Natural Rights, Positive Rights, and the Right to Keep and Bear Arms
22 Pages Posted: 28 Oct 2020
Date Written: September 8, 2020
The first judicial opinions interpreting the right to bear arms embraced vastly divergent views of the right, leading scholars to perceive these decisions as being in disarray. This article argues that these conflicts reflect exactly the sorts of disagreements that one would expect given that Americans viewed the right to bear arms as a natural right and as a positive right. Indeed, the first right-to-bear-arms decisions exemplified tensions that emerged when judges confronted claims about natural rights and positive rights in a changing social and legal landscape. As a natural right, the right to carry firearms could only be limited in promotion of the public good, which was quintessentially a question of legislative judgment. Yet emergent attitudes about judicial review counseled against absolute deference to legislatures. As a positive right, the right to bear arms offered more determinate legal protection. But its tradition-based content did not specify how to resolve novel problems, and entrenched norms posited that judges could only apply existing law — not make it up. Enforcing natural rights and positive rights in novel circumstances thus required judges to adopt rules that were over-inclusive, under-inclusive, or a combination of both. And that is precisely what one sees in the first right-to-bear-arms cases. The article concludes with a discussion of how this history bears on contemporary debates about the Second Amendment.
Keywords: Second Amendment, Right to Keep and Bear Arms, Constitutional History, Originalism
JEL Classification: K10
Suggested Citation: Suggested Citation