That’s good, because there’s no such thing as a “right to drive.”
Is there such a thing as a right to an abortion? If so, is it also explicitly stated that it cannot be infringed upon or restricted? I don’t imagine it does, or the verbiage would have become pretty meme worthy these days.
According to the SCOTUS in RvW, yes.
The issue of restrictions on abortion (the so-called “undue burden” standard) was determined in Planned Parenthood vs Casey.
But again, does explicitness even matter? You are positing a class or tier system (based on ‘verbiage’) by which it is determined that some rights are more ‘right-y’ than others. I am unaware of any support for this view. The point being that, to the extent your conjecture is incorrect, explicitness plays no role in determining the primacy of a given right.
So you’d say Americans have a fundamental right to an abortion, up to the day of delivery?
Not sure. I’m not a judge or lawyer. Seems like it does to me, but that’s obviously a layman’s view.
The verbiage of the Constitution makes it far more difficult to change the BoR than it does the rest of the Constitution, does it not?
Spoken like a true Christian.
@Sloth
@pat
@pfury
@EyeDentist
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There are some differences in rights. Some may be considered “intrinsic/natural” and some “contingent or derived”.
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Also, what is ultimately important is weighing rights is whether the right of one person, or the state outweighs the rights of others in the equation.
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Lastly, there are rights that can hypothetically be restricted at the local or state level but not at the federal level.
In the first case, someone could, for example argue that the constitution implies that the right to bear arms is contingent, not intrinsic. I’m not talking about collective or personal as I believe it was probably granted as a personal right, but the constitution says “a well regulated militia, being necessary…” This implies that if that condition or contingency no longer applied, (that a well regulated militia is no longer necessary to the free state) then the right to bear arms could be infringed." And I’m not saying that it is no longer necessary, just that the constitution itself contradicts the assertion that the right to bear arms is intrinsic.
Also granted there is a fairly strong case that some right to bear arms was deemed to be a more intrinsic right. Amendment 2 speaks of the “right to bear arms” but only says that THAT RIGHT should not be infringed, not that it should not be abolished.
The right to run for congress, or president, or to vote is also a contingent right based on an age test (25) and the right to vote had tests, some of which would be considered to violate rights today such as religion, race and sex based requirements, or property ownership. These were granted by legislation not judicial action. Also the “right” to proportional representation in the house of representatives, or the right that the supreme court found for the people to chose their senators by popular vote rather than have the state legislature select them. So some rights are contingent on the law. The way the law is written today, the courts have ruled for popular vote of senators but if the laws were written differently that could change.
Regarding intrinsic rights and contingent rights, one could then argue that while the right to privacy, or reproductive rights are not explicit (they have been ruled to be under the penumbra of the constitution which does not really lighten them since the constitution says itself in the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ This is why the bill of rights itself was controversial because all of the rights listed in the bill of rights were assumed to exist prior to the bill of rights. THERE ARE INTRINSIC AND CONDITIONAL RIGHTS.
Second, when one person’s right to do x infringes on another person’s right to do y, the rights are weighed. For example, if the right to bear arms infringed upon the other freedoms of people by a great enough degree, it could be infringed upon. Likewise, someone’s right to privacy (ruled to be among the unenumerated rights) would not supercede someone’s right to life (you can’t get away with murder just because you do it in private). So point is, rights are to be balanced. I believe that statistically speaking, the average American will lose 4 months of their life to firearms. Almost the same amount is lost by the average America to automobile accidents. The right to bear arms and to drive a car then should be weighed against the loss of freedom that they result in. (Personally I think that in balance, they both increase freedom). Obviously if the Supreme Court ruled that unborn are human beings then the right of the human to life would outweigh the right to privacy even without having to overturn the premise that the right to privacy IS inherent and under the penumbra or unenumerated rights. ONE PERSONS RIGHTS MUST BE WEIGHED AGAINST ANOTHER PERSON’S RIGHTS.
