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Dave Kopel: Bill of Rights Safeguards “Pre-Existing Human Rights”

The Bill of Rights does not grant government permissions to people; rather, it recognizes and protects people’s rights that are antecedent to government. Legal scholar Dave Kopel explains this point in a recent article for The Volokh Conspiracy, noting that the first two Amendments are concerned primarily with recognizing individual rights, whereas other Amendments are “mainly controls on particular government processes” or “interpretive rules.”

Because both the First and Second Amendments recognize and protect individual rights—albeit in different spheres—the logic that applies to one often applies to the other, Kopel explains. So it makes sense that modern “courts have frequently looked to the First Amendment for guidance on Second Amendment questions.”

Among the gems Kopel offers is the following:

Not All Original Practices Are Per Se Constitutional Today. Laws against blasphemy or seditious libel are clear examples in the First Amendment context. They warn us to not accept uncritically every possible municipal gun law from the Founding Era.

What this means is that the Bill of Rights recognizes and protects individual rights—even if the Founders themselves misunderstood the nature of rights in a given area or passed laws that violated rights in some way.

Unfortunately, in a related paper, Kopel offers a poor explanation for why the Bill of Rights protects individual rights even in ways the Founders did not recognize: “As Justice Harlan observed in his oft-quoted dissent in Poe v. Ullman, constitutional rights are based in part on tradition, and ‘tradition is a living thing.’” The problem with such analysis is that traditions very often involve the violation of individual rights, and many newer traditions are even worse than older ones in this regard.

If tradition-based interpretations of the Bill of Rights cannot consistently protect individual rights, what can? In a 2009 paper, Tara Smith explains that constitutional provisions have objective meaning and are properly interpreted as having such. Rights are objective (fact-based) principles, so the Bill of Rights is properly understood to protect man’s objective rights. (For details on the objective nature of rights, see “Ayn Rand’s Theory of Rights.”) Only a legal theory based on objective meaning can explain, for example, why laws forbidding blasphemy violated rights two centuries ago and why laws restricting political speech violate rights today.

Whatever the contradictions in the Founders’ laws and practices, the Founders created America with the fundamental aim of protecting individual rights. Lovers of liberty should further that vital aim by understanding and upholding the objective nature of rights.


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