More on State’s Rights


Clay Conrad commented here on my post about State’s Rights. Clay questions my statement that “rights cannot be maintained using force:” “if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?”

I’m not sure Clay is wrong, but I think he and I have different things in mind. I may have spoken inartfully.

Using my mugger-and-granny analogy, if Granny is better armed and better prepared than the mugger, she has the power to assert her right to keep her purse. Clay would say that she is maintaining her right through violence.

But whether Granny has the power or not, she still has the right to keep her purse. So she doesn’t maintain the right using force; even if she has no remedy, she still has the right.

(An aside: I see the Second Amendment as an effort by the founders to make sure that the people have a remedy when the government makes concerted efforts to deprive them of life, liberty, and the pursuit of happiness.)

Compare Granny’s right to hold onto her purse to the people’s right to a jury trial in a criminal case: the right exists even if the people can’t use force to assert it.

Contrast that with the State’s “right” to a jury trial in a criminal case. If the State weren’t supported by violence, there would be no criminal cases, no prisons, and no criminal jury trials. The State’s power to force an accused to have a jury trial (instead of pleading guilty to a judge) is purely a creation of the state; like all such creations it would crumble if the State did not have a near-monopoly on physical force.

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