Author Topic: Is RKBA a CIVIL RIGHT?  (Read 5345 times)

Werewolf

  • friend
  • Senior Member
  • ***
  • Posts: 2,126
  • Lead, Follow or Get the HELL out of the WAY!
Is RKBA a CIVIL RIGHT?
« on: August 02, 2008, 10:50:05 AM »
There's a heated discussion going on at THR concerning whether or not the right to keep and bear arms is a civil right.

After wading thru it I don't have a clue one way or the other. The most telling thing I read - assuming the facts as stated are correct - is that if the 2nd and self defense is a civil right that property rights no longer trumps RKBA and no guns signs are pretty much meaningless. The argument goes like this. Heller made RKBA a civil right (I'm not sure it did). The 1960's civil rights act made civil rights trump property rights (did it?). If true then the argument that their house their rules re: carrying at a business goes out the window.

I am not a lawyer. Got no clue about this?

Is RKBA a civil right? Does the 2nd have the same standing re civil rights as all the others in the BOR's?

If so how can businesses prevent employees from legally carrying? Is it simply because that hasn't been tested in the courts in light of Heller? Or that no lawyer has made the connection between the 2nd and the 1960's civil rights act.

What say y'all?
Life is short, Break the rules, Forgive quickly, Kiss slowly, Love
truly, Laugh uncontrollably, And never regret anything that made you smile.

Fight Me Online

MicroBalrog

  • friend
  • Senior Member
  • ***
  • Posts: 14,505
Re: Is RKBA a CIVIL RIGHT?
« Reply #1 on: August 02, 2008, 11:15:57 AM »
The thinking that 'civil rights' and 'property rights' are separable is part of the problem.
Destroy The Enemy in Hand-to-Hand Combat.

"...tradition and custom becomes intertwined and are a strong coercion which directs the society upon fixed lines, and strangles liberty. " ~ William Graham Sumner

Monkeyleg

  • friend
  • Senior Member
  • ***
  • Posts: 14,589
  • Tattaglia is a pimp.
    • http://www.gunshopfinder.com
Re: Is RKBA a CIVIL RIGHT?
« Reply #2 on: August 02, 2008, 01:03:30 PM »
I'm fairly certain that I can deny anyone access to my home or business for any reason I want.

I remember when John Birch (of THR) put up a sign in his gun store outside Chicago that said he could not sell to black people because of the NAACP's lawsuits.

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #3 on: August 02, 2008, 01:30:56 PM »
RKBA is a natural right.  A human right. 

Civil rights come with citizenship, and include the right to vote, to run for office, etc.

Although it's very common to speak of one right "trumping" another, that is actually a very wrong-headed way to go about things.  Rights do not "trump" one another.  When you enter private property that has a no-gun sign, you don't lose your right to carry.  Your rights are not even being infringed.  Rather, you are choosing not to exercise you right at that time.  Even if you carry concealed, against the rules, you would not be exercising the RKBA, because there is no "right to carry (or do much else) on someone else's private property."    Your RKBA is intact, and you can exercise it again when you leave. 
"Doggies are angel babies!" -- my wife

De Selby

  • friend
  • Senior Member
  • ***
  • Posts: 6,836
Re: Is RKBA a CIVIL RIGHT?
« Reply #4 on: August 02, 2008, 01:43:56 PM »
"natural rights" and "human rights" are the province of philosophy and theoretical systems.  They become relevant in terms of enforceability only in the context of the much despised big dreamy international and humanitarian legal systems.

Legally, in America, the only relevant question is whether you've got something you can take to court and have enforced.  You can have all the natural rights you want or argue for any of them, but such arguments will not get a judge to issue you a piece of paper with the authority of state necessary to enforce said rights.

In America, having a civil right means you've got grounds to go and have the authority of the state protect you on the grounds of the particular right asserted.  So free speech, the right to bear arms, and the right to freedom of religion are civil rights-they have concrete (somewhat, anyway) definitions that you can use to go to court, and a court will enforce those rights for you.

