Monday, June 13, 2005

Secondary rights & resistance

The always-worth-reading Bill Wallo o'er at Wallo World cites Daniel at Duck of Minerva:
Daniel also points out that saying the “right” to bear arms prevents genocide is no different than saying due process, equal protection, or other civil liberties prevent genocide: “If we could guarantee those rights everywhere in the world, there wouldn’t be any genocide. If we can’t guarantee them - which we can’t - then we also can’t guarantee a right to bear arms either.”
This is a pretty smart comment, but I'm not sure that it's solid as it appears at first glance. This is an astute observation: the right to guns is, on reflection, something of a secondary right. Like due process and the separation of powers, the right to guns is a safeguard of our primary rights (speech, religion, equality, etal.).

Briefly, I take it as a first principle that secondary rights, such as the right to bear arms and due process, are logically subsequent to primary rights. Say we lived in a dictatorship in which there was an enlightened despot that guaranteed our rights to speech, to fair trials, etal. (and that s/he would be followed by an endless series of enlightened despots). If that were the case, I'd be fine. Other rights (due process, the right to vote) would be superfluous. In other words, secondary rights are only important because we can't be sure primary rights will be guaranteed.

One key difference between, say, due process and the right to bear arms, though, is that the former is susceptible to suspension by executive privilege. The latter could be suspended as well, though I would expect that it would be more difficult to take the guns of an armed citizenry than it would be to suspend procedural rights. Rather, it may or may not be more difficult, but I'd think that an attempt to round up the guns of yahoos would give government more pause. Due process is a concept, and pretty easy to eliminate, as President Bush has demonstrated. A gun, however, is a real-world entity, and can only be seized by physical force. Accordingly, I'd expect it to be more resistant to erasure.