Natural law provides very clear answers on the gun rights versus gun control debate. But natural law, as it is invoked in USA's declaration of independence, requires accepting the existence of God, so natural law cannot be taught in American public schools. As a result, 99.9% of Americans on both 'sides' of the gun debate have opinions of the derived constitution that are very flawed. Here is a primer on natural law, and how it applies to gun liberties.
This article is the first part of a 4-year series, concluding with "Reasons and Results behind NRA's Marketing Methods" (Yofiel, 2018) on this site.
As stated in "The New 2nd Amendment Loophole" (Yofiel, December 2015), the majority of the arguments about constitutional rights are based on common-sense views. There I tried to reason with common sense: "people who are shot to death lose their rights to life, liberty, and the pursuit of happiness, let alone their right to bear arms."
Some people objected that is not a legal statement, to which I replied "it violates of natural rights, which therefore transcends constitutional rights and provides resolution on otherwise irresolvable conflict. To object to that is to deny the authority of the United States to define a constitution in the first place. But on the other hand, at least natural rights assure that the government won't take away everyone's guns."
1. Natural Rights in the Declaration of Independence
Then I discovered the theory of natural rights, as it existed when the Constitution was framed, is not taught in public schools, because it is based on the existence of God. So I have written a primer, AFTER which one may be interested in a deeper discussion (for example, "Taking the framers seriously," William Michael Treanor,Georgetown University Law Center, 1988). In summary, while there are a couple of historians who have claimed otherwise than the views expressed here, they are very much in the minority fringe. This primer describes the establishment view. It has now been reviewed by half a dozen historians and philosophers with PhDs. Additions from their comments are indented, with a bold 'note' at the beginning.
1.1. InalienabilityFirst, natural rights are of higher order than legal rights because they are inalienable:
Natural and legal rights are two types of rights. Legal rights are those bestowed onto a person by a given legal system. (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal andinalienable (i.e., rights that cannot be repealed or restrained by human laws).
- "Natural and Legal Rights,"Wikipedia (2015)
Before America's declaration of independence, the British had violated natural law. For example, in the Boston Tea Party (1773), citizens objected to sending England tea to put in teacups, because there hadn't been any British effort to provide city drinking water at all: That's why Jefferson started the declaration like this:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which theLaws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, thatall men are created equal, that they are endowed by their Creator withcertain unalienable Rights, that among these areLife, Liberty and the pursuit of Happiness."
- "Declaration of Independence" (1776).
1.2. Natural Rights of IndividualsWith respect to rights of individuals, America's concepts of natural rights arose from a member of the Western empirical tradition of philosophy called John Locke (1632-1704 AD):
Locke believed thatnatural rights were inalienable, and..The Lockean concept of the social contract was invoked in the United States Declaration of Independence.
("Social Contract,"Wikipedia, 2015).
Here, I can only provide a summary lacking in detail, because Locke's full argument is far more sophisticated and beautiful in form than I could do proper justice. Overall, Locke's work is 9 volumes and >230,000 words. The majority of this argument is in "On Power" (Essay on Human Understanding, Book 2, Chapter 21,John Locke, 1689), but it should not be considered out of context of Locke's other work, expecially "Second Treatise of Government," (John Locke, 1689-1763). The following diagram shows Locke's hierarchy of concepts, from which the natural rights of American citizens are derived.
- Note: You could know other versions of "natural rights," but the one on which America's social contract is built derives from Locke's version, which is much more sophisticated than most. This is because Locke derives all natural rights from an empirical system of metaphysics, defining that which can be known by a process of cumulative reason, rather than by intuition. Other approaches to natural rights are usually based on intuition alone. So if you are already familiar with other versions of natural rights, please bear in mind that Locke's version, not others, is the basis of this nation's constitutional law.
Locke derives natural rights via rational deductions, based on the fundamental experiential and biological conditions of pluralist existence, as follows.
EqualityFirst, Locke argued, each individual is endowed by the power of WILL, to choose one action over another; by which our souls are formed, which in divine judgment may know joy or suffering, depending on how our choices affect the lives of others. For that reason, the premise of natural law is "All are Created Equal in the Eyes of God." Including God in the premise is necessary to the formulation of natural law in the US constitution, as I will explain.
