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Your rights are not written in stone | Mac Stipanovich
Abortion rights, gun rights and other rights are actually qualified and change over time.
 
In this March 2018 photo, crowds of people participate in the March for Our Lives rally in support of gun control in San Francisco. (Associated Press)
In this March 2018 photo, crowds of people participate in the March for Our Lives rally in support of gun control in San Francisco. (Associated Press) [ JOSH EDELSON | AP ]
Published Jan. 3, 2020|Updated Jan. 3, 2020

Rights are all the rage. Abortion rights, gun rights, gay rights, voting rights. There are a slew of them in the news, and to hear their advocates go on about them you would think they were inscribed on additional stone tablets delivered to Moses on a second, less celebrated hike up Mount Sinai. It was in this same spirit that Thomas Jefferson wrote in the preamble to the Declaration of Independence that all men are endowed by their creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness.

But not really. If a man commits murder, his life may be forfeit. If he robs a bank, his liberty is lost. And if he seeks connubial bliss with multiple wives, the law forbids his happiness. He also has the right to speak and worship as he pleases without government hindrance, provided he does not foment terrorist violence or deny his child life-saving medical care because of some religious scruple.

Mac Stipanovich was chief of staff to former Gov. Bob Martinez and a long-time Republican strategist and lobbyist. He has since registered as no party affiliation and as a Democrat, and his voter registration now varies with the election cycle.
Mac Stipanovich was chief of staff to former Gov. Bob Martinez and a long-time Republican strategist and lobbyist. He has since registered as no party affiliation and as a Democrat, and his voter registration now varies with the election cycle. [ Mac Stipanovich ]

The fact is, rights are prescriptive, not God-given or natural. They are the accretions of customs and laws at particular times in particular places. Not one is written in stone. All are qualified and change over time.

Consider the much discussed Second Amendment to the U.S. Constitution, which provides in part that “the right of the people to keep and bear arms shall not be infringed.” That is what it says. This is what it means: “generally speaking, the right of the people to keep and bear arms shall not be infringed.”

The right to keep and bear arms has been infringed in ways large and small from the get-go. In 1824, James Madison and Jefferson, both original Originalists, joined in a unanimous vote of the University of Virginia Board of Visitors to ban firearms on campus, ranking campus carry right up there in importance with chewing tobacco and stabling horses on campus, which were also banned in the same vote. The immediate cause of the gunfight at the OK Corral in 1881 was the violation of an ordinance prohibiting the carrying of firearms within the city limits of Tombstone. Automatic weapons have been heavily regulated by the federal government since 1934. Today there are significant legal restrictions on so-called assault rifles in Connecticut, Maryland and New York.

Go to Publix with your shotgun. You will be arrested for open carry before you can make it from your car to the grocery carts.

Concealed carry? You need permission from state government, which cannot be obtained if you are under 21, have substance abuse or domestic violence issues, or fail to complete an approved firearms safety course, among other requirements. Even with a permit you cannot carry in a bar, on school grounds, in government meetings, in a courthouse, at athletic events, or in other prohibited venues.

And what if two-thirds of each house of Congress decided to repeal the Second Amendment and three-fourths of state legislatures agreed that doing so was a good idea? Poof! No more right to keep and bear arms at all.

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Of course, obdurate Second Amendment absolutists would argue that regardless of whether it is recognized in law, keeping and bearing arms is a natural right, an extension of man’s most basic instinct: self-preservation, the corollary of which is the God given right to life to which Jefferson referred and, more specifically, the right of self-defense implied in the Second Amendment.

This kind of reasoning has a certain philosophical, how-many-angels-can-dance-on-the-head-of-a-pin appeal, but its real world utility is limited. The highest and best use of rights theories is as intellectual icing on an argument based on sound public policy and existing law, not as its principal support. For example, there are good reasons to oppose assault rifle bans, but insisting you have the absolute right to own an AR-15 because God says so is not one of them.

Mac Stipanovich was chief of staff to former Gov. Bob Martinez and a long-time Republican strategist and lobbyist. He has since registered as no party affiliation and as a Democrat, and his voter registration now varies with the election cycle.