The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
They had the “right” but they weren’t able to exercise it. The moral wrongness of withholding their inherent right to life, etc. Is what created the moral impetus to free the slaves. It is a subtle but important difference. If rights are inherent, they can’t be removed without violating the moral fabric that those rights are based on. Thus, when a government removes the ability to exercise an inherent right, that is what makes that government’s action “wrong” and not just “different”.
I’m not buying that. Slavery has been a staple of civilizations all through history. There’s no universal law of nature that any being has any right to life, freedom or self-determination.
The “moral fabric” isn’t some universal constant either. It too is a function of society. In the U.S., for instance, in 1776 there was no moral problem with slavery. Time went by and morality in the country evolved such that slavery, for many, was no longer acceptable. But it wasn’t that the moral fabric of U.S. society was violated in 1776, it was just different in 1776.
Who knows, in another 100 years people might consider something that is normal today to be some huge violation of something that should be a human right.
Yup, fair enough. If I wasn’t clear, I’m not necessarily arguing that I believe in the concept of inherent rights. I’m an atheist, so I have a bit of trouble with it, too. Nonetheless, it has a very long tradition and underpins the modern concept of rights. At least conceptually, we lose something when we say that rights are contingent rather than inherent.