What rights are and are not
The concept of rights ought to be one that Americans especially understand, given the fact that many of our founders comprehended the world in terms of Enlightenment philosophy and wrote such thinking into our basic law. But I am told regularly that owning an AR-15 is not a right, that having an abortion is not a right, that healthcare in general is not, either, while the constitutional amendments that ended legal slavery in this country violated the rights of slave holders or that not allowing prayers to be led by public officials goes against the rights of believers, be they government employees or not.
Note that I have the opinions of many different groups of people in mind here, as my samples are all over the political map and the various players in that cartographic space tend to divide up rights by their affiliations, rather than holding a coherent view of what rights may be. Others will point to a particular document—the U.S. Bill of Rights, for example, or the U.N. Universal Declaration of Human Rights, among many others—as being comprehensive lists that granted the enumerated rights and only those at the time the document came into force, no matter what the texts may say about the subject.
Time, then, for clarity. My view here is, of course, my own, but I should like to think that it is to be found within the philosophical school of my nation’s founding—especially the humanist view that each person, by virtue of existing, possesses rights inherently.
At heart, if I am minding my own business, if I am not making you participate in my activities, it is up to you to convince me that you ought to have a say. My business and your business are bimodal concepts, rather than sharply separated categories, since if I were to practice drumming within your hearing, there would be a good measure of muddling in whose concern that is. If I believe a particular ideology, that may affect how I interact with you. And so on. But the principle should be clear, especially if my activities do not physically impinge on yours—your respect for your gods or lack thereof and my respect for my gods or lack thereof can exist together in one nation if we both agree to live and let live, but pouring poison into water upstream of someone else’s land is intolerable.
The application of this principle will illustrate what I have in mind. Take the case of Kim Davis, the former county clerk who refused to issue marriage licenses to same-sex couples on grounds that doing so would violate her religious beliefs.
I have no wish to debate the merits or sincerity of her beliefs here. She declared that a particular kind of relationship was wrong according to her religion, and I will accept that as her view. I have no wish to force her to marry someone of her sex, nor do I claim any authority to require her church to change its stance. But Kim Davis, private citizen, and Kim Davis, Clerk of Rowan County, Kentucky, are for the purpose of rights two distinct persons. She held an office of public trust that obliged her, among other duties, to issue marriage licenses to qualifying couples. The issuance of such documents is one of the core functions of that office, and unlike sheriffs who say that pursuing marijuana growers or semiautomatic rifle owners is something that they cannot get around to, given their discretion in enforcement and the time constraints on their departments, a county clerk lacks the authority of selectivity here. And said office is not one that Davis created. It is a position that the people of Kentucky assign at their will. She has the right to her beliefs, but not to hold the post of county clerk. If those religious beliefs did not allow her to complete her duties, she ought to have resigned.
Another example is that of slavery, one that, as I said above, I see cited frequently as a case in which the rights of slaveholders were violated by the Thirteenth Amendment, the implication being that something of that kind can be done to gun rights. But how could the possession of slaves ever be seen as a right, at least as I have defined the concept? Slavery is a penetration of the boundaries of another, the negation of the slave’s ability to have personal business.
But what about guns? If I go about firing off rounds at random, I am implicitly and all too often actively violating the rights of others—a bullet in flight is a good working definition for something that gets up in the business of anyone down range. Barring extreme heat or mechanical failure, however, a gun in a holster or cabinet is an inert object. It has potential, yes, but so does every tool ever devised. And potential, like rights, has a bimodal quality. Some potentials—nuclear weapons or vials of smallpox, among many examples—by their natures spill over into the domains of others. But most are within each of our individual areas of concern. It is the action that determines their social character, not their possibility.
It is thus good to ask anyone who proposes a new law or system of laws affecting individual behavior what said person understands by the term, rights. And it is worth pointing out to the audience of that discussion that in many cases, the innovator has no clear formulation of the concept.