The 14th amendment and the bill of rights do not apply to private persons, and never have.  Only a few exceptions exist to that rule. 

Congress has prohibited private actors from engaging in racial and gender discrimination on the basis of commerce, for the most part.  The theory is that racially restrictive policies are extremely bad for business around the country, since those policies exclude a large number of people from engaging in this or that economic activity.  So via the right to regulate interstate commerce....congress gets to set rules for private businesses. 

And mostly, the way congress does it is by providing a statute that says roughly "if you violate a person's right to be free from racial discrimination in interstate commerce, he can sue you and be paid damages."  It's a business and commercial damages issue, not a bill of rights issue, when dealing with private parties.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #5 on: August 02, 2008, 03:12:44 PM »
I'm not sure who's more confused about this; Werewolf or shootinstudent.

That is not to say that shootinstudent is not faithfully reciting whatever it is they're teaching in school these days.  I suppose he may be.

The distinction I have drawn between natural and civil rights seems to make much more sense, and to have implications that correspond to the real world.  Additionally, if I understand correctly, they correspond with the thinking of the men who first made the notion of rights something the world actually cared about.  But the shootinstudent distinction merely divides rights into two classes - rights that folks will agree to recognize, and those they won't. 
"Doggies are angel babies!" -- my wife

De Selby

  • friend
  • Senior Member
  • ***
  • Posts: 6,836
Re: Is RKBA a CIVIL RIGHT?
« Reply #6 on: August 02, 2008, 05:46:44 PM »
Quote
The distinction I have drawn between natural and civil rights seems to make much more sense, and to have implications that correspond to the real world.  Additionally, if I understand correctly, they correspond with the thinking of the men who first made the notion of rights something the world actually cared about.  But the shootinstudent distinction merely divides rights into two classes - rights that folks will agree to recognize, and those they won't. 

No-rights that the agents of the state will lift up their arms to enforce, and rights that the agents of the state won't.

The problem with your analysis is that it basically just renames the conflict Werewolf identified, and declares "there is no right to bear arms in someone else's house."  You need to consider the obvious question: Why not? If you try to explain why, you'll be required to discuss the property rights of others in order to explain why something can be a "human right," yet not be infringed just because someone else arbitrarily decides you can't excercise it when you step onto the boundaries of his land.

Unless you have some concept of one right "trumping" another, you could just as easily say "the right to hold and control property doesn't extend to depriving others of the right to self defense."  Or carve out any other number of discrete rules to describe the "natural" or civil rights of individuals.  In the end, all you will have done is created exactly the same hierarchy as someone who says "the right to control private property trumps the rights of others to keep arms", and left the obvious, that you have a hierarchy, unstated.
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

Headless Thompson Gunner

  • friend
  • Senior Member
  • ***
  • Posts: 8,517
Re: Is RKBA a CIVIL RIGHT?
« Reply #7 on: August 02, 2008, 05:49:07 PM »
The thinking that 'civil rights' and 'property rights' are separable is part of the problem.
Agreed. 

Nitrogen

  • friends
  • Senior Member
  • ***
  • Posts: 1,755
  • Who could it be?
    • @c0t0d0s2 / Twitter.
Re: Is RKBA a CIVIL RIGHT?
« Reply #8 on: August 02, 2008, 06:21:53 PM »
Easy answer: Yes.

The definition of Civil right:
Quote from: Princeton Wordnet
(n) civil right - right or rights belonging to a person by reason of citizenship including especially the fundamental freedoms and privileges guaranteed by the 13th and 14th amendments and subsequent acts of Congress including the right to legal and social and economic equality

The first clause pretty much nails it.  "right or rights belonging to a person by reason of citizenship"

Just because it's a civil right doesn't mean it is not a natural right either.
יזכר לא עד פעם
Remember. Never Again.
What does it mean to be an American?  Have you forgotten? | http://youtu.be/0w03tJ3IkrM

Werewolf

  • friend
  • Senior Member
  • ***
  • Posts: 2,126
  • Lead, Follow or Get the HELL out of the WAY!
Re: Is RKBA a CIVIL RIGHT?
« Reply #9 on: August 02, 2008, 06:29:03 PM »
The thinking that 'civil rights' and 'property rights' are separable is part of the problem.
Doesn't that depend on how one defines civil rights?

