Posted by: N.S. Palmer | January 21, 2011

The Metaphysics of Constitutional Rights

By N.S. Palmer

Two basic forces shape the universe: Law and Love, or if you prefer, Rules and Results.

Those forces also generate the two basic viewpoints about human and Constitutional rights. Both are currently on display in a dispute over gun control laws.

The Second Amendment to the U.S. Constitution, part of the “Bill of Rights,” states:

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Opponents of gun control laws latch onto the part that says “the right of the people to keep and bear arms shall not be infringed.” Supporters of gun control laws argue that “the people” refers to Americans collectively rather than as individuals, so the right to keep and bear arms applies only to people in government-organized military organizations.

Frankly, I think that opponents of gun control laws have the better Constitutional argument. The text says what it says. And via the Fourteenth Amendment and later court decisions, the Constitution applies to states as well as to the federal government. Therefore, one can make a good case for an individual right to own guns.

But that’s not the only question involved. The larger question is whether rights are an end in themselves, or are justified because they produce good results.

Consider Timothy Egan’s recent column about the January 2011 shootings in Tucson. After avowing that he grew up around gun owners and supports private gun ownership, he starts talking about results. He cites statistics showing that more gun ownership leads to more gun deaths, more often of the innocent than the guilty.

Conservatives and libertarians argue that gun ownership makes everyone safer, but they really see that point as irrelevant. Their main response to Egan’s argument is to say that results don’t matter. Only rules matter. And according to what they say are the rules of the U.S. Constitution and “Natural Law,” the government has no business restricting or discouraging gun ownership of any kind. You can probably even find a conservative or two who thinks it’s in the Ten Commandments.

As usual, the dispute between rules and results leads to further questions:

  • If rights are an end in themselves, how do we know that? How do we know what rights we have? And if respecting rights in a particular case would lead to terrible consequences, should we still respect them in that case?
  • If rights are justified because they produce good results, then results for whom? “The greatest good for the greatest number?” Or just for the Wall Street sharks and corporate billionaires who bankroll libertarian think tanks and publications? How much good does a right have to produce, and with what degree of reliability, in order to qualify as a right?

Because the choice between emphasizing rules and results is so fundamental, there’s no way to prove that one choice is right and the other is wrong. Different people make the choice based on their personal history, psychology, and the dominant viewpoint of their society. And the choice itself is a false dilemma: you need both law and love, rules and results. Having only one of them would be like trying to do mathematics with only odd numbers.

It’s peculiar that many evangelical Christians, as conservatives, think that rules are more important than results, because Jesus taught that rules should be guided by love.

Copyright 2011 by N.S. Palmer. May be reproduced as long as byline, copyright notice, and URL ( are included.


  1. Admittedly, it doesn’t much affect me directly, but I don’t see anything in the Second Amendment that suggests to me anything about an individual’s right to own a gun. To me, that’s spin applied over the years to paint over what’s plainly stated in the amendment.

    First of all, it’s explicitly predicated on the existence and maintenance of “a well-regulated militia”. At the time the US was founded, the expectation was that the US would have no standing army; Thomas Jefferson warned against the concept which he saw as the basis for the European despotisms most Americans had fled. Secondly, the militia is mooted as “necessary for the security of a free state”. Without the flowery language and circumlocution, this reads: the people have the right to bear arms in defense of the United States under the regulation of (and thus contingent on membership in) the militia. How we got from that to ‘everyone should be packing’ escapes me.

    Probably not surprisingly, I don’t believe gun ownership should be a right. Even owning and driving a car isn’t a right, and a car isn’t a device specifically designed to kill… it’s designed to get people from point A to point B, but due to its size and velocity has the potential to kill: and that’s enough to get its ownership seen as a privilege, regulated up the yin-yang. Surely objects conceived of as instruments of deadly force, and nothing else, should be all the more restricted.

    I know it’s a complicated debate and that a lot of factors come into play. But I can point out a fact that I find extremely telling. Currently, the City of Detroit (proper) has a population of 911,000. In 2010, it experienced an unofficial 308 murders, which I’m told is down 15% from 2009. Across the Detroit River is the City of Windsor. With a population of 215,000, it’s about a quarter the size of Detroit. Typically, it has an average of 5 homicides per year. Last year, it actually had none. These are two cities, in the same order of magnitude, separated by only about a mile of water. And a constitution. I have to think at least some of those 308 deaths can be laid at the door of the ambiguous wiggle-room in the Second Amendment. I can’t see that as a positive thing. It seems to me that there are some “rights” that are not compatible with civil society.

    Ultimately I think it’s the results that matter: getting the best results for the society is supposed to be the raison d’etre of constitutionalization in the first place. I question the whole notion of formulating rules if they aren’t thought through before they’re formalized, or if they’re regarded as immutable even when they’ve been shown to have unanticipated dire consequences.

    • Hi, LP —

      I tend to agree with you, on all the points you made. But I know many people, principally libertarians, who think that their specific list of rights is absolute and must be respected no matter what, let the heavens fall.

      Conservatives talk a good game about respecting rights, but in their case it seems more rhetorical than substantive, given their predilection to want to bomb anyone who gets in their way. That doesn’t apply to thoughtful conservatives such as Russell Kirk (who I knew), but most thoughtful conservatives have something else in common with Russell Kirk, i.e., he’s dead.

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