Aug 1Liked by Adrian Vermeule, Managing Editors- New Digest
The framing for this is interesting and I would say a very useful argument to advance in defense of gun rights. Too often, I think, conservatives defend gun rights in purely individual terms, leaving it to liberals and the left to argue for their own version of the common good. The two clauses of the Second Amendment stipulate gun ownership as an individual right framed within militia membership in a way that illustrates that the personal and collective are bound to the same ultimate rationale- armed defense is the right and proper duty of individuals and the state.
I have some questions about this piece. Let me start with this passage.
“Law must also be oriented to the common good. What the common good is, is a complex question. In a sense it is easier to talk about what it is not. At the most fundamental level, the common good is not a private good. This means that the common good is not the good of the ruler—benefiting the state apparatus at the expense of its subjects. Tyranny is therefore antithetical to the common good. It is also not the good of a majority of citizens. That collection of private goods can easily also become tyrannical to the good of the broader community. But the common good is also not synonymous with a public benefit. Many things that actually harm the common good are pitched as a public benefit. Consider abortion: lawmakers could justify a requirement that doctors perform abortions in terms of the public good, health, and safety. But this facial justification is not sufficient to make the law comport with the common good since it is antithetical to the natural law principle of protecting innocent life.”
As it happens, I don’t accept that (as a matter of either morality or Christian theology) there is a binding “natural law principle” prohibiting abortion in the early months of pregnancy (if that is what is being said: strictly speaking, the passage seems to be contemplating a requirement on (all) doctors to perform abortions: a requirement that certainly doesn’t exist in the UK - where any doctor is entitled to refuse to perform them on conscience grounds).
But that isn’t my question. Rather, my question is one about what sort of claim is being made here. Is it a purely normative one (laws should not permit (any) abortion and a ruler/democratic assembly that passes such permissive laws is behaving immorally)? Or (as a doctrine of constitutionalism, ie at some level a claim about how courts should approach questions of legal interpretation within a constitutional order) is it a claim about how courts should approach legislation on abortion (presumably, given the claim, that they should try as hard as they can within the limits of their judicial function to interpret abortion laws as narrowly as possible - and, presumably, even if there was overwhelming political support for liberal abortion laws).
The article is of course mainly about the second amendment. Which again from a UK perspective raises similar questions about claims made in the article about various kinds of “natural law” rights of self defence. Our law doesn’t recognise any such rights in relation to firearms (strict licensing rules and obligations on those few who are allowed firearms to use them only for sport or pest control). And our strict rules have overwhelming political and public support. So what sort of claim is being made here in relation to the UK?
I won’t speak for the author, but I think I can speak to some of these Qs. The overarching theme undergirding the piece is the teleological nature of law in the natural law tradition.
Laws point, like political authority in general, is to promote the common good. But of course common good isn’t just the Thrasymachus-ian “whatever the powerful decree”. I think the abortion point envisages a state where certain forms of abortion or infanticide are required in the interest of the “good” of the State (I presume the author might have been imagining pre-Christian practices of infant exposure, or Malthusian one child policies or what have you). This of course is deeply corrosive to the common good, which has to be built on what is truly good for all, like justice and charity (in the sense of love of fellow man); which rules out intentional destruction of fellow members of the human family. To single out members of the community for destruction would be a negation of that most basic of human goods. So, even if the State authorities and everyone in that society thought this would be a good idea for the State, it would still be deeply corrosive to their common good - for those at the brunt of the evil acts, for those who commit the evil acts, and those who become numb or indifferent to the evil acts.
As for the pieces implications for the U.K. as it is today, I don’t think there is much specific being offered. If the State were to ban self defence then it would be acting unjustly and contrary to natural law. But how to affirmatively specify the scope of that precept - to protect innocent life - requires very onerous tailoring, including what implements of defence people can utilise. I don’t see any case that could be made out that the U.K.’s strict regulation of firearms endangers the ability of persons to protect life and property.
Indeed, my own view is that the determinatio by by the American polity in the 2nd amendment was a reasonable one in the 18th century, but in light of changing circumstances and unreasonable interpretations has become a determinatio that facilitates grave injustices and should be repealed or amended. But I think many injustices could be greatly ameliorated by some of what the author recommends re interpretation.
Finally, in respect of legal interpretation. The classical natural law tradition (as ably documented by the likes of Richard Helmholz in his Natural Law in Courts book) has primarily been about harmonising natural law and positive law. So in general terms, yes, a statute that seems to permit grave injustices would be interpreted to be as close in conformity to natural law as possible, or if it’s radically unjust then the judge should resign rather than enter judgment implementing it, or if the judge has authority to do so, set it aside.
Thanks. I think though that there is a wider point here about the teleological nature of law in CHC.
Is its conception of natural law a relatively thin one (the sorts of example you give of compulsory abortion, infanticide, or a complete prohibition on self-defence - or presumably prohibiting torture or slavery, though pre-Enlightenment natural law teaching wasn’t exactly consistent on either of those) or does it go beyond that to insist on rules that are obviously, at the lowest, controversial (strict limits on abortion) or indeed, now, wildly unpopular (confining marriage to opposite sex couples, prohibiting divorce). (Indeed, those claims are essentially Roman Catholic or fundamentalist Protestant, noting that many Protestant traditions now cheerfully, or in the CofE’s case edgily, accept single sex marriage and take pro-choice positions on abortion.)
