Right to health care should be in the constitution instead of right to own guns.
Not taking guns doesn’t require anyone’s labor, so you don’t run into this hazard.
I’m not particularly pro gun, I just don’t think positive rights are practical from a design perspective.
Whether that's true or not depends on the exact parameters of the right, and, in any case, the US has compulsory civic labor notwithstanding the 13th Amendment (jury service actively, conscription historically). Jury service direct relates to a positive right.
It also has positive rights which require labor but which somehow are not achieved by forced labor (voting, for instance, requires supporting labor.)
> I’m not particularly pro gun, I just don’t think positive rights are practical from a design perspective.
And yet, the US has positive rights, and the system hasn’t collapsed (e.g.,.the right to assistance of counsel in criminal cases, for instance, in addition to others previously listed.)
As always, you simply need to provide people with a living wage and they will do things. A right to health care would simply become a national health system that is adequately funded. Then the only argument would be, how much do we need to fund that health care system to fulfill our obligation to provide people with a right to health care.
People become medical practitioners for many reasons and will happily practice medicine as long as they can make a living off of it without being coerced or manipulated. A few want to be able to afford a Ferrari, but the vast majority just simply want to help people and be able to thrive.
If positive rights make you so uncomfortable, I'll let you know they are very much widespread in today's constitutions. My canton's has many economic rights enumerated, including the right to a proper shelter. And I don't hold it for a nasty totalitarian dictatorship (yet?)
Of course it does. Labor is always required to protect your legal rights. Government, military, police, courts, those are all labor.
This labor is the difference between actually having enforceable legal rights and living in the Hobbesian state of nature, the war of all against all.
> Not taking guns doesn’t require anyone’s labor,
It does. Somebody has to take care of all the bodies. Mass shootings and homocides in general are pretty expensive both directly and due to lost future productivity.
You have the right to an attorney. The state hiring and assigning public defenders isn't "forced labor." I don't know where this canard came from. It makes no sense if you spend more than 10 seconds thinking about it.
"The smart people can work remote in Bali for 2x the median USD salary. If your not one of the smart people then you can bath and wipe old people's asses all day while being exposed to all kinds of pathogens for the median salary. The reason we don't have more of this is because of capitalism and whatever politics I don't like".
Variations on this theme in pretty much every topic with over a 100 replies.
There was no serious jurisprudence to interpret the second amendment as an individual right until the 60s. Guns were acknowledged as a practical tool and people saw practical issues with banning them, but that was it.
You’re correct to identify “the people” as the key phrase, and you’re correct that the second amendment is referring to a collective right. But so are the other amendments referring to “the people.” The constitution is talking about a whole society, not individuals. E.g. the fourth amendment guarantees a society where “the people” aren’t subject to unreasonable searches from police. But that collective right also protects the individual. What applies to the collective applies to its individual constituents.
This makes sense in the context of the 2nd amendment: militias were “bring your own firearm.” The collective right was enforced through the individual guarantee. There was no need to interpret the second amendment in the past because it really wasn’t unclear what the framers meant. Some of the key figures in the Supreme court’s recent jurisprudence on the second amendment were prominent liberal academics like Larry Tribe and Akhil Amar. Here is Larry Tribe talking about how he changed his mind on the second amendment once he started seriously researching it: https://hls.harvard.edu/today/why-i-changed-my-mind/ (scroll down).
Your strongest argument is that the second amendment only applies to the federal government, not the states. That’s clearly true, but that’s true of every other amendment as well. The first amendment’s Establishment Clause clearly was intended to prevent the federal government from interfering with established state churches, or creating its own. The “wall of separation” phrasing wasn’t used by the Supreme Court until 1946. (Ironically, it was quoting the individual views of Thomas Jefferson, who also believed we should overthrow the government every couple of decades. With guns that every individual was entitled to bear!)
I’m willing to entertain the view that our whole incorporation doctrine is non-sensical, but that cuts more broadly than I think most gun control advocates would like to go. Moreover, the notion that the 14th amendment was meant to apply the second amendment to states is far better supported than the incorporation of the first amendment. Disarmament of freed slaves was specifically one of the concerns at the time: https://www.encounterbooks.com/features/racist-roots-gun-con...
https://constitutioncenter.org/the-constitution/supreme-cour...