If a civil right is synonymous with natural right wouldn't civil rights then be superior to a right which is a mere construct of culture and not nature - in other words wouldn't a natural right trump a man made right? If not why not?

Why should the right to self defense which is really the right to life not trump someone's commercial property rights (note: commercial not residential/private). The commercial distinction is important because in general in the USA commercial enterprises are licensed, regulated and mostly controlled by a govenrment to a much greater extent than private property not used for commercial purposes.

Fistful makes the argument that one can choose not to participate in discrimination against RKBA by simply spending one's money at another business. How is this any different from a minority simply choosing to spend their money in a business with no <insert minority of your choosing here> allowed? Why can't the minority simply go down the street to a business that doesn't discriminate? If the RKBA is indeed a civil right and further more a natural right must it not have the same level of protection then against discrimination as minorities have against discrimination by commercial enterprises?

Of course if civil rights are simply a man made construct and not something one retains simply by being born then the whole argument falls apart and one civil right does not necessarily trump another.

This is what I don't understand and need help with. Are civil rights synonymous with natural rights or not? If so do natural rights trump man made rights?
Life is short, Break the rules, Forgive quickly, Kiss slowly, Love
truly, Laugh uncontrollably, And never regret anything that made you smile.

Fight Me Online

De Selby

  • friend
  • Senior Member
  • ***
  • Posts: 6,836
Re: Is RKBA a CIVIL RIGHT?
« Reply #10 on: August 02, 2008, 06:34:57 PM »
Easy answer: Yes.

The definition of Civil right:
Quote from: Princeton Wordnet
(n) civil right - right or rights belonging to a person by reason of citizenship including especially the fundamental freedoms and privileges guaranteed by the 13th and 14th amendments and subsequent acts of Congress including the right to legal and social and economic equality

The first clause pretty much nails it.  "right or rights belonging to a person by reason of citizenship"

Just because it's a civil right doesn't mean it is not a natural right either.

That's not so easy, because the definition is obviously wrong.  The 13th and 14th amendments apply to non-citizens just as much as they do citizens. 
"Human existence being an hallucination containing in itself the secondary hallucinations of day and night (the latter an insanitary condition of the atmosphere due to accretions of black air) it ill becomes any man of sense to be concerned at the illusory approach of the supreme hallucination known as death."

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #11 on: August 02, 2008, 08:04:20 PM »
Quote
Fistful makes the argument that one can choose not to participate in discrimination against RKBA by simply spending one's money at another business. How is this any different from a minority simply choosing to spend their money in a business with no <insert minority of your choosing here> allowed? Why can't the minority simply go down the street to a business that doesn't discriminate? If the RKBA is indeed a civil right and further more a natural right must it not have the same level of protection then against discrimination as minorities have against discrimination by commercial enterprises?

The last time we had this discussion, a long-term APS addict just up and quit for a month or two.  It's a shocking thing to say, but when you think about it, you don't have a right to go into anyone's business.  They have a right to keep you out for any reason they choose, even if it is your skin color.  THAT WOULD BE WRONG, but they have a right to do so.  The right to do business is certainly not a "man-made right." 

Of course, the law does not currently recognize that right, in many cases. 

Just check out shootinstudent's explanation for our current legal reasoning, and you'll see how convoluted it is. 
Quote
Congress has prohibited private actors from engaging in racial and gender discrimination on the basis of commerce, for the most part.  The theory is that racially restrictive policies are extremely bad for business around the country, since those policies exclude a large number of people from engaging in this or that economic activity.  So via the right to regulate interstate commerce....congress gets to set rules for private businesses.