If the former, it’s unclear what natural law/CGC adds to generally settled principles of legal interpretation in common and civil law tradition, apart from grounding them historically and without basing itself on relatively modern rights charters (useful and interesting in itself, a corrective to the “let’s start with the ECHR/Bill of Rights” focus of some liberal lawyers, and in the US a challenge to originalism).
If the latter, then it’s entirely unclear (to me) how such strong natural law claims cash out in terms of how courts within an actual constitutional order - in particular our constitutional order, “our” being the UK, the US, Ireland or wherever one is talking about - should approach their task, given that the promulgated law in many areas demonstrates that the (democratic) just doesn’t accept those strong claims.
This article misses a key aspect of the Second Amendment: the founders wrote it as a limitation on federal power as applied to the states, NOT as an individual right. It only became an individual right, arguably, via the Fourteenth Amendment almost 80 years later. This means that, when written, the Second Amendment was exclusively rooted in the principles of community protection (specifically the states against tyranny) and not in the natural right to self protection. That concept was within the states’ police powers. To read it into the Second Amendment directly strains both text and history. A textualist approach must read it into the Fourteenth Amendment, while a naturalist must look to the context of a very different era, and a very different Congress, to see how the balancing act of natural rights was conceived.
This is not true. Yes, the 2A was written well before it was incorporated, but the right that the Second Amendment identifies was always understood, by all of the Framers, as an individual right. When the Framers concretized the right to keep and bear arms — which developed from the English right of Protestants to keep and bear arms, etc. — they were identifying a common law/right existing robustly in the legal tradition and then incorporating it, by reference, into the positive law of the Constitution. That’s why it’s fruitful to look at the broad swathe of state court constitutions and legal decisions to figure out what exactly it was they were incorporating by reference. Simply put, there is no history that shows that the 2A was made with collectivist only aims, or that the express purpose of the 2A was to regulate the federal government vis a vis the states. Lots of the body of the Constitution does so — but the whole point of the Bill of Rights (except the 10A) is to identify a slew of individual rights and say “the Federal government may not reach down to individuals and do X.”
The piece also gets at a bunch of what I mentioned and I bet the full law review article fleshes it out more. I would also suggest professors’ Will Baude and Robert Leider’s article “The General-Law Right to Bear Arms,” because it is much more eloquent and sophisticated than my response, here, can be.
Exactly— well put!
The framing for this is interesting and I would say a very useful argument to advance in defense of gun rights. Too often, I think, conservatives defend gun rights in purely individual terms, leaving it to liberals and the left to argue for their own version of the common good. The two clauses of the Second Amendment stipulate gun ownership as an individual right framed within militia membership in a way that illustrates that the personal and collective are bound to the same ultimate rationale- armed defense is the right and proper duty of individuals and the state.
The last sentence is missing “legislator” before “just”.
I have some questions about this piece. Let me start with this passage.
“Law must also be oriented to the common good. What the common good is, is a complex question. In a sense it is easier to talk about what it is not. At the most fundamental level, the common good is not a private good. This means that the common good is not the good of the ruler—benefiting the state apparatus at the expense of its subjects. Tyranny is therefore antithetical to the common good. It is also not the good of a majority of citizens. That collection of private goods can easily also become tyrannical to the good of the broader community. But the common good is also not synonymous with a public benefit. Many things that actually harm the common good are pitched as a public benefit. Consider abortion: lawmakers could justify a requirement that doctors perform abortions in terms of the public good, health, and safety. But this facial justification is not sufficient to make the law comport with the common good since it is antithetical to the natural law principle of protecting innocent life.”
As it happens, I don’t accept that (as a matter of either morality or Christian theology) there is a binding “natural law principle” prohibiting abortion in the early months of pregnancy (if that is what is being said: strictly speaking, the passage seems to be contemplating a requirement on (all) doctors to perform abortions: a requirement that certainly doesn’t exist in the UK - where any doctor is entitled to refuse to perform them on conscience grounds).
But that isn’t my question. Rather, my question is one about what sort of claim is being made here. Is it a purely normative one (laws should not permit (any) abortion and a ruler/democratic assembly that passes such permissive laws is behaving immorally)? Or (as a doctrine of constitutionalism, ie at some level a claim about how courts should approach questions of legal interpretation within a constitutional order) is it a claim about how courts should approach legislation on abortion (presumably, given the claim, that they should try as hard as they can within the limits of their judicial function to interpret abortion laws as narrowly as possible - and, presumably, even if there was overwhelming political support for liberal abortion laws).
The article is of course mainly about the second amendment. Which again from a UK perspective raises similar questions about claims made in the article about various kinds of “natural law” rights of self defence. Our law doesn’t recognise any such rights in relation to firearms (strict licensing rules and obligations on those few who are allowed firearms to use them only for sport or pest control). And our strict rules have overwhelming political and public support. So what sort of claim is being made here in relation to the UK?
