Rights Not To

I’m currently working on a paper that explores the possibility of a Second Amendment right not to keep or bear arms in self-defense. If such a right exists, it might call into question the constitutionality of various laws that make it difficult or impossible for people to keep guns out of their homes, off their property, or otherwise out of their constructive possession. But in writing the paper, I’ve been struggling with a broader question: When and why is a constitutional right to do something accompanied by a constitutional right not to do that thing?

Various parts of the Constitution protect a “freedom” or a “right to” engage in a particular activity — to speak, exercise religion, or keep and bear arms, for example. But if a person chooses not to engage in that activity, or to engage in some variant thereof, it is not always clear whether his decision is constitutionally protected. The Court has made it clear that “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Singer v. United States, 380 U.S. 24, 34-35 (1965). Thus the right to a speedy trial does not guarantee the right to a slow one — it is a take-it-or-leave-it style right. And yet sometimes one can insist on the “opposite of [a] right”: The First Amendment protects the right to speak and the right not to (see, e.g., Barnette and Wooley), the right to associate and the right not to (see, e.g., Dale), and so on.

Is there a good way to explain these “rights not to”? One answer might be that for some rights, the “opposite” of the protected activity is effectively the same as the “primary” activity itself. That is, speech and silence are both forms of communication, which is the real focus of the First Amendment’s protections. This answer strikes me as plausible, but maybe a bit too easy — it basically means playing around with definitions in order to avoid the question. A second possibility would be to focus on the text of the Constitution, and argue that “freedom of speech” encompasses both speech and silence, while a “right to” implies a take-it-or-leave-it approach. This also seems plausible, though its utility would be fairly limited. Yet another answer could be that in order to determine whether a right carries with it a right not to, one must first know something about the purpose of the right. If the right serves some “public” value, then perhaps one cannot insist on its opposite (the Thirteenth Amendment comes to mind), whereas rights that are designed to create some sphere of individual autonomy (the First Amendment, at least arguably) do extend constitutional protection to the decision not to engage in the enumerated activity — speech, the exercise of religion, or perhaps the keeping and bearing of arms.

Those are just a few possible approaches; I’m sure there are others, and I’d love to hear them.

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27 Responses

  1. Very interesting idea and wrinkle on the Second Amendment.

    Your summary views the amendments in the Bill of Rights as right-conferring. That is, the First Amendment confers the right to freedom of speech, religion, etc. The Second Amendment, confers the right to keep and bear arms.

    But, I think the text of the Amendments, and the history of the BOR, tell a different story. The amendments place limitations on what the government can do. Congress “shall make no law,” the right to keep and bear arms “shall not be infringed,” etc. These rights are pre-existing, and the BOR was ratified to prevent these rights from being infringed. The Heller majority recognized the Second Amendment as codifying a pre-existing right to keep and bear arms, not as conferring this right.

    This may tweak a bit your view of the “right not to.”

  2. Joseph Blocher says:

    I see your point, Josh; I’ll have to give it some more thought. My initial reaction is that the question of “rights not to” persists whether or not rights were created or codified in the Bill of Rights. If the rights enumerated in the Bill of Rights pre-date the Amendments, then I suppose one would have to look to pre-constitutional history to see whether there was some pre-existing right not to speak, not to bear arms, not to exercise religion, or what have you.

    One other possible wrinkle that your post brings to mind is the Matt Adler “Rights Against Rules” argument – that is, that the focus should be on what kinds of rules the Constitution prevents, not on the “personal” rights of litigants. That, too, requires a bit more thought.

  3. Ron Collins says:

    First Amendment right to speak
    Fifth Amend right to remain silent

    First Amendment right to public assembly
    14th Amendment right to privacy

  4. Constructive possession? How hard do you think it is to refrain from picking up a gun, anyway? Even assuming there’s a right to NOT keep and bear, (Dubious, in light of the 2nd amendment’s militia elements.) it’s hard to see how it could ever involve requiring somebody else to refrain from exercising the right themselves.

