The Right Not To Exercise a Right (?)

The Right Not To Exercise a Right (?)

An important distinction in law must be drawn between rights and obligations. While related concepts, they are not identical.

I have, for example, the right to speak my mind, free of government censorship in all but a very limited set of situations. That’s enshrined in the First Amendment to the U.S. Constitution, which says in part, “Congress shall make no law . . . abridging the freedom of speech.”

I do not, however, have an obligation or duty to speak my mind. Under certain circumstances, I may have a duty to tell the truth about events (as in when I am giving sworn testimony), but in most cases, my opinion is not something I must share.

The prohibition on a law abridging freedom of speech must be understood not only to protect my right to say what I wish, but my right not to say anything at all. Indeed, the Fifth Amendment enshrines that right in the protection against compulsory self-incrimination in the specific case of criminal prosecution. If we cannot be compelled to tell the truth about our wrongful acts, surely we cannot be compelled to speak when there isn’t even an allegation that we have done anything wrong!

My silence may have certain costs that I may choose to accept rather than speak. Job opportunities may slip away, the love for which my life was meant may wander off never knowing of my passion, and other, more boisterous customers may jump ahead of me in line, because I choose not to speak.

The government, however, may not punish me for silence, nor deny me protections to which I am otherwise entitled.

What is true of the freedom of speech is true of other constitutional rights as well, such as the right to bear arms. At least, I think it is.

The Second Amendment has, in recent years and for the first time in Supreme Court history, been interpreted to grant an individual right to “keep and bear Arms.” Until recently, the right declared by the Second Amendment was understood as a societal right of communities to protect themselves, as communities, through the possession of weapons for collective self-defense (putting emphasis on the reference to “A well regulated Militia” with which the amendment begins). That might mean that individuals had a right to have an “Arm” in their own homes, but that right hinged on its relationship to collective defense (community “armories” existed as early as colonial times).

The Heller decision changed that standard, reading in the history of our nation and the language of the amendment an individual right to “keep and bear Arms” independent of the role of such arms in collective defense. Part of that argument involved the notion of self-protection, the right to be able to protect oneself and one’s property by force of arms if necessary.

One can have a lively debate about the historical and legal foundations of that individual right, as the justices themselves did. But it is the interpretation of the Second Amendment that has the force of law today.

The right “to keep and bear Arms,” Justice Scalia wrote in the majority opinion, is not without limit. Indeed, restrictions on who has the right to keep and bear arms, what kinds of arms, and where and how they can be born, all seem clearly to fall within the boundaries of the legitimate exercise of government power with regard to the right to bear arms, even in a post-Heller world.

But can the government require a citizen to exercise that right? Can a government mandate that citizens keep and bear arms?

Some governments have . . . more or less.

Stay tuned.

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