Saturday, February 7, 2015


In the Declaration of Independence a nascent nation asserted as unalienable, universal, rights the rights to life (safety and security), liberty (the absence of arbitrary, unwarranted public intervention in private life) and the pursuit of happiness. These rights were not verbatim repeated in the Constitution, but the Constitution and, particularly, the first ten amendments to the Constitution containing the so called ‘Bill of Rights’, made an attempt to codify these unalienable rights.

Among the most coveted rights bestowed by the Constitution of the United States are the right to free speech and the right to bear arms. It is no coincidence that these two rights are articulated in the first and the second amendment to the Constitution.

As much as the Declaration of Independence declared the rights to life, liberty and the pursuit of happiness ‘unalienable’ the question needs to be asked to what extent they would also be ‘unbridled’. Our Founding Fathers and most of the philosophers like Thomas Hobbes, John Locke and Thomas Payne who inspired them, had a healthy fear for the ‘rule of the mob’, which is why in the early stages of our Republic only a small percentage of the population was conferred with voting rights. The Constitution left the voting rights issue to be determined by the States, but in practice suffrage was initially limited only to white male property owners. The establishment at the time wanted to avoid by all means a ‘free for all’, which meant that they reserved for themselves the right to govern and set the rules. This meant that there were no unbridled freedoms except maybe for the happy few who were in charge. As suffrage slowly expanded, limitations on the freedoms of the ruling class increased apace.

In our modern society we are constantly confronted with the incompatibility of our individual freedoms (liberty) with the rights to life, liberty and the pursuit of happiness of our fellow citizens. The Constitution has left the resolution of this inherent conflict in the hands of the legislatures of the States and the Union under supervision by the Supreme Court.

The rights to free speech and the right to bear arms are poster children for this dilemma. Where does the right of the individual trespass on the right of one or more other individuals, groups or society at large to the point that it has to be bridled in by the law? This debate rages right now in Europe in the context of the reaction to the Charlie Hebdo murders. Does the right to free speech protect the freedom to disrespect the religious sensibilities of others? The difficulty, as usual is, where to draw the line. It is one thing to attack by free speech the perversion of a religion like we see happening in the self-proclaimed caliphate of the Islamic State of Iraq and the Levant (ISIL) and a whole other thing to ridicule the deity of the Muslim (or any other) religion. The civilized, sophisticated, interpretation of the right to free speech in a case like this should take into account the purpose of the expression of free speech. If it is meant to insult or incite it is not a legitimate use of free speech. It should not be sanctioned just like we do not sanction shouting ‘fire’ in a packed theater. That is not to say that shooting (at) the perpetrators is then justified. No self-respecting nation can allow its citizens to take the law into their own hands. If, on the other hand the expression of free speech is to expose criminality disguised as a denatured, perverse, claim of faith it should not only be condoned but protected by the law.

Similarly with respect to the right to bear arms. The second amendment to the Constitution protects against infringement on the right of the people to keep and bear arms. According to the second amendment, this right is asserted as “a well regulated militia is considered necessary to the security of a free State”. Former Supreme Court Judge John Paul Stevens, in his important book ‘Six Amendments, How and Why we should change the Constitution’ argues that the intent of the draftsmen of the second amendment was to safeguard the people’s right to bear arms when serving in the militia. If that is correct, how far have we strayed from the original intent!

If I have, indeed, an unalienable right to keep an assortment of guns at my house, including an AK 47, isn’t that at the same time an infringement on my wife’s, my children’s, my guests’ and my neighbors’ right to life, liberty and happiness? Are my rights weightier than the rights of others living in my surroundings? The courts have been very reluctant to allow reasonable limitations on the second amendment right. This reality, combined with a fiercely combative attitude from a large part of the U.S. population organized in the National Rifle Association, frustrates just about any attempt to keep guns out of the hands of those who cannot be trusted with them and keep military or gangster type weapons out of the hands of everyone, except trained professionals who are sworn to protect us.

Has the right to liberty for a vocal and well organized minority trumped the right to life and happiness for everyone else? There is no doubt that the Constitution allows for reasonable constraints to be placed on individual freedoms for the purpose of the safety, security and well-being of the nation and the population at large, but a Congress that is incapable of taking on the big challenges the nation is facing is even less equipped to doing the delicate work of weighing the value of individual freedoms against the value of the common good.