  5. Anonymous Coward says:

    Also keep in mind that a ‘right not to bear arms’ would apparently have to invalidate the draft, or at least the draft with respect to combat roles.

  6. Leif Rakur says:

    The right to keep and bear arms is a right to engage in an activity. If we are talking about individual rights, it is hard for me to see how exercising a right not to engage in an activity would differ from simply choosing not to exercise the right in the first place. Resolving the conflicting rights of others who may be impacted by the exercise of a given right is a separate matter. It’s all an interesting line of thought.

    If a right is the right of the people in the aggregate, I can see how some of the individuals associated with that aggregate might have a right not to participate. An example might be the exemption of men “scrupulous of bearing arms” in Madison’s original draft of the Second Amendment.

  7. “If such a right exists, it might call into question the constitutionality of various laws that make it difficult or impossible for people to keep guns out of their homes, off their property, or otherwise out of their constructive possession.”

    Joseph is looking for a constitutional approach to limit the scope of concealed carry laws, I would guess. However, the key to doing that isn’t to extend the 2nd amendment to a right to not keep and bear, (Very dubious in light of the militia language.) and then include ‘constructive’ possession as keeping. The key is to simply take property rights, which have historically included the right of a property owner to exclude people from their property for any arbitrary reason, seriously. If you don’t have the right to be in a place, you don’t have the right to be there armed. QED

    Of course, the serious question exists as to whether a property owner, in insisting that people on his or her property be defenseless, thereby becomes liable for any harms they suffer that they might have otherwise defended themselves against if not for the owner’s dictate.

  8. Joseph Blocher says:

    Ron – Good point; some (but not all) “rights not to” have semi-analogues elsewhere in the Constitution. The analogies aren’t perfect – the right not to speak is broader than the right not to remain silent, and so on – but I like the textual hook.

    Brett – It might not be hard to avoid bearing (i.e., carrying) a gun, but how about “keeping” one? If a gun is being “kept” for Second Amendment purposes when it’s stored in my attic or basement, then it doesn’t have to be in my immediate possession to be covered by the right. The right not to bear arms would play out similarly, I think. I’m not sure how the right would play out as a practical matter, but it’s possible to imagine a few applications, at least. And I agree that the the “militia elements” of the Second Amendment complicate the issue, but I don’t know what to make of those elements in light of Heller, which says (rightly or wrongly) that the “core” and “central component” of the Second Amendment is personal self-defense. Finally, as to your last point – a right not to bear arms would, like almost all other rights, be directed at state action.

    AC – Good point, but I don’t think that a right not to bear arms would invalidate the draft any more than the First Amendment does. Compelled military service impacts a whole host of constitutional rights, but isn’t invalidated by any of them.

    Leif – The difference I’m trying to get at is whether a person can in some sense be *compelled* to engage in the activity. Choosing not to speak isn’t the same as having a right to stay silent – the kids in Barnette were punished for the former, which is why the Court established the latter. And I like your point about exempting one’s self from the aggregate, but how does that (or the conscientious objector exemptions) play out after Heller’s establishment of the “individual” right to bear arms?

    Brett2 – Actually, what I initially had in mind were laws requiring people to have guns in their homes (e.g., the famous Kennesaw law) and those forbidding businesses from banning guns on their property. Concealed carry laws are an interesting example as well, though they’re more of an incidental burden on any right not to bear than they are a direct regulation of it. If the right not to keep or bear arms exists – I understand your skepticism – what do you think about the former two examples?

  9. Ken Rhodes says:

    Perhaps the key to untangling this web is in the first reply, by Josh. Viz., specifically, the text. Instead of generalizing to hypothetical opposites and contrapositives, we could read what it says and assume that’s what it means.

    Too simplistic, I suppose, but nevertheless appealing to me.

