The Amendments and other provisions of the US Constitution—even the original 10 Amendments of the “Bill of Rights”—were originally written in ink on pieces of paper with the concurrence of the men who agreed they should be there. They were not carved on stone by divine hand and handed down from a mountain top. That means that each or every one of them could be eliminated from the document by the same process if enough people agreed that they should be.

Eliminating an Amendment entirely would require the cumbersome process provided for by the Constitution itself, but that’s not the only way that what we have come to regard as “inalienable” rights could be profoundly changed. For example, the First states that no law shall be made that prohibits the free exercise of religion, but in fact there are many laws that restrict what people can do in the name of exercising their religions. Those restrictions have been upheld by various courts, and therefore demonstrate that despite the plain language of the Constitution itself, legislatures and courts can ignore its provisions when it suits them.

There is serious talk these days of repealing the Second Amendment entirely, and of course we should all be familiar with how our right to keep and bear arms has been infringed by legislatures and rule-makers and upheld by court decisions for over a century.

None of this is going to be news to anyone who has paid the slightest attention to constitutional law in this country, or even to those who have just been affected by the laws. Why, then, bring it up at all?

I contend that anyone who mentions the Constitution as the source of our “inalienable” rights is making a fundamental mistake: If the Constitution is the only thing that establishes our rights, then because the Constitution’s provisions can be changed or interpreted differently than they are now, then those “rights” would be no rights at all. “The First Amendment says …,” is fine as long as it says what we want it to, but if, for example, the Supreme Court were to rule that it doesn’t apply to speech that incites “hate” against certain groups, as is the law in many countries, that could change literally overnight.

And the point of all this preamble is that we should avoid making the mistake of hanging the fate of our rights on the laws of men, from the Constitution on down.

Some people believe that our fundamental rights were “endowed by our Creator,” and others of us believe we have certain rights because the “Laws of Nature”* give them to us as living beings. But regardless of the source of our rights, as a living creature, I have the right to preserve my life. As a distant relative of my wife stated it clearly in 1803, “The right of self defence is the first law of nature.” (St. George Tucker).

The inescapable consequence of that absolute right to defend myself is that I therefore have the absolute right to own and use the methods and tools that I require for effective protection against assaults on my life. To say I have the right of self-defense, but not the right to the weapons necessary for its effective exercise is like saying I have the right to freedom of the press, but that it is illegal to own a printing press, typewriter, computer printer, or anything similar. Without the right to keep and bear arms for the purpose, the “right” of self-defense would be nothing more than a meaningless phrase. That is truly a most fundamental right—perhaps the most fundamental of our rights—and not because I might be called upon to turn out to the village green to protect our powder and shot. It is an individual right, and not one that’s tied to the possible protection of anyone other than myself.

Freedom of conscience is also a fundamental right. It’s what most of the First Amendment is about, but like the right of self-defense, it’s not a right that’s contingent on the approval of others. I can believe what I want to believe and express my beliefs to others without governmental interference because being able to convince others to cooperate with me and to cooperate among ourselves is essential to our success as human beings. In addition, I may worship any god—or no gods at all—as my reason and conscience dictate because ultimately religious beliefs and all the other beliefs that determine how I live my life are fundamental to my survival, i.e., my right to life as a living being.

Judge Louis D. Brandeis pointed to another basic right: “[A]s against the Government, the right to be let alone is the most comprehensive of rights and the right most valued by civilized men.” That’s the basis of the Fourth Amendment’s protections against unreasonable searches and seizures, but it isn’t the Fourth that gives us the right to be left alone when we haven’t done anything to justify others’ interference with our lives.

Our Constitution has been the primary thing that has ensured that our rights in this country have been unmolested to the degree they have been for the last 230+ years, but to reiterate, we should not mistake its provisions as being where our rights originated or why we retain them to this day. If we say that our right to keep and bear arms for whatever reason is because of the existence of the Second Amendment, then we are saying that that right would disappear with its repeal. The same is true of our right to freedom of conscience, the right to be left alone by the rest of society, or the other rights mentioned in the Constitution.

If all that seems strange and contrary to what you’ve learned before, consider what the Constitution itself says in the Ninth Amendment about the rights it spells out: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” When inclusion of a Bill of Rights in the Constitution was being debated, some delegates believed that including an enumerated list would be a mistake because the belief would arise that if something, such as the right of self-defense, wasn’t included, it would be argued by some that it wasn’t really a right. They were correct, but we don’t have to be among those who support that argument.

None of this is intended to deny how important the Constitution has been to the Nation, or to claim that our rights wouldn’t have been curtailed more than they are without the legal protections that it provides (so far). I strongly believe, however, that gun owners in particular should stop saying that we think the Constitution is the reason we have rights. Rights are rights regardless of how they are ignored or infringed upon by others in power. We should understand and assert that fact whenever we can, and hopefully if enough of us do so, the message will spread and be understood and accepted by others who have given the matter little thought.

If you’ve never considered the fact that your rights exist regardless of whether the Constitution existed, give it some thought, and when you discuss our rights, do so with that fact in mind.
Who knows? Perhaps we will change some minds.

* Also from the Declaration of Independence: did you know that?

Thanks man... good points we all need to keep.

Yeah, That George Mason fella was on to something.

Great essay. Thank you.

An excellent analysis of rights both inalienable and given. Sadly I have discussed such with my contemporaries for over 50 years and due to my poor communications ability made poor progress in creating true understanding.