Friday, February 8, 2013 | No comments

Utah Policy Gets it Wrong on Rights

By Connor Boyack

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In an article posted yesterday on the Utah Policy website, Bob Bernick argued against the alleged “obsession” of “GOP Utah legislators when it comes to gun rights.” Bernick proceeded to highlight a legislative instance in which the sponsor amended his trespassing-related bill to emphasize and explicitly protect the ability of a gun owner to carry his gun without fear of automatically being charged with trespassing.

“I just don’t get this vehemence in protecting 2nd Amendment rights,” Bernick wrote. “And I don’t see such strict adherence on other ‘constitutional rights.'”

His singular example used to demonstrate his point was the lack of emphasis (if not attack) by legislators on the ability to use citizen initiatives to modify the law. Numerous times, Bernick refers to this process as a “right”—one which “all Utahns have and should be concerned about, not just the Utahns who have guns and are fighting mad about gun rights.”

It is clear upon reading the article that Bernick misunderstands what rights actually are, and because of this misunderstanding, conflates individual rights with government-granted privileges and powers.

An actual “right” exists independent of government. If you were to completely abolish the state, you would still have your rights. You would have the ability and moral authority to associate with others, to communicate and worship and protest. You would have the right to your privacy, free from the prying eyes of your peers. And, specific to the reference Bernick makes, you would have the right to defend yourself against aggressors.

This right—the right to self defense—is an inherent and pre-existing right which legitimate governments exist to protect. As the Declaration of Independence proclaims, “governments are instituted among men” in order to “secure [unalienable and pre-existing] rights.” Legitimate governments do not create this right, but rather work to secure it. For that reason, as we read in Article I Section 6 of Utah’s Constitution:

The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed…

The right to keep and bear arms, predicated on the pre-existing right to self-defense, is an actual “right.”

In contrast, the ability for voters to modify their government through a citizen initiative is not an actual “right” because it does not exist prior to and independent of government; one cannot modify a government that does not exist. The ability to modify a government’s laws through the initiative process is merely a procedural concession that may or may not be granted.

Further, there is a strong case to be made that citizen initiatives have no place in a Republic. The U.S. Constitution, in Article IV, notes that “The United States shall guarantee to every State in this Union a Republican Form of Government.” The founders intended for the states within the Union to steer clear of democracy by using a representative model alone, with written constitutions and a fixed body of law founded upon natural law. A citizen initiative, in contrast, is a fundamental method of seeking political change through democracy—something the founders widely despised and advocated against.

Regardless, a democratic change in government is not a pre-existing and actual “right” and therefore is nowhere close to being on par with actual, unalienable rights such as the ability and moral authority to protect one’s self against all aggressors.

Bernick rightly notes that (what he calls) “gun rights” receive a lot of attention at the Utah legislature. In our view this is a welcome development, for there are fewer more important purposes of legitimate government than to focus on the “security of individual rights,” as advocated by our own state’s Constitution. This is something to be praised, and not scorned.

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About the Author

Connor Boyack is president of Libertas Institute. He is the author of several books on politics and religion, including the Tuttle Twins series for children.


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