"Rights Consequentialism" and McDonald

The title of this post is something of a contradiction in terms. In moral philosophy, "rights" tend to be associated with deontologists, who regard morality as a series of duties that exist independent of their consequences. The arch-enemy of deontology is consequentialism, the belief that the relevant target of moral evaluation is the consequences to be achieved, rather than means used to achieve them.

I tend to fall into the consequentialist camp, and I feel that my legal and political philosophies must track my moral ones for my theories to be internally consistent. Yet, I am something of a libertarian at heart, and I put a great deal of emphasis in my personal legal philosophy on rights and liberties. This can be reconciled through a form of "rule consequentialism"--the theory that the relevant target of moral evaluation is the consequences of the rules by which we guide our actions. As I argued in my senior thesis (inspired by my advisor), the best defensible form of rule consequentialism (which I dub "sophisticated consequentialism") is one in which the appropriate level of generality for the rules is the one at which human cognition is too slow or imprecise to evaluate the effect of increased rule complexity.

More on Guns

I want to elaborate further on an idea that I raised in my previous post. The trouble that rights-minded people like me run into when we argue against certain rights is that we have to explain why we are absolute in the protection of certain rights, willing to compromise on some, and against the protection of others.

"A well regulated Militia, being necessary to the security of a free State...." Read in the expansive way I interpret rights, I must read the prefatory clause of the Second Amendment broadly. Accordingly, I read the world "security" broadly. Security means security against the tyranny of the federal government, and, after the 14th Amendment, against the tyranny of state governments. It also means local policing, as this was another function of the 18th century militia. It means defense of one's home and one's neighbor's home. As one of my law school professors explained, there is a pattern in the first four Bill of Rights. The First Amendment starts with religion—our innermost thoughts—and moves outward to personal speech, press, and assembly. The Second Amendment reflects a desire for protection of our persons. Moving outward again, the Third Amendment is a protection of our homes, and the Fourth is a protection of our effects.

A Theoretical Constitution in a Practical World

"In theory, there is no difference between theory and practice. But in Practice, there is." - J.L.A. van de Snepscheut.

In theory, today's opinion in McDonald v. Chicago (PDF) was absolutely correct. As I have argued elsewhere, the prefatory clause of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State," does not provide the outer obvious boundaries for the Second Amendment's reach. Briefly, what primarily concerned the Framers in writing the Second Amendment was protection from a tyrannical government that sought to impose law by force rather than by functioning self-government. But "security" is not so simple a concept: The people of a state have the right to self-preservation as against all enemies—foreign and domestic, governmental and non-governmental. In an era of less-than-modern police forces, communities relied on their individual right to keep and bear arms for this security.

Privileges and Equality: The Double-Edged Sword of the 14th

I've been thinking about an issue I tweeted about last month, the issue of whether the Supreme Court can (or will) incorporate the Second Amendment through the Privileges or Immunities Clause (POIC) (instead of the Due Process Clause (DPC)). Certainly, saying that owning guns is implicit in the concept of ordered liberty is a bit of a stretch. Second, at least one article notes that there is "some evidence that the amendment’s writers specifically wanted the clause to apply to allow freed slaves to have guns to defend themselves." Third, overturning—or at least limiting—The Slaughterhouse Cases would be totally awesome for ConLaw geeks like me.

However, there is one problem with the Privileges or Immunities Clause: It doesn't help everyone. While incorporating rights through the DPC protects "any person," incorporating through the POIC protects "citizens." Noncitizens are out of luck.

Or are they?