern state court cases upholding the exception did
so on the dubious ground that the Second Amendment does not apply to
state legislation and does not prevent the enactment of gun restrictions
for the public welfare. The exception was enacted into federal law in the
Gun Control Act of 1968.
Later state court cases upheld the statutes outlawing possession or
ownership by felons against challenges under rights to keep and bear arms
stated in state constitutions. In this regard, the experience of New
Hampshire is
instructive.[2
] In 1978 a proposed constitutional amendment recognizing the right
to keep and bear arms was put to the voters. The amendment, however,
contained clauses permitting the state to regulate the manner of carrying
weapons and excluding felons. It failed. In 1981 it was again put to a
vote of the people, this time without the two clauses, and it passed.

In 1990, however, the New Hampshire Supreme Court upheld the state’s
statute prohibiting possession of firearms by felons against challenge
under the New Hampshire right to keep and bear arms. Note the degree of
respect afforded to the question of the rights of persons expressed in
the heart of the court’s argument in support of its decision:
As the defendant concedes, the State constitutional right to bear arms is
not absolute and may be subject to restriction and regulation. Assuming
that the right to bear arms is no more absolute than the right of free
speech . . . a restriction . . . may be sustained if it “narrowly
serve[s] a significant government interest.” . . . The government
interest served by the statute, protection of human life and property, is
patently significant. [Footnotes and references omitted.]
Thus the court upheld a man’s conviction and the statute on the basis of
a concession by the defendant (readily accepted by the court without
citation to any authority) and an assumption! Actually, more than one
assumption, for implicit in the court’s statement that the felon
exception serves “the protection of human life and property” is the
belief that felons (despite the fact that numerous felonies are not
violent crimes against persons) will likely commit crimes with guns. Such
is the precedent, such is the intellectual rigor and concern, that
establishes a permanent exception to a right. Consider, in this light,
the notion that the courts are the guardians of our rights.
Can a convicted felon be denied his right to free speech or freedom of
the press? Can he be denied the right to assemble or to the free exercise
of his religion? May convicted felons be subject to unreasonable and
warrantless searches and seizures? May they, on arrest for a subsequent
crime, be denied due process of law and the right to trial by jury; and,
when convicted, may they be subject to cruel and unusual punishment?
Surely crime would plummet if these rights, too, were subject to a felon
exception for the sake of public safety, and if the police could
summarily execute felons they suspected of committing crimes. But if
those rights must be respected, why is the right to keep and bear arms a
different kind of right that admits of such an exception?


Majority
Rule?
The problem is that an exception has been introduced to the right whose
scope is defined by action of the majority (through legislative action
and subsequently through a majority of a panel of judges). That is fatal
to the right because it makes the right a captive of majority rule. The
concept of “public safety” has no inherent limiting principle that
establishes its outer boundaries. Those who have doubts need only
consider the ever-expanding list of federal and state disqualifications
for the ownership of arms. While the suggestion above regarding the
summary execution of convicted felons seems outrageous, it does so not on
grounds of public safety but only because of native concepts of justice
which require that the individual is presumed innocent and must be proven
guilty before being punishedconcepts that rest, at bottom, on the
inherent dignity of the individual. That we do not fully accord the same
treatment to convicted felons, taking each individually, indicates only
that we now _base_ our treatment of one another not on the principles of
justice established at common law, but on probabilistic assessments of
predilections for guilty behavior. Now we punish people in advance
because of what they might do, _base_d on our assumptions about (and
if the legislators are being especially careful, actual statistical
evidence indicating) the predilections of people like them.

So first we may note that if a right in the Bill of Rights is subject to
an exception whose scope is defined by action of the majority (the
legislative process), the right has been rendered subject to the will of
the majority. That is, it has ceased to exist and has become a creature
of legislative grace.
This issue bears further examination, however, because so many gun owners
readily concede that their right to keep and bear arms is “not absolute”
and is subject to “reasonable” regulation. This concession to moderation
or reasonableness is fatal to the right. Yes, there are people who should
not have guns. However, the point of the Second Amendment is precisely to
deny government the power to decide who those people are, just as the
point of the First Amendment is to deny government the power to decide
what you may read and hear. Rights are not reasonable, and are not to be
made reasonable, because government itself is not reason; it is force.

If a right is subject to an exception, any exception, then the
principle on which the exception is founded is, of necessity, superior to
the right itself; else there is no exception. If the felon exception, or
the prohibition of possession by those subject to restraining orders,
those dishonorably discharged from the armed services, or those who are
habitual users of marijuana (all current disqualifications under federal
law), is justifiable because it is necessary or desirable to protect the
public, then clearly the interest of “public safety” is superior
to any individual’s right to keep and bear arms. In sum, public safety
trumps a “right” to keep and bear arms; since it is superior to the
“right,” it absolutely defines the scope of the “right.”
But the concept of “public safety” has no inherent specific content that
would impose a stopping point or define a boundary beyond which it does
not extend. For example, if the legislature determined that an absolute
prohibition against the private ownership or possession of arms would or
could be expected to cause a reduction in the amount of crimes committed
with guns, such a law would still have the purpose of securing “public
health or safety,” and thus be within the scope of the state’s “police
power.” Yet obviously the “right” to keep and bear arms in this case
would completely disappear. Thus an exception to the “right” on grounds
of public safety logically destroys the “right.”
The list of federal and state disqualifications for the ownership or
possession of arms continues to expand, and Congress and the states have
embarked on a new goal of keeping all guns out of certain hallowed
locations (post offices and other government buildings, airports, and
school zones), also in the interest of safety. This offers a partial
proof that the concept of “public safety” has no logical stopping place.