Third, it could be argued that (at least originally) there were non-intrinsic rights that could not be restricted by the federal government but that the right to restrict them was reserved for the states. In fact, the bill of rights was only applied to state governments in a process called “incorporation” where courts ruled that if the federal government couldn’t restrict a right, the states couldn’t either. This largely came from the civil rights issues, but there is a school of thought that the right to bear arms and even freedom of speech COULD have originally been limited by state governments, as the bill of rights only placed restrictions of the federal government. This has pretty much gone away with “incorporation”
All in all, it is pretty apparent to me that the legal concept of rights has been largely manufactured over years of judicial mental masturbation. I am not saying that people don’t have intrinsic rights. I think they do, but the way the courts have attempted to categorize individual, “natural” or intrinsic rights is basically a clumsy construction which demonstrates how much of this we have made up as we’ve gone along.
Regarding abortion and firearms, it is clear from the 9th amendment that the lack of a right from being listed in the bill of rights does nothing to diminish it, so if the right to privacy exists (as is precedent), and I think it is also reasonable that there is some right to privacy under the unenumerated rights, then it would be on-par with the right to bear arms, or even stand higher because the right to bear arms is implied in the constitution to be contingent on the current needs of the free state (again it’s arguably also among the unenumerated rights). The fundamental issue then is not their place in the constitution, but how those rights should be weighed against the rights of others.
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I think, ironically that the listing of the right to bear arms in the BOR might make it more at risk, because it implies that the writer’s considered it to be contingent on the needs of the free state. Prior to the BOR, it was probably generally assumed that there was an intrinisic right to bear arms since it was well established in English common law.
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In a literal legal sense, I may be inclined to agree. In a practical sense, I couldn’t agree less. People tend to give the BoR amendments extra credence on top of it just being fundamentally harder to change the BoR over the rest of the Constitution
Unalienable rights: life, liberty…
If a right is unalienable then the bill of rights does not grant it, it simply affirms it.
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“People”, yes, but not activist judges.
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I admittedly don’t follow much news, but is there recent activity of judges trying to push the BoR amendments to a lower status? Or just happening with 2A?
A point missed by a LOT of people when it comes to the Constitution and the BOR…
2A has a built in condition: the right shall not be infringed, because of the condition that the free state requires a well regulated militia.
A compromise has been suggested by some that this may mean that STATES can regulate gun ownership because it is part of militia regulation, but that the federal government shouldn’t.
Personally, I might be happy in a world where states got to regulate gun ownership to whatever extend they wanted to. I don’t own a firearm, but I would much prefer to live in a state where criminals don’t KNOW that law abiding citizens don’t have a firearm. Within the U.S., states with higher firearm ownership tend to have lower rates of violent crime. Same on an international level. There are super restrictive, low firearm ownership nations in South America and Africa where you have 5-10% chance of dying from murder. Europe and Canada actually have a pretty high firearm ownership rate if you compare it to everywhere but the U.S.
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No, because the SCOTUS has found restrictions to be constitutional.
Interesting question. I’m not sure.
Here’s a question for everyone to discuss. What would the country be like if Abortion and or Firearm ownership were to be controlled 100% at the state level? What are the implications?
Under the assumption that these restrictions aren’t mirrored off the restrictions place on the BoR, I dare say SCOTUS thinks right have classes as well then.
Probably an increasingly tribal country in which funding dollars are targeted even more heavily at the federal level depending on which party is currently in control
OK, and I’m not saying otherwise, but give me some specifics. Do we get people migrating to states where they like the laws better? Do we get high crime, gun control states sue RTBA states because criminals bring guns from “there” to “here”? Do we get a huge population surge to “liberal” states if they can create more avenues for immigration that raises their population or representation?
Not sure if this is a justifiable conclusion. After all, the right to free speech seems very cut and dried in the BoR, and yet the SCOTUS has found all sorts of limitations on it. So apparently there are no classes–either that, or free speech and abortion are in the same class, a conclusion which would fly in the face of your ‘verbiage’ hypothesis.
Look at the states who are more likely to have looser firearms laws and stricter abortion laws. What do the standard of living, quality of education and poverty levels look like? Now picture them getting even worse.
You might want to see a list of the most violent states in America. They aren’t strict gun control states.