And mostly, the way congress does it is by providing a statute that says roughly "if you violate a person's right to be free from racial discrimination in interstate commerce, he can sue you and be paid damages."  It's a business and commercial damages issue, not a bill of rights issue, when dealing with private parties.
"Doggies are angel babies!" -- my wife

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #12 on: August 02, 2008, 08:24:11 PM »
Quote
The distinction I have drawn between natural and civil rights seems to make much more sense, and to have implications that correspond to the real world.  Additionally, if I understand correctly, they correspond with the thinking of the men who first made the notion of rights something the world actually cared about.  But the shootinstudent distinction merely divides rights into two classes - rights that folks will agree to recognize, and those they won't. 

No-rights that the agents of the state will lift up their arms to enforce, and rights that the agents of the state won't.

Your definition is not different from mine, except in wording.  The meaning is the same.  I'm not sure how useful your distinction is.  And are you saying that some rights don't deserve legal protection?  Can't tell. 


Quote
"natural rights" and "human rights" are the province of philosophy and theoretical systems.  They become relevant in terms of enforceability only in the context of the much despised big dreamy international and humanitarian legal systems.

Actually, the natural/civil distinction explains why there would be worldwide outcry if a nation arbitrarily rounded up foreign nationals within its borders, and subjected them to slavery or rape; yet non-citizens are routinely denied suffrage by host nations.  That is why I said that my view has practical meaning. 


Quote
The problem with your analysis is that it basically just renames the conflict Werewolf identified, and declares "there is no right to bear arms in someone else's house."  You need to consider the obvious question: Why not? If you try to explain why, you'll be required to discuss the property rights of others in order to explain why something can be a "human right," yet not be infringed just because someone else arbitrarily decides you can't excercise it when you step onto the boundaries of his land.

Unless you have some concept of one right "trumping" another, you could just as easily say "the right to hold and control property doesn't extend to depriving others of the right to self defense."  Or carve out any other number of discrete rules to describe the "natural" or civil rights of individuals.  In the end, all you will have done is created exactly the same hierarchy as someone who says "the right to control private property trumps the rights of others to keep arms", and left the obvious, that you have a hierarchy, unstated.

"My analysis" of natural vs. civil rights has nothing to do with the alleged conflict between property rights and the RKBA.  The right to property and the right to bear arms are both natural rights.  Or they could both be civil rights, if you like.  The point is simply that they are equal, and that there is no hierarchy; no trumping.

Quote
"there is no right to bear arms in someone else's house."  You need to consider the obvious question: Why not?
The answer is equally obvious - you have no right to be in anyone else's house.  It's very odd to contend that you have a right to bring your gun to my house, when of course you have no right to be in my house at all. 

Quote
If you try to explain why, you'll be required to discuss the property rights of others in order to explain why something can be a "human right," yet not be infringed just because someone else arbitrarily decides you can't excercise it when you step onto the boundaries of his land.
It's not infringed, because no one forced the "infringement" on you.  The same goes for the alleged deprivation of rights you also mentioned.  You might just as well argue that the carnival is depriving me of five dollars, because it imposes a cover charge.  If anyone is deprived of anything, it was on a consensual basis, so rights are not at issue. 
"Doggies are angel babies!" -- my wife

Antibubba

  • friend
  • Senior Member
  • ***
  • Posts: 3,836
Re: Is RKBA a CIVIL RIGHT?
« Reply #13 on: August 02, 2008, 11:26:32 PM »
RKBA is a Constitutional right, meaning it is a "civil" right spelled out in law.  But the creators of the Constitution also stated, in the Declaration of Independence, "...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...", meaning that they were codifying what they saw as, variously, either natural or God-given rights that could not be taken away.  The Framers were concerned with not just the right to own property, but the right to dictate what is and is not allowed on that property; this is inferred in the Third Amendment.