  10. I think it’s pretty clear that the 2nd amendment was understood to be entirely comparable with forcing people to own, and even train with, firearms. The same people who ratified it were backing a militia system, participation in which was NOT voluntary. Rather, the 2nd amendment was expected to safeguard the militia system by ensuring an armed populace even if the government wanted to discontinue having a militia, from which a militia could be raised in an emergency anyway. Madison’s “but no person religiously scrupulous of bearing arms” language was rejected, after all, that pretty much settles the matter of a negative 2nd amendment right.

    So, while I don’t really support the Kennesaw law as a matter of policy, its constitutional grounding is remarkably firm.

    I wouldn’t say the same of laws requiring businesses to admit people carrying guns; The are a rather radical violation of the traditional understanding of the nature of property rights, and the Bill of Rights does guarantee property rights, even if the ACLU isn’t too concerned with them.

    OTOH, if that traditional conception of property rights is to be rejected in the context of one civil right, it damned well better be rejected in the context of all of them, let’s have no second class amendments.

  11. S.M. Abeles says:


    Interesting topic. But I think you may be getting a little tied in knots because your analysis cordons off a key aspect on the inquiry whenever one considers what the government can or cannot do.

    Your piece focuses on rights, and then their inverse, when it would be more logical to also examine the other (other) side of the coin, the powers vested in government. So when you ask whether there is a “right” not to bear arms, you should be looking at, or also at, whether the government is empowered to force you to bear arms. I haven’t looked at the cases you cite in some time, but I suspect you’ll find that, for example, Dale is not so much about an inverse right not to associate but rather a limitation on government’s power to force associations. Indeed, if you look at the speech cases and association cases one step more broadly– not as protecting the right to speak, and the right to association, but rather as the right to free speech and free association, then one never needs to identify an inverse right at all. Rather, what you identify as inverse cases are simply cases that recognize that government’s power is limited when it infringes the spheres in which speech and association take place.

    Close with a quick example. Suppose there was a textual right to free health care in the Constitution. If the government then passed a law compelling all Americans to purchase healthcare, the proper inquiry would still be whether Congress is empowered under the Commerce Clause to enact such a law. Plumbing the hypothetical health care right for an inverse right would needlessly complicate the inquiry, and, again, tie the inquisitor in knots.

  12. Jacob Larson says:

    There’s a constitutional right to access FDA approved drugs (as a liberty interest), yet the D.C. Circuit ruled that there’s not a constitutional right to access non-FDA approved drugs.

  13. Corin says:

    I think the confusion happens depending on where you put the word “not” in the sentence. Is the inverse of the 1st amendment the right not to speak or is it the right not to have the freedom of speech – which are two very different things.

    I would look at inverse rights for where they can be directly inferred from the right itself. The Dormant Commerce Clause is directly inferred from the right of Congress to act under the Commerce Clause. The right not to speak is directly inferred from the word “freedom” in the 1st amendment, that is the right to choose whether to speak. However the right not to have freedom of speech would not be able to be directly inferred since it would directly counter the freedom guaranteed in the amendment.

    As far as the second amendment – I agree with Josh’s argument about the language “shall not be infringed” as limiting the inverse. However you could apply the right not to have a gun as an individual sphere of personal liberty as mentioned above. In that case you have the traditional conflict between the rights of two individuals. In the concealed carry context that would be when does my right not to constructively possess guns (like in a store) run into your right to have a gun for self-defense. In that instance the right with a direct textual hook will probably outweigh the inferred right.

    Under that logic inverse rights (those directly inferred) exist unless they come into direct conflict with another exercising their express rights.

  14. Joseph Blocher says:

    Thanks to everyone for the continuing engagement with this question!

    Brett – I appreciate the focus on the “militia elements” of the Second Amendment. But I’m still not sure how they jibe with what the Court has identified as the “core” and “central component” of the Second Amendment: self-defense, particularly in the home. *If* not having guns in the home either enables or is an act of self-defense, wouldn’t that “core” right trump the militia elements?