LifeLocke's argument continues that this power of will, endowed to all, is without purpose in and of itself. If there were no more than the power of free will, we would remain unmoving, as rocks and stones, seeking neither change nor progress nor civilization. So God, in his infinite wisdom, gave us, through the LAWS OF NATURE, hunger and thirst. For, as each day these needs must be satisfied, these needs create the appetite from which all other human happiness flows. Therefore LIFE IS THE PRIMARY NATURAL RIGHT, which is a right to our simplest biological requirements--Our needs for water, food, sanitation, health, shelter, and family.
LibertyBecause of hunger and thirst, there is a perpetual UNEASINESS OF THE SOUL, whence springs DESIRE. To each person, desire is different, for whatever reason of nature or nurture it may be, it does not matter. Each person's unique desire cannot be defined or predicted by any other person, but is only known to each of us ourselves individually. Therefore we require LIBERTY to choose the satisfaction of our desires for ourselves. And that is the basis of the social contract. Within the social contract, each person may seek more or less, through effort of work, to obtain as much, or as little, or in whatever way each person finds best, fulfillment of desire. And so from necessity of hunger and thirst, LAWS must grant liberty to choose how the soul, in its uneasiness, is fulfilled in different ways for each one separately, which thus defines LIBERTY IS A NECESSARY BUT SECONDARY NATURAL RIGHT.
Pursuit of HappinessLiberty is not of the same order of importance as the natural right to life, but still a natural right whence pleasure results, in the course of each person seeking to fulfill their own desires. The satisfaction of hunger and thirst creates PLEASURE--a simple happiness of the first order. But for true happiness, we cannot consider our own pleasure alone, but also the needs and desires for others. Locke's argument, which is the basis of the American constitution, is that happiness is illusory if we do not account for others in the actions of our own will, by acting for THE GREATER GOOD. Because of the needs of others, we sometimes need to suspend our own desires--a fact for which Locke is, if anything, apologetic. But Locke also explains that we actually discover greater liberty in pursing the greater good, because it frees us from living only for our own desires:
"THE NECESSITY OF PURSUING TRUE HAPPINESS is the Foundation of Liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty. The stronger ties we have to an unalterable pursuit of happiness in general, which is our greatest good, and which, as such, our desires always follow, the more are we free from any necessary determination of our will to any particular action, and from a necessary compliance with our desire, set upon any particular, and then appearing preferable good, till we have duly examined whether it has a tendency to, or be inconsistent with, our real happiness: and therefore, till we are as much informed upon this inquiry as the weight of the matter, and the nature of the case demands, we are, by the necessity of preferring and pursuing true happiness as our greatest good, obliged to suspend the satisfaction of our desires in particular cases."
- "Essay on Human Understanding: on Power, Book 2, Chapter 21, section 52,"John Locke (1689).
Therefore PURSUIT OF HAPPINESS IS THE TERTIARY NATURAL RIGHT because, in pursuingtrue happiness, we act not simply for ourselves, but for the greater good, which results in the product of our noble society. On this basis, individuals are entitled, first, to state-supplied education, and second, to property. But individuals can only pursue happiness insofar as it does not interfere with the life and liberty. Moreover, in order that God may judge us in our treatment of others, our acts for the greater good cannot be forced against the will of an individual, except in as much as necessary to maintain the social contract.
Locke tried very hard to find a way of defining "pursuit of happiness" without including a need for God to judge our actions, but he couldn't quite do it. So the United States decided that pursuit of happiness is a natural right to its citizens, and therefore the declaration of independence is UNDER THE LAW OF GOD. But other countries do not acknowledge God in their constitutions, and therefore the modern statement statement of natural rights, as HUMAN RIGHTS in the United Nations, does not include pursuit of happiness for all. Pursuit of happiness is a unique natural right to the United States, because the nation was formed under God. And that is why the pledge of allegiance is an oath under God (some want God removed from the oath of allegiance, but if it were removed, the natural rights under the constitution would be broken).
- Note: Those familiar with natural law sometimes state that existence of God is not necessary to it. And in fact this has become a very big problem in America, because the social contract, as Locke defined it, assumed that PURSUIT OFTRUE HAPPINESS is acting for the greater good of all. As America has slowly removed God from the social contract, Locke's vision has started to break down. According to Locke, the very rich should look after the very poor, and according to the nation's natural rights, the rich cannot be forced to do so. But PURSUIT OF HAPPINESS is now mostly considered only a selfish motive in people's minds. The rich do not look after the poor, but instead seek influence and money only for themselves, also manipulating legislature to reduce their own taxes. So an undue proportion of welfare now falls into the tax burden of the lower and middle classes.