I realize this does nothing to clear up the debate.   laugh
If life gives you melons, you may be dyslexic.

Hawkmoon

  • friend
  • Senior Member
  • ***
  • Posts: 27,277
Re: Is RKBA a CIVIL RIGHT?
« Reply #14 on: August 03, 2008, 09:18:45 AM »
The confusion and the problem arise out of failure to recognize a distinction between people and corporations. Civil rights, in general, apply to public venues. Places such as stores, theaters and the like are not allowed to violate civil rights. They can't, for example, discrimate against (or toward) someone on the basis of several civil rights enumerated in law: age, gender, religion, race, etc. They cannot discriminate because they are quasi-public venues. Civil rights prohibitions do not extend to individuals in their own homes. Civil rights laws do not require that I admit Moslems into my home if I don't like Moslems, or that I admit Roman Catholics into my house if I don't like RCs, that I admit Buddhists if I don't like Buddhism, or that I admit people with blue hair if I don't like people with blue hair. But, once I embark on offering goods and/or services to the public, I am not allowed in that public venue to discriminate.

The RKBA is one of the basic human (which one might call "civil" rights specifically enumerated in the Bill or Rights. I'd say that makes it a "civil right." And IMHO that puts it on the same footing as other protected criteria such as race, religion, gender and age. I don't think it means that a private citizen should be forced to admit gun toters into their houses if they fear guns, but I do think it means that businesses should not be allowed to refuse admittance to citizens exercising the fundamental right to bear arms for self defense.
- - - - - - - - - - - - -
100% Politically Incorrect by Design

FTA84

  • friend
  • Member
  • ***
  • Posts: 364
Re: Is RKBA a CIVIL RIGHT?
« Reply #15 on: August 03, 2008, 02:29:33 PM »
Hawkmoon = got it.

The individual RKBA is a civil right (since all rights in the bill of rights must be civil rights and Heller v DC clarified the wording actually means an individual right).

What does a civil right entail? It says what the government cannot discriminate against gun owners.

What about businesses? As mentioned, this falls under Congress and commerce. If you want to restrict corporations from banning gun owners, you have to show that it impedes commerece.

What about private homes? You don't have to let anyone in you don't want to

By some of the logic in this thread, the right to vote cannot be impeded as it is a civil right.  Anytime I want to vote I can vote!  You cannot keep me from going into every stockholders meeting and voting!  When you family votes where to go to dinner, I am going to come in your house and insert my vote!  You best honor it or you will be violating my civil right to vote!

Just as civil rights are respective to the government, only the government can violate civil rights.

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #16 on: August 03, 2008, 02:40:00 PM »
FTA84,

I am defining "civil right" differently than you do.  If I am wrong, just say so.  But don't lie about what I said, please. 

My mistake.

Quote
Places such as stores, theaters and the like are not allowed to violate civil rights. They can't, for example, discrimate against (or toward) someone on the basis of several civil rights enumerated in law: age, gender, religion, race, etc. They cannot discriminate because they are quasi-public venues. Civil rights prohibitions do not extend to individuals in their own homes.

What a lot of bunk.  I had more to say, but I'll withdraw that for now. 

Making money, or serving the public, or whatever you like to call it, should not magically strip a person of obvious rights to property and association. 
"Doggies are angel babies!" -- my wife

grampster

  • friend
  • Senior Member
  • ***
  • Posts: 9,450
Re: Is RKBA a CIVIL RIGHT?
« Reply #17 on: August 03, 2008, 03:13:46 PM »
The only right you have in society today is the one which you choose to exercise, that if it offends another, who then seeks redress from the government, who then by judge, jury or government fiat a decision is made relative to your words or actions.
"Never wrestle with a pig.  You get dirty, and besides, the pig likes it."  G.B. Shaw

FTA84

  • friend
  • Member
  • ***
  • Posts: 364
Re: Is RKBA a CIVIL RIGHT?
« Reply #18 on: August 03, 2008, 05:02:31 PM »
FTA84,

I am defining "civil right" differently than you do.  If I am wrong, just say so.  But don't lie about what I said, please. 