    S.M. – It’s certainly true that any exercise of government power must be justified, but I don’t think that principle is what’s behind Barnette, Wooley, and Dale, and unfortunately I don’t think it loosens the knots into which I’ve tied myself. A law compelling people to bear arms would be justified as an exercise of the same government powers as laws limiting the right to bear arms, right? And even if gun control laws don’t strike you as constitutional exercises of Congress’s power (because they fall short of the Commerce power or whatever), they surely fall within the police power of states, which, after all, do most of the regulating.

    Corin – I think you’re on to something, but I’m still confused. What do you mean about inverse rights “being inferred from the right itself”? If the right to keep arms is a right of self-defense in the home, can you “infer” a right to keep guns out of the home in the name of personal safety? Or does your approach depend on text—i.e., that a “freedom” implies a negative right, while a “right to” (as in the Second Amendment) does not? As far as the conflict of rights between individuals is concerned, I think the question would come down to whose right has been limited by state action. As Brett put it earlier, I don’t infringe anyone’s Second Amendment rights if I kick them out of my house for bearing a gun, nor would I infringe anyone’s right *not* to keep arms if I were to bear my own gun into his home. The issue arises only where the government has weighed in on one side or the other.

  15. S.M. Abeles says:

    I probably should have hewed towards my instinct when I noted the cited cases weren’t fresh for me. But I still believe the inquiry is stilted. Perhaps it’s because the “rights not to” invoked are more coincidental than a part of some proper mode of constitutional analysis. By that I mean that the right to remain silent seems inherently intertwined with the right to speak, as does the right not to associate. Stated another way, if the First Amendment was not so eloquent, and explicitly included these inverse rights, I don’t believe there would be much or any substantive impact on our bank of freedoms. In contrast, the “right” not to bear arms is not inherently intertwined with the right to bear arms, any more than the “right” to engage in involuntary servitude, the “right” to a non-speedy trial, or the “right” to waive equal protection are inherently intertwined with their opposite.

  16. S.M. Abeles says:

    Perhaps the best way to look at it is that a primary right necessarily contains it’s inverse if the absence of the inverse right makes the primary right less effective. For example, one’s right to freely associate with whomever one pleases would be weakened if the state could order it’s citizens to join a political party. In contrast, one’s right to bear arms wouldn’t be injured absent a right not to bear arms, any more than one’s right to a speedy trial would be injured absent a right to a slow one.

  17. “Brett – I appreciate the focus on the “militia elements” of the Second Amendment. But I’m still not sure how they jibe with what the Court has identified as the “core” and “central component” of the Second Amendment: self-defense, particularly in the home. *If* not having guns in the home either enables or is an act of self-defense, wouldn’t that “core” right trump the militia elements?”

    The militia element of the 2nd amendment is, of course, not going to jibe very well with the Heller decision. That’s because the Heller decision essentially tossed the 2nd amendment that Madison wrote, a right to, as Tench Coxe put it, “Their swords, and every other terrible implement of the soldier,” and replaced it with a right to own such arms as didn’t make the government feel uncomfortable. A politically correct rewriting of the amendment which was as historically fraudulent as anything the minority wanted to perpetrate.

    Madison’s 2nd amendment was a right to own military arms such as soldiers were commonly equipped with, so that it would always be possible to raise a militia from a population already suitably armed and familiar with those arms. From that perspective, a right to not be armed was almost nonsensical; How would THAT advance a well regulated militia?

  18. Joseph Blocher says:

    Brett – I think we’re in agreement, for the most part. I’m proceeding from the premise that Heller (rightly or wrongly) establishes a “core” right to personal self-defense. But if the Second Amendment were about protecting state militias or the general militia from disarmament, then I think the answer to your question is just as obvious as you imply.