Try to determine how far the government could go on grounds of public
safety. For example, why is there an interest in public safety only in
government buildings, airports, and school zones? Why not
hospitalsindeed, all public property and all businesses open to the
public? If you find a stopping place that leaves any private
person with the right to keep and bear arms, explain why the concept of
“public safety” indicates that you must stop there and not go any
further.

The Purpose of
Rights
Another way in which rights are often limited is to “interpret” them in
light of the purpose they are supposed to achieve. For example, those who
oppose the private ownership of arms sometimes assert that the purpose of
the Second Amendment is related to the maintenance of militias. Since
militias no longer exist and are a discredited and ineffectual means of
securing the common defense in the modern world, the Second Amendment has
been rendered obsolete and may therefore be ignored. Is this a legitimate
way of imposing a limitation on the scope of a right, of rendering it
less than absolute?
While the “interpretation” cited above is a misreading of both the words
and history of the Second Amendment, the effect of interpreting a right
by reference to its purpose is nonetheless revealed: it, too, leads to
the destruction of the right!
An example involving a right that the Supreme Court actually pretends to
recognize from time to time will perhaps be more convincing. The Supreme
Court has discovered that the purpose of the Fourth Amendment is to
protect people’s “reasonable expectations of privacy,” and so this has
become the Court’s standard for determining how far law enforcement can
go in conducting searches and seizures. Because people’s expectations of
privacy vary in different circumstances, the Court has concluded that our
Fourth Amendment rights similarly vary.
So, the law of the land now proclaims that your rights against search and
seizure are stronger in your home than in your car. They are better if
you own than if you rent and if you build a solid privacy fence around
your yard than if you put up a chain-_link_ fence. You have virtually no
rights if surveyed from above; since anyone can see what you’re doing
from up there, you cannot possibly have a reasonable expectation
of privacy. Your rights are stronger if you are a passenger in a car than
if you are the driver. Personal papers are more protected than business
records; you essentially have no rights in records of your phone calls or
banking transactions. A different Fourth Amendment rule for every
occasion!
The remarkable upshot of the Court’s interpretation of the Fourth
Amendment in light of its purpose is: never before has our government had
so much power to search and seize your person, personal information, and
property without probable cause and without a warrant. And yet never
before has the purpose of the Fourth Amendment been so perfectly and
fully achieved!
It is important to realize that the destruction of a right by
“interpreting” it in accordance with its purpose does not occur merely
because the interpreter picks the “wrong” purpose. It is a necessary
consequence of the very process. To “interpret” a right in light of its
purpose is to render the right a means to an end. This act immediately
devalues and dethrones the right. In a relationship between means and
end, the end, or goal, is always superior to the means. The means
is only a way to achieve the goal. Primacy is accorded to the
goal; if the means do not quite work, the means must be altered, if not
abandoned, to achieve the goal.
By creating a relationship of means and end between a right and its
purpose, we create a feedback loop in which the means is constantly
re-evaluated and adjusted in light of the degree to which it is achieving
the purpose. This process also has no logical stopping point and can also
lead to the complete re-definition of the original chosen means (that is,
the complete evisceration of the right). The Court’s Fourth Amendment
jurisprudence provides ample evidence and proof of this.
With the foregoing, then, I hope to have provided some basis for
advancing the following claim: A right, to be a right, must be absolute,
that is, subject to no exceptions, and held or respected as an end in
itself, not as a means to some other end. Otherwise, it does not stand
outside and above the law, but becomes subject to it, a mere creature of
legislative action, majority rule, and the peripatetic opinions of
judges. If the right is not absolute, you absolutely have no right.


1.   It is possible to argue that felons can be
excluded because they are not one of “the people” referred to in the
Second Amendment. This harkens back to the old sense of a felon as an
“outcast” of society, which in turn relates to the historical fact that,
in ancient times, persons who committed particularly egregious crimes
were actually cast out of the city or community that protected them. Thus
it would be consistent to argue that a person whose crime was so
egregious as to warrant death or status as an outcast lost his right to
arms with which to defend himself (that is, society has either decided he
should die or does not care if he lives). This is a far cry from what a
“felon” is now, however. Today a felony is simply any crime punishable by
more than one year in prison, and includes such crimes as possessing a
few too many ounces of marijuana.

2.   What follows is drawn from Clayton E.
Cramer, For the Defense of Themselves and the State: The Original
Intent and Judicial Interpretation of the Right to Keep and Bear Arms
(New York: Praeger, 1994), pp. 240-41.


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