I apologize if you felt my post was directed at you in anyway, it was not.  I was more so responding to the original post than subsequent replies. That is; Is there a logical leap Heller -> Civil Rights -> Fair Business Practices?  I am saying using my definition of civil right (i.e. a right granted to citizens of the country) then this is what Heller means and this should be what follows.  Obviously, there are God-given (aka natural) rights that cannot be removed.  For example, the right to life no longer vanishes when you step on to someone else's property.  You can't just be killed for simply trespassing (acting in a non threatening manner), whether the owner wants you there or not. 

These type of questions I think belong more to philosophy than law.  You start out with some unclear set of axioms about what is natural/God-given and argue yourself blue under a system of axioms that I rather guess is probably inconsitent and incomplete.  (No matter what they cannot be both consitent and complete!)  Under law, you start with more-or-less clear axioms.



Hawkmoon

  • friend
  • Senior Member
  • ***
  • Posts: 27,277
Re: Is RKBA a CIVIL RIGHT?
« Reply #19 on: August 03, 2008, 06:36:46 PM »
Making money, or serving the public, or whatever you like to call it, should not magically strip a person of obvious rights to property and association. 

We're going to have to agree to disagree on this one.
- - - - - - - - - - - - -
100% Politically Incorrect by Design

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #20 on: August 03, 2008, 06:55:43 PM »
FTA,

Sorry.  I guess I jumped to that conclusion.  See edited post.
"Doggies are angel babies!" -- my wife

Perd Hapley

  • Superstar of the Internet
  • friend
  • Senior Member
  • ***
  • Posts: 61,425
  • My prepositions are on/in
Re: Is RKBA a CIVIL RIGHT?
« Reply #21 on: August 03, 2008, 07:05:55 PM »
Making money, or serving the public, or whatever you like to call it, should not magically strip a person of obvious rights to property and association. 

We're going to have to agree to disagree on this one.


I guess so.  There's no reason why a person who wants to sell microwaves to Latinos and Asians should also be forced to sell them to white folks like myself.  And if I want to open a business that only sells real estate to Catholic Asian females between the ages of 48 and 73, that should be my business as well.  You simply can't justify using the force of law to intervene.  In the attempt to do so, our govt's end up trying to decide what motives would be acceptable for discrimination.  Race and sex are out these days.  Nudity is still OK to discriminate against - for now.  I think you can still discriminate against homosexuals, so long as you have some reason the courts will agree not to mess with.  For example, I think churches can decline to hire homosexuals on religious grounds.  But if you run some other kind of organization, that might not be allowed.  And if you have religious reasons not to work on Sundays or Saturdays, your employer has to accommodate you.  Unless of course, it would a problem for them.

What a silly mess.  How about if govt. just stays out of it and lets the market decide, huh? 
"Doggies are angel babies!" -- my wife

dogmush

  • friend
  • Senior Member
  • ***
  • Posts: 13,899
Re: Is RKBA a CIVIL RIGHT?
« Reply #22 on: August 04, 2008, 02:47:52 AM »
Quote
Making money, or serving the public, or whatever you like to call it, should not magically strip a person of obvious rights to property and association.

Perhaps it shouldn't, but it demonstratably does.

Given that it does, RKBA should be protected along with the rest of them.  All or none as far as the whole civil vs. (comercial) property rights.

doczinn

  • friend
  • Senior Member
  • ***
  • Posts: 1,205
Re: Is RKBA a CIVIL RIGHT?
« Reply #23 on: August 04, 2008, 06:32:50 AM »
Quote
How about if govt. just stays out of it and lets the market decide, huh? 
That's becoming my default reply to all sorts of dumb questions.
D. R. ZINN