In Treatises on Government, Locke himself named 'life, liberty, and property' as the three natural rights. But the framers intended the government to provide more civil liberties than would be possible under 'property' alone, in particular education. This is because Locke believed knowledge is gained from experience, not known intuitively. Therefore to understand Locke, one needs an education. However, the natural rights Locke defined do not justify the state taking taxes to pay for an education. But in order for people to be able to learn that true happiness is gained from living for the greater good, which is necessary for the social contract to succeed, all people must have education. Therefore it has to be state supplied.
Jefferson campaigned to have state-supplied education added as constitutional right too, although he believed free education beyond elementary-school level is only worthwhile for the better students (see "Jeffersion and education,"Wikipedia). Due to budgetary issues at the time, education was not included in the Bill of Rights, and state-supplied education ended up becoming a reality much later.
1.3. Limits of Self-Evident TruthOther framers, mostly not having the education granted Franklin and Jefferson, found Locke's long chain of thought too complex to follow. Yet even those without education in philosophy felt the ideas could be SELF EVIDENT from intuition. One framer, Thomas Paine, was a follower of the Scottish school of philosophy called NAIVE REALISM, which stated all things could be understood via intuition. Mr. Paine wrote this himself ("Common Sense,"Thomas Paine, 1776), and the majority of other members in the first congress felt self-evident intuition was sufficient. Hence, in the writing of the declaration of independence, natural law was assumed as self explanatory, even though Mr. Locke himself did not agree with that notion: "no man's knowledge can go beyond his experience" (Essay on Human Understanding, Book 2, Chapter 1, section 19).
So in fact, Locke thought through the social contract and natural rights of people first, using much more complex reason than summarized here. AFTER that, the naive realists said the conclusions from Locke's ideas were self evident.
- Note: Some try to argue that Locke's social contract is therefore no longer pertinent. But that line of thought has a basic problem. Without taking Locke's thought into account, the 'self-evident' rights could easily be anything else that appeals to common sense instead. For example, American rights could be based on 'freedom, equality, and fraternity," as was attempted in France ("Discours sur l'Organisation des Gardes Nationales,Robespierre 1790). But Robespierre's formulation was not based on the careful thought of Locke. Instead of being the solid basis of a new society, as Locke's social contract did in America, Robespierre's concept became no more than a motto, with continuing arguments over modifications to it for hundreds of years ("Liberté égalité, fraternité,"Wikipedia, 2016). Thus, while Locke's natural rights might appear self evident AFTER their statement, their formulation was based on careful reason, and not just simple common sense. From which, it is not unreasonable to consider the natural rights and social contract of Locke as the primary reason for America's great success as a nation.
Then the constitution itself was written which focused more on the formation of government authority. At that time, the framers still believed 'life, liberty, and the pursuit of happiness' were self evident and therefore sufficient. However, without the education in the school of Western empiricism, intuition alone could not define all the derived consequences of an individual's natural rights in an uncontentious manner. Over the next 15 years, many quarrels arose.
1.4. Derivation of an Individual's Constitutional RightsTherefore, the "Bill of Rights" was added to define specific entitlements of the people in a common-sensical way. At his point, there came into existence two separate sets of individual rights: natural rights, and constitutional rights, with the following crucial differentiation:
Constitutional rights, such as the 2nd Amendment, are revocable for those who break the Lockean social contract, either due to incapacity to keep the social contract, or due to its intentional violation.
At the time of formulating the Bill of Rights, there was fear of slave revolt, or invasion, or corrupted rule in Aristotelian terms. And so the 2nd amendment was included. As the 2nd amendment is actually in conflict with natural law, it is one of the few constitutional rights which has a condition, and so, the condition is VERY IMPORTANT.
The condition is that the 2nd amendment applies to the formation of a militia, to protect the freedom of the nation, and not intended to entitle an individual to any rights over those of natural law. The condition exists because the natural right to LIFE takes precedence over the natural right to LIBERTY.