    S.M. – We’re definitely in agreement as to method: I think that the answer must lie somewhere in the relationship between what you call the “inverse” and the “primary” right. In the particular context of the Second Amendment, I think what matters is how you define the primary right. As Brett points out, if the Amendment is about militias, then non-bearing and non-keeping don’t seem intertwined with the “primary” right. But if it’s a right to self-defense in the home, and people believe (again, rightly or wrongly) that their homes are safer without guns, then isn’t being forced to keep or bear a gun an equal infringement?

  19. “then isn’t being forced to keep or bear a gun an equal infringement?”

    Indeed, so long as we’re talking actual keeping and bearing, and not this “constructive” version, where you’re actually ascribing somebody else’s exercise of the right to the person asserting the right not to exercise it.

  20. Shag from Brookline says:

    Is there such a thing as constitutional laches? This brings to mind Sandy Levinson’s “The Embarrassing Second Amendment.” To what extent has the militia, as conceived in the Second Amendment, been in disuse? Can it be revived? The Heller decision was not centered upon the introductory militia clause. Has a person the constitutional right not to exercise self-defense? If so, some of us may have to keep and bear arms to protect that person. Oh, I forgot, we now have police forces to do that.

  21. Actually, we don’t. There’s a long line of legal decisions denying the police have any obligation to protect any particular person, or, indeed, anybody AT ALL. They’re there to enforce the law, a purpose which has only an occasional connection with protecting people, and which often runs opposite that purpose.

  22. Shag from Brookline says:

    A police force acts as a deterrent. It’s not perfect, but there are many whom police end up defending and protecting. Such forces did not exist back in 1789. Is there an inference in Brett’s comment that perhaps a police force is not vital to our society? And perhaps he could provide some cites for the long line of legal decisions referenced, especially more recent ones that might provide a background.

  23. For instance, Castle Rock v. Gonzales. Or DeShaney v. Winnebago County….

    My implication is that the function of the police is to enforce the will of the executive and legislature. If their will is to protect the people, they’ll protect the people. If their will is to prey upon the people, they’ll prey upon the people.

    In general, and in the case of the US, it’s a mixture of both. Quite a bit of protecting takes place. So does a fair degree of predation. But it’s still the case that we don’t have police to protect. We have them to enforce the law, which is only about protecting the people in the ideal case.

  24. Shag from Brookline says:

    The links to Wikipedia provided by Brett were most interesting, including references to dissents and critiques. If, in each case, protection had been provided, would that have provided fodder to the NRA that that protection was an inappropriate use of taxpayer funds? I noted in an earlier comment that policing is not perfect. Often parties claiming rights are determined not to have legal standing to sue the police or other government officials. But policing can and has provided meaningful protection. Is anarchy a preferable alternative because of the Second Amendment right to keep and bear arms? There is no doubt that police cannot provide protection 24/7 to everybody who may be unlawfully threatened, but police presence continues to act as a deterrent.

    But I’m curious about Brett’s comment on “a fair degree of predation” by police.

  25. Well, Shag, leaving aside extra-legal predation by police, (Which is by no means a non-issue.) I’d point to things like the Columbia university condemnations. Fat lot of protection those property owners got…

    My point is simply that the police don’t exist to protect us; They exist to enforce the government’s will. Sometimes the government desires to protect us. Sometimes, it’s desires are quite the contrary.

    The police exist to enforce the law. That only contingently involves protecting anybody.

  26. Shag from Brookline says:

    How is the Columbia U. situation involved with policing? Is there criminality involved? If that is claimed, a cite please.

    When a mob forms, police clearly and directly protect people and property. There are too many examples to enumerate. (Granted, sometimes this is done poorly, as was the case down South during the 1960s and in New Orleans during Katrina.)

  27. How are the police not involved with Columbia kicking those people off their property? There WILL be ‘criminality’ involved if any of them refuse to vacate. The police serve as Columbia’s goon squad in this regard.

    If you think I’m denying police ever protect anybody, you’re not paying attention. I’m just saying they only protect people insofar as that’s what the government wants done. And that’s NOT the only thing the government wants done.