Against Reliance on Positive Law Arguments


On 18 April 1775, a middle-aged man in Boston sat, almost certainly in his study, and, as a warm fire crackled[1], set quill to paper. That man was General Thomas Gage, and the letter he wrote to Lieutenant Colonel Francis Smith contained an order, an order that became the proximate cause of the American Revolution. The contents of that order? A command to march on Concord and "seize and [destroy] all Artillery, Ammunition, Provisions, Tents, Small Arms, and Military Stores whatever".

An order to seize arms, to violate the fundamental and inalienable derivative[2] right of the people to keep and to bear arms sparked the Revolutionary War[3]. The modern American Left would do well to learn from history. Alas, many on the Left (including Barack Obama and Hillary Clinton[4]) seem intent on disregarding not just history, but also fundamental rights.

If, on 20 January 2017, the words "Madam President" are uttered for the first time in the US[5], then we are all in for a rough road. Fundamental rights and freedoms will come under attack by a reinvigorated Left flush from victory. The Second Amendment and the rights it enshrines will undoubtedly be high on the hit list.

As it stands, the Supreme Court is roughly evenly divided[6] between those who would uphold the Second Amendment and the rights it enshrines (i.e., interpret and apply the Constitution as written and intended) and those who would happily chip away at the foundations of our Republic if someone would only give them a fifth vote. While there are no guarantees that Donald Trump will appoint (or that the Congress will confirm) a principled, conservative jurist[7], there is zero doubt that Clinton would appoint a Leftist who would do violence to the the First, the Second, the Fourth, the Ninth, and the Tenth Amendments[8] as soon as the opportunity presented itself. Do we want to rely on the stalwartness of Congressional Republicans to block such an appointment?

Fortunately, there is an alternative route. For at least the last few decades, debate about the Second Amendment[9] has focused on the positive law[10] (particularly the Constitution, theories of interpretation, the Supreme Court, and the amendment process). For the Leftist, this is wise; for the Conservative, this is foolish. Now, I am not saying that we shouldn't engage the Left when it comes to legal interpretation (we should) or that we shouldn't defend the Constitution (we absolutely should[11]). What I am saying is that focusing on the positive law argument is our weakest position (because the positive law is preeminently malleable) and their strongest position. There are other arguments for the rights enshrined in the Second Amendment; one, in particular, is devastating to the Left.

For the Leftist, rights and freedoms flow from the positive law and the positive law flows from the Government (ergo, rights flow from the Government[12]). This was not the view of the Founding Fathers[13] and it should not be the view of any true Conservative (or Rightist of any flavor).

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
— The Declaration of Independence (04 July 1776)

For the Founding Fathers, certain rights were fundamental and inalienable due their genesis (i.e., their grant by a Creator[14]). While the Declaration does not enumerate all of the rights the Founding Fathers believed[15] to be fundamental and inalienable, it enumerates enough that we need search no further in our pursuit of alternative argumentation in favor of the rights enshrined in the Second Amendment. From the right to life flows two additional fundamental and inalienable rights[16]: the right to self-defense and the right to defense of others.

Naturally, a right to self-defense would be rendered entirely meaningless if the one possessed of such a right could not make it effective (i.e., exercise it when needed). And here we have our logic for the rights enshrined in the Second Amendment:

If there is a right to life, then there is a right to self-defense (i.e., the right to protect the right to life) and a right to defense of others (i.e., the right to exercise another's right to self-defense on his behalf). If there is a right to self-defense (and to defense of others), then there is a right to make these rights effective (i.e., a right to be empowered to exercise these rights when needed). Ergo, there is a right to keep and to bear arms[17].

So, the next time you find yourself in an argument with a Leftist (or we find ourselves having to fight off a gun grab sanctioned by a Obama- and Clinton-packed Supreme Court), don't forget the Natural Law (or at least the argument that inherent, fundamental, and inalienable rights exist). Leftists may very well destroy our Constitution, they have been doing so with varying degrees of effectiveness and various rates of speed for decades, but no amount of change and no amount of decay excuses the violation of rights that do not flow from the positive law, but from a much higher Authority.

  1. Weather reporting for that evening places the temperature somewhere in the high thirties or low forties. ↩︎

  2. The right to keep and to bear arms derives from the right to self-defense (and the right to defense of others) which in turn derives from the right to life. ↩︎

  3. Yes, there were other causes (e.g., numerous and increasing taxes, issues of representation and governance, and violations of fundamental legal rights), but the proximate cause was the march on Concord and the ensuing skirmishes. ↩︎

  4. Even moreso in the case of Hillary Clinton after being pulled further to the Left by Bernie Sanders and his army of Socialists. ↩︎

  5. At least the first time outside of the fever dreams of Hollywood and the most fervent denizens of the Left. ↩︎

  6. Much rests upon Justice Kennedy's mood swings and how he believes the New York Times will write about him the next morning. ↩︎

  7. It would probably be too much to hope for another Scalia. ↩︎

  8. As if the Ninth and Tenth have not already been eviscerated by decades of Leftist incrementalism. ↩︎

  9. And other Constitutional rights generally, but we're here focused on the Second Amendment. ↩︎

  10. positive law (n) — statutes that have been laid down by a legislature, court, or other human institution and which can take whatever form the authors want
    — New Oxford American Dictionary ↩︎

  11. The Constitution is, after all, the oldest and best constitution in the world and presides over the strongest, most prosperous nation in human history. ↩︎

  12. If A = B and B = C, then A = C. A little trip back to middle school and the transitive property. ↩︎

  13. "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …" (emphasis added). ↩︎

  14. If you are so inclined, you may instead appeal to Nature without doing much violence to the argument. ↩︎

  15. Some of the Founding Fathers were fairly prolific writers and greater insights can be gained from the Federalist Papers, personal letters, and numerous other historical documents. ↩︎

  16. Technically, the right to defense of others flows from the right of self-defense, but close enough. ↩︎

  17. This final statement is shorthand. What we are arguing is that force of arms may be necessary to make effective the rights to self-defense and defense of others and, consequently, arms being necessary to make effective the rights to self-defense and defense of others, there is a derivative right to keep and to bear arms. ↩︎