- Note: The 2nd Amendment itself was originally not based on Locke's thought on personal liberties, but rather on Rousseau's ideas on the need of a proletariat to defend itself from a dictatorship, to which protection from slave revolt was annexed. Here I use the word 'proletariat' in the original Roman sense of referring to a citizen without voting rights (as the word originally meant) and not the suffrage of an uneducated populace without the ability to consider its best method of rule, as the word came to mean in communist doctrines.
THAT COMPLETES THE PRIMER on natural rights, to which a few more words will be said in the conclusion.
2. Resolving Constitutional Paradox on Gun Rights
Now the Lockean nature of natural rights can resolve paradoxes arising from the common-sense ideas in constitutional law. The framers had no way of being able to predict the paradoxes which would arise in later generations from their casting of common-sense rules for the less complex needs of their own era. Different experiences lead to different beliefs being intuitively true. So in the modern world, based on common sense, people with different experiences believe opposing views that appear obviously true to each side, and yet are irreconcilable with each other. For example, both sides of the right-to-life versus right-to-choice debate believe their side is intuitively correct from common sense. And the debates continue as long as one believes that the answer to such constitutional conflicts is only known through common sense.
2.1. Applying Natural Rights to Gun RightsIf one looks to the natural law underlying the declaration of independence, then the apparent constitutional conflicts resolve. In the case of weapons, it is very clear that the protection of the right to life, liberty, and the pursuit of happiness of those who would otherwise be shot is of greater precedence than the rights of those to own guns without permission checks. As the level of gun violence is now costing all American households $1400 a year, a tax to pay for gun violence is therefore also not unconstitutional, if it is designed in the utilitarian way here defined ("A Benthamite Solution to Gun Control,"Yofiel, 2015), not merely to reduce the burden of work on all to pay for the expense as the violence cost decreases, but more importantly, because it saves lives.
In fact, ANY law which saves lives by reasonable control of lethal weapons is justified, whether it is: better background checks to limit guns falling into the hands of minors; protecting the mentally unstable from hurting themselves; or, smart-weapons technologies so that children do not hurt themselves by mistake (which was blocked by the NRA for no possible good explanation at all). President Obama has picked these particular actions as being those which will most easily have the greatest impact with the least dispute.
2.2. The Social Contract and ViolenceThe above primer summarized the basis of THE INALIENABLE RIGHT TO LIFE, LIBERTY, and the PURSUIT OF HAPPINESS which some framers, including Franklin and Jefferson, understood so well from reading Locke. But it is still only part of natural law, because to make the individual rights possible, there must also be aSocial Contract, which empowers the government to restrict individual liberty and take taxes for the greater good, which is, to assure that all have natural rights.
This is because dissent and violence arise if the liberty of one person supersedes the natural right of life of another, for example. In astate of nature, there is no social contract providing authority to a government, and people then live in continual fear. That undesirable condition, previously noted by Hobbes, was a main incentive for Locke to seek something better ("The Leviathan,"Thomas Hobbes, 1668). But in Locke's social contract, natural rights to life still always take precedence over those of liberty, and liberty over the pursuit of happiness.
The purpose of the social contract is thus to defend the natural rights of all individuals. Those who violate natural law, for example by committing unnecessary violence for their own needs, are enemies of the social order. When conflicts arise, the proper response belongs to ELECTED administrators that impose force as little as possible, for which reason, the police are PEACE OFFICERS and under adjudication of the people through a democratic process modeled on Aristotle, and pretty much unchanged since he first formulated it 2,300 years ago.
Of course, Locke could acknowledge that sometimes the individual must act in self defense, when peace officers cannot intervene. But even so, the needs of a peaceful life of one person always takes precedence over those desiring violence for their own interests. Violence is at most an undesirable last recourse, forced by fear, which if of sad necessity, destroys the joy of social unity. Therefore any acts of self defense are also self destructive, to be avoided and minimized in every way possible.
- NOTE: Many who are involved in this debate are quick to seize on the natural rights basis to self defense. From Locke's perspective, any person who does so for selfish reasons, outside consideration of the greater good, is circumspect as likely to have other selfish ulterior motives, such as profit, or hiding a hidden agenda to obtain guns for crime.