Technically many of us are considered members of the Federal militia, although in practice that statute is effectively moot.
https://uscode.house.gov/view.xhtml?path=/prelim@title10/sub...
I do NOT have US health insurance, because it is unaffordable.
Zero dependents — if I had anybody to legally be responsible, I would be on a policy. Probably.
NO CODE
The inclusion of positive rights simply reduces the space of possible circumstances the government can traverse without removing rights, and depending on what sort of positive right we are taking about it does so drastically. Giving the government the ability to remove rights is dangerous for obvious reasons (they aren’t really rights at that point, are they).
If the medical system is ever mismanaged to the point of insolvency, should the government have the ability to violate a constitutional right to get things back in order? If they are allowed to violate that right, presumably they are able to violate other “rights” in the same class depending on the circumstances as well.
No one is saying constitutions with positive rights are totalitarian. I am just saying that they are fragile and should be avoided for that reason.
If what you want is a government health care system that can be modified or canceled based on circumstances, then that’s fine, but you can’t call it a “right” since you aren’t treating it as one.
Well yes?
Some rights may be absolute. Some others may be limited. Things are rarely absolute. Democracies are more than their respective constitution. They also rely on their political culture and how healthy it is. Even if your constitutional norms are supposedely "weak", does it matter in the end? It's not a bench of judges who are gonna protect your rights, but citizens as a whole.
That's why this whole argument that positive rights being displayed as "flaws" doesn't make much sense to me. And why guaranteeing access to proper healthcare sounds to me like a well balanced risk.
What is more likely? Than the State will turn you into a slave through this positive right to healthcare, or that you will end up dead by lack of said guaranteed access to healthcare ?
You may say that, but that doesn't necessarily make it true. If we look at how this works out in practice, are constitution with positive rights really more fragile? There's nothing fragile about Switzerland, for example; that's probably one of the most stable countries in the world. The US, on the other hand, seems to be constantly teetering on the edge of bankruptcy and/or authoritarianism. Government institutions frequently seem to violate the law with impunity, and now Trump, a major presidential candidate, seems to want to get rid of the constitution.
Political culture is probably much more important than the distinction between positive and negative rights, and I don't think a culture of hurting people or letting people suffer, is good for any country.
Jury duty places a large burden on many people. I served on a jury and there were people who missed out on work and made $20 per day.
Exercise of all rights is voluntary. Voting requires someone else’s labor (ballot preparation, vote counting, etc.), which is the attribute that you said makes positive rights impractical.
> Jury duty places a large burden on many people.
And, yet, trial by jury is a right.
I think the construction of if the state does X, it must also do Y sets it apart from a universal positive right.
I'm not a lawyer, but I believe the state can refuse to provide a jury trial for a citizen initiated legal action, like a civil suit by declining to hear the case.
I think you could find a similar framing for voting as well.
Sure, but having a place to live is not voluntary, everyone needs it.
Not making healthcare a “right” does not preclude having a government run health care system. Why would it?
Your comment is a great example for how people try to muddy the waters and distract from the issues at stake.
Healthcare requires resources, it doesn’t happen just because everyone agrees upon it. We must structure our society to provide those resources, so all its members can be provided healthcare.
Do corporations have a right to assembly what does that even mean?
Or do it's individuals have rights which under some circumstances make it seem like a corporation has rights?
Employees have a right to freedom of speech, so companies can make statements protected by the right to free speech.
I'm not sure to what extent there is one to be honest. We don't really have concerns around enforcing public nuisance statutes when someone is being a public nuisance. I think some cities still have (largely unenforced) laws on the books about fining you for swearing. We only really extend such actions protection if it's being done as part of a larger demonstration and, even then, people can get wrangled into "free speech zones" or ordered to disperse when the public safety situation gets out of hand. In practice it's difficult to imagine how protest would even work without some amount of individual right to political expression, but that's an operational need to actually have the collective right in place. Similar standards for the press and search and seizure or cruel and unusual punishment. I view the right to privacy in the same way, where it's hard to imagine how you can meaningfully have a free press or protection from search and seizure or even due process without some acknowledged guard-rails around making sure government actions have a compelling public interest. I just don't see something analogous with firearms.