I won’t speak for the author, but I think I can speak to some of these Qs. The overarching theme undergirding the piece is the teleological nature of law in the natural law tradition.
Laws point, like political authority in general, is to promote the common good. But of course common good isn’t just the Thrasymachus-ian “whatever the powerful decree”. I think the abortion point envisages a state where certain forms of abortion or infanticide are required in the interest of the “good” of the State (I presume the author might have been imagining pre-Christian practices of infant exposure, or Malthusian one child policies or what have you). This of course is deeply corrosive to the common good, which has to be built on what is truly good for all, like justice and charity (in the sense of love of fellow man); which rules out intentional destruction of fellow members of the human family. To single out members of the community for destruction would be a negation of that most basic of human goods. So, even if the State authorities and everyone in that society thought this would be a good idea for the State, it would still be deeply corrosive to their common good - for those at the brunt of the evil acts, for those who commit the evil acts, and those who become numb or indifferent to the evil acts.
As for the pieces implications for the U.K. as it is today, I don’t think there is much specific being offered. If the State were to ban self defence then it would be acting unjustly and contrary to natural law. But how to affirmatively specify the scope of that precept - to protect innocent life - requires very onerous tailoring, including what implements of defence people can utilise. I don’t see any case that could be made out that the U.K.’s strict regulation of firearms endangers the ability of persons to protect life and property.
Indeed, my own view is that the determinatio by by the American polity in the 2nd amendment was a reasonable one in the 18th century, but in light of changing circumstances and unreasonable interpretations has become a determinatio that facilitates grave injustices and should be repealed or amended. But I think many injustices could be greatly ameliorated by some of what the author recommends re interpretation.
Finally, in respect of legal interpretation. The classical natural law tradition (as ably documented by the likes of Richard Helmholz in his Natural Law in Courts book) has primarily been about harmonising natural law and positive law. So in general terms, yes, a statute that seems to permit grave injustices would be interpreted to be as close in conformity to natural law as possible, or if it’s radically unjust then the judge should resign rather than enter judgment implementing it, or if the judge has authority to do so, set it aside.
Thanks. I think though that there is a wider point here about the teleological nature of law in CHC.
Is its conception of natural law a relatively thin one (the sorts of example you give of compulsory abortion, infanticide, or a complete prohibition on self-defence - or presumably prohibiting torture or slavery, though pre-Enlightenment natural law teaching wasn’t exactly consistent on either of those) or does it go beyond that to insist on rules that are obviously, at the lowest, controversial (strict limits on abortion) or indeed, now, wildly unpopular (confining marriage to opposite sex couples, prohibiting divorce). (Indeed, those claims are essentially Roman Catholic or fundamentalist Protestant, noting that many Protestant traditions now cheerfully, or in the CofE’s case edgily, accept single sex marriage and take pro-choice positions on abortion.)
If the former, it’s unclear what natural law/CGC adds to generally settled principles of legal interpretation in common and civil law tradition, apart from grounding them historically and without basing itself on relatively modern rights charters (useful and interesting in itself, a corrective to the “let’s start with the ECHR/Bill of Rights” focus of some liberal lawyers, and in the US a challenge to originalism).
If the latter, then it’s entirely unclear (to me) how such strong natural law claims cash out in terms of how courts within an actual constitutional order - in particular our constitutional order, “our” being the UK, the US, Ireland or wherever one is talking about - should approach their task, given that the promulgated law in many areas demonstrates that the (democratic) just doesn’t accept those strong claims.
This article misses a key aspect of the Second Amendment: the founders wrote it as a limitation on federal power as applied to the states, NOT as an individual right. It only became an individual right, arguably, via the Fourteenth Amendment almost 80 years later. This means that, when written, the Second Amendment was exclusively rooted in the principles of community protection (specifically the states against tyranny) and not in the natural right to self protection. That concept was within the states’ police powers. To read it into the Second Amendment directly strains both text and history. A textualist approach must read it into the Fourteenth Amendment, while a naturalist must look to the context of a very different era, and a very different Congress, to see how the balancing act of natural rights was conceived.
This is not true. Yes, the 2A was written well before it was incorporated, but the right that the Second Amendment identifies was always understood, by all of the Framers, as an individual right. When the Framers concretized the right to keep and bear arms — which developed from the English right of Protestants to keep and bear arms, etc. — they were identifying a common law/right existing robustly in the legal tradition and then incorporating it, by reference, into the positive law of the Constitution. That’s why it’s fruitful to look at the broad swathe of state court constitutions and legal decisions to figure out what exactly it was they were incorporating by reference. Simply put, there is no history that shows that the 2A was made with collectivist only aims, or that the express purpose of the 2A was to regulate the federal government vis a vis the states. Lots of the body of the Constitution does so — but the whole point of the Bill of Rights (except the 10A) is to identify a slew of individual rights and say “the Federal government may not reach down to individuals and do X.”
The piece also gets at a bunch of what I mentioned and I bet the full law review article fleshes it out more. I would also suggest professors’ Will Baude and Robert Leider’s article “The General-Law Right to Bear Arms,” because it is much more eloquent and sophisticated than my response, here, can be.