2.3. Reinterpretations of LockeSince writing this a month ago, two pro-revolutionaries wrote me that I was wrong about Locke, and that he actually considers killing of individuals in self defense as a desirable part of the social contract. This was confusing, until the second one sent me this passage of Locke, which had been quoted out of context on a pro-2nd amendment site called Guncite ( and the complete discussion giving rise to the error is derived from the article "The Lockean right of self-defense and stand-your-ground laws,"Washington Post, 27 February 2014):
"[3-17] And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i.e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a foundation of all the rest; as he that in the state of society, would take away the freedom belonging to those of that society or commonwealth, must be supposed to design to take away from them every thing else, and so be looked on as in a state of war.
The problem of misconception arises because Locke wrote before the age of Twitter, and did not expect people to quote parts of his thoughts out of context. By omitting the following paragraph, the meaning of the above four paragraphs is totally changed (apparently the journalist at the Washington Post who discussed the above four paragraphs did not look it up and read the next paragraph):
"To avoid this state of war(wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men's putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power."
To explain, Locke's actual thesis is that this self defense in a 'State of War' comes into existence during the 'State of Nature,' and in fact replaces the 'State of Nature' in an unwanted manner, which was the reason for his design of the social contract in the first place. Before joining into social contract, an individual is either at peace (in a state of nature) or in fear (in a state of war), the latter of which is the purpose of the benign society, as envisioned by the framers, to avoid. This individual's 'state of war' only exists prior to accepting a social contract and designating a government to be responsible for protecting natural rights. AFTER accepting the social contract, Locke entirely delegates the use of force for personal self defense to authority.
So then, one may ask, when exactly does Locke's view permit an individual to take the responsibility of policing on himself, which as I have stated Locke would permit as a last recourse? The answer is, in fact, Locke never actually writes that an individual may so act, and I could produce no passage to prove it. But if one has read much of Locke, one knows he is a reasonable man, and if a person is reasonably unable to rely on the authorities to intervene, and if such a person is confronted with personal aggression and threat, then Locke would, probably, reasonably think that the person could act in self defense on their own behalf. However that is pure supposition on my own part, because Locke is not an unkind person. And from another perspective, the eagerness of those who act aggressively against others to procure any justification whatsoever for their malevolent intents,ipso facto, is the reason why Locke never himself wrote of permitting such action.
2.4. Reinterpretations of the 2nd AmendmentFirst, regarding the linguistics of the phrase "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.." Until 2008, this was thought to buy biconditional, that is, it allows bearing armsIF AND ONLY IF it is for to the formation of a militia. Some advocate that the phrase is not a conditional conjunction, for example quoting the Capperud and Schulman as linguistic experts (in order) to prove the claim. Capperud and Schulman made some admirable contributions to journalism and dictionaries by codifying a subset of the English language which is easily understood by people who have not finished high school, or for whom English is a second language. But they are not experts in enlightenment thinking, and probably never read a page of Western empirical philosophy in their lives.
In the 2008 'Heller' decision of the Supreme Court, it was decided for common law that while the 2nd amendment is conditional, it is not biconditional. That is, the operative phrase "the right to bear arms shall not be infringed" is not true if AND ONLY IF there is a need to form a well-regulated militia. In writings prior to the final bill of rights, there were some notes that citizens should ALSO have rights to bear arms for self defense, the details of which are way beyond this primer. Therefore, the Supreme Court's 2008 Heller decision clarified that the condition is not biconditional, and due to the three phrases in preparatory notes for the Bill of Rights, extended the 2nd Amendment to include rights to bear arms for self defense. It was not necessary, and in my opinion, that was a mistake, as it has already led to extreme militancy, even though it has only been in place for eight years. The right to self defense is far better defined by natural rights, which apply to all such hazardous possessions; that in reasonable conditions, they are permitted; but if any person demonstrates that their possession is a hazard to themselves or others, all rightful restrictions are not only justified, but necessary for the success of a benign society. However, for purposes of common law, such a definition is not sufficient, and the Supreme Court decided that codification of the right to bear arms for self defense should be constitutional.
2.5. Obama's view on Gun ControlAnd now with all the above information in mind, any person should be able to understand the President perfectly in saying he supports Americans having guns too. President Obama was a professor who taught constitutional law before he ran for office. So he not only understands natural law; it is deep in his soul. And the President knows that owning a gun is ALSO protected by natural law, as a liberty and as something enabling the pursuit of happiness--as long as it does not cause injury to other's lives, guns do not even need a constitutional amendment to protect that liberty.