With firearms it actually is easier to imagine much less scope for an individual right because of the "well-regulated militia" clause.
> I’m willing to entertain the view that our whole incorporation doctrine is non-sensical, but that cuts more broadly than I think most gun control advocates would like to go. Moreover, the notion that the 14th amendment was meant to apply the second amendment to states is far better supported than the incorporation of the first amendment.
It is a awkward kludge to be sure. But at the time the second amendment was more-or-less an after-thought because of how the structure of the military evolved and the way the Civil War put a lot of constitutional "questions" to rest about how far the states' rights go. I really just don't think they imagined people in the future would extend the argument beyond all reason to assert that any person should have access to any level of firepower at their whim without any public interest in curtailing it. That's plainly absurd and the only reason we even accept it today is because big swathes of the country are in the grip of some crime-wave paranoia mingled with Red Dawn fantasies being stoked by the media.
And like I mentioned with the right to protest, we still do put up some guardrails around it in the name of public safety despite the general understanding of the right, which is why I'm generally against complete bans of firearms. But I think our understanding of what that 2nd amendment right actually means needs to be anchored to some idea of what these things are for. What is their purpose and what value do they provide to civil society or for enabling people to freely pursue life, liberty, and happiness? From that standpoint I can see wanting to permit access to tools for reasonable self-defense or sport/hunting uses. But you don't really need most of the tacticool gear that people worry about for that. I'm not even sure most people even really need a handgun for that. Right now, it seems like what the most vocal 2nd amendment advocacy organizations think they're for is to menace government officials and engage in acts of terrorism and insurrection. I do not believe this is a view compatible with having a civilized country or a functioning government.
A right is something that can never be legally violated by the government.
It is possible for a health care system run by anyone to end up with a level of resources below what it would need to meet its commitments.
If government runs health care and health care is a right, then the government is not legally allowed to fail to meet its health care commitments. Doing so would violate the right to health care, and violating rights is illegal.
Therefore at that point the government must either compel resources be increased to match the commitment, regardless of any other factors, or cancel the right.
If our plan includes the potential for raising resources to an arbitrary level in certain circumstances regardless of all other factors at that point, then at that point we would by definition need to implement forced labor.
If our plan includes canceling a right under certain circumstances, then it is not really a right, is it?
However just because children have the right to go to school doesn't mean they're forced to actually go and sit down (eg Wisconsin v Yoder). The courts do recognize that parents have the rights to force their kids to do certain things. Eg you can ground your child and it isn't "forced confinement", you can make them go to school and it isn't slavery, etc. Those exemptions pretty much go away once someone turns 18
Perhaps you'd like to sign a petition to lower forced labor fed by high false-conviction rates in Louisiana? https://promiseofjustice.org/end-plantation-prisons
Americans do not have a “right” to education in the same way they have a “right” to e.g. free speech. The government can reduce or even eliminate state funded education without violating the constitution. If not enough e.g. teachers will work for the state (for the pay offered, based on tax revenue available, etc), the state can respond to changing circumstances by reducing or eliminating the education services provided. If education were to be added as a “right” then this reduction or elimination in service would not possible, unless you make that “right” so flimsy as to be basically meaningless (i.e. if the government is able to meaningfully remove it, it is not really a right).
I don’t believe in forced prison labor at all, so yes I’d be happy to sign that petition. I’m not sure what it has to do with this discussion.
Federally, no, they don’t.
They may have a State Constitutional right, though.
The government can easily change what public school is offered and the courts aren’t going to intervene and say “no, you have to provide K-12 education as guaranteed by the Constitution”.
A toxic political culture can lead a government to sabotage things it's legally required to provide. That said, that same toxic culture can also lead it to violate negative rights. The real problem isn't the distinction between different classes of rights, but the fact that one political party is eager to destroy or at least compromise those rights.
OTOH, they do have a right to trial by jury, a right to counsel, and a right to vote in the sense that they have a right to free speech, and each of these rights require someone else’s labor.