But if one continues to fight gun control, and if one continues to deny the precedence of human life in natural rights, simply to uphold bearing arms by all regardless of mortal consequence, then the authority of the US government itself is forfeit. It was only the British violation of natural rights which justified this nation's separation from the United Kingdom. Without natural rights, the USA has no authority to write its own constitution in the first place.
3. Common Law, Legal Positivism, and Codification
The above discussion has described the natural law from which 'human law' or 'legislative law' (referred to as 'constitutional law' and 'common law' in the United States) is derived. From the perspective of an attorney in the business of exercising common law, natural law is in virtually all cases not something that the American lawyer could invoke in court. Therefore, American attorneys have an internal need to believe that common law is complete unto itself, and other approaches to legal definitions are redundant. They feel bound, by the proclivity of their own profession, to deny that natural law is the source from which common law sprung, transcends common law in mind, and provides the ideal method by which mindful judgment is made. If such an admission to ideology is made, the Statutes at Large (its temporal organization, seehttps://memory.loc.gov/ammem/amlaw/lwsl.html) and the United States Code (its categorical organization, seehttp://uscode.house.gov/) lose the notion of infallibility in required for its effective prosecution on the uninformed. Once so coveted in the necessary bookcase by the attorney's desk, all 4,000 pages of the US Code are free online, and on Kindle for $19.99.
So the fashion in America is now to pretend that common law is self sufficient unto itself. Nothing which has not been stated in the chapter and section is pertinent. Some contemporary legal philosophers, such as Hart, basically argue against the existence of any natural law at all, instead occupying a position oflegal positivism ("The Concept of Law,"H.L.A. Hart, Oxford University Press, 1961). The constitution itself simply becomes another form of legislative precedence, without any derivation from conceptualized ideals. By this perspective, attempts to define abstract derivation of law from metaphysical principles are doomed to failure, in the same way as any metaphysics is doomed from the perspective of early Wittgensteinian thought ("Tractatus Logico-Philosophicus," L. Wittgenstein, 1922). Legal positivism thus encounters the same problems with ethical meaningfulness, as the method reintroduces problems with Hume's fork--that which ought to be done cannot be determined purely from that which is:
"In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason."
"A Treatise of Human Nature," Book III, part I, section I,David Hume, 1739)
But the greater problem for the legal positivists, even while they make great contributions to society in providing an extensive codification of the consequences of wrongful action, is that the denial of transcendental understanding (whether through raw intuition, or through matured insights gained from internalized reason) removes the basis of authority on which the United States declared itself a nation, and does not provide solution on paradoxes in interpretation. The codification attempts to circumvent the problem by stating the authority derives from 'the people,' but it still cannot derive the moral right of an oligarchy to define an entirely new constitution without precedence, because codification can only rely on prior code for new definition.
From Locke's perspective, the real issue purely lies in the definition of that which consists ofreasonable law, and with the evolution of society, to assure that unreasonable laws can be removed, as well as new laws made; for to him, laws of all forms exist neither to protect us, nor to govern us, nor to restrict us, but only to free us for betterment of ourselves.
Locke was not concerned with codification of rights, nor enforcement of law, but rather the sensibility and, so often forgotten, the first and fundamental premise: thatthe purpose of civilization is not to benefit ourselves, but to free us to act for the greater good, that we may better be judged in the afterlife.
That was the burning force which the framers captured in the heart of this nation, in its brightest light making us strong and prosperous.
Yet in a fading twilight of doubt and scorn, we are falling into the fear and anger, which the design for our society only strove to eliminate. The solution is not more cynicism and hostility, but to rekindle the torch that made us great.
For which reason, one may well argue that the 2nd amendment itself could be removed, as ownership of arms is still part and parcel of natural law. On the other hand, the population of the United States has clearly demonstrated that is still not educated enough to understand the rationality of the social contract, and when faced with anything so drastic as removal of the right to defend against slave rebellion, rapidly reverts to a state of Hobbesian fear.
The conspiracy theorists angrily shout any such move as bold as removing the need to protect against slave rebellions is no more than a prelude to arms confiscation. Those who profit from the fear further promote the trepidations. The rich are the richer, the poor are the poorer, and the demands for violence and insurrection as social restitution grow the louder, while the destructive aggressors, brandishing rights like the weapons they adore, campaign to end our benign society, fostering hatred and war in the name of their own selfish interests, and nothing more.