The development of legal rights in the american legal system
| Autor | Roberto Rosas |
| Cargo | Instructor of Law, St. Mary's University School of Law, San Antonio, Texas |
| Páginas | 277-309 |
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IURIS TANTUM NO. 26 2015-2016
THE DEVELOPMENT OF LEGAL RIGHTS IN THE
AMERICAN LEGAL SYSTEM
42ROBERTO ROSAS*
ABSTRACT
This article takes a snapshot of some of the most controversial topics in Ameri-
can society today and the juridical response to these topics by individual states,
the United States Congress, and the United States Supreme Court. Although there
are numerous legal topics that deserve mention and analysis, this article is lim-
ited to the discussion of nine fairly new rights created by state and federal laws.
The rights discussed in this article include the following: 1) The right to open
civil unions between same-sex couples; 4) The right to privacy in relation to
sexual offender residential information; 5) The right to the protection of victims
right to privacy in relation to unsolicited telemarketing telephone calls; 8) The
right to determine what medical treatment to receive and the right to organ do-
-
dresses the topics of sexual and racial discrimination. Finally, the most far-
reaching decisions handed down by the United States Supreme Court between
2013 and the present are discussed.
Recibido 21/01/16 Aprobado: 18/08/16
* Instructor of Law, St. Mary’s University School of Law, San Antonio, Texas. Prof. Rosas is the recipient of
the Distinguished Faculty Award 2013 from the St. Mary’s University Alumni Association. He received his
J.D. from the Universidad de Guadalajara in Mexico where he also previously obtained the degree of Electri-
cal Mechanic Engineer. Postgraduate studies: Harvard Graduate School of Business, University of Massachu-
setts at Amherst, and Oxford Center for Management Studies. Prof. Rosas also studied graduate courses on
comparative law of Mexico and the United States as well as canon law. He is a Doctor of Juridical Science
(J.S.D.) at the Universidad Europea de Madrid. He has also been a professor of law at the Universidad de
Guadalajara from which he graduated at the top of his class. Prof. Rosas is the author of numerous law review
articles published in countries of the Americas, Africa, Asia, Europe and Oceania. He was elected president
of the Commission on Legal Affairs for the Advisory Council of the Institute of Mexicans Abroad (2003-2008
and 2009-2011).
The author would like to thank Research Assistants, Rolando Arguelles, Andrea Diaz, Melissa N. Lozano and
Miriam Olivares for their valuable research input.
278 IURIS TANTUM NO. 26 2015-2016
I. INTRODUCTION
Currently, the United States recognizes an extensive variety of individual
rights. Although many are already recognized, the government can consider it
necessary to create additional rights to conform to society’s evolving characteristics
and to protect their citizens. Although new rights are usually derived from pre-
viously established rights they still allow society to continue making progress.
There are two general categories of rights that are recognized in the United
States: natural and non-natural rights. Under the category of natural rights there
is a right to life, a right to liberty and a right to property; from these three rights
many other recognized rights are derived. For example, the right against depriva-
tion of one’s life and the right against suffering abuse and injury are derived from
the right to life. From the right of liberty are derived such rights as the right to
free expression and the right to bear arms. The right to reside in a decent home
is derived from the right to property.1
Non-natural rights are divided into two general categories: rights of the
person and citizenship rights. Non-natural rights of the person include the right
to contract and the right to due process of the laws for those individuals who are
subjected to criminal prosecution. Among other rights non-natural citizenship
rights include the right to vote and to be elected, and the right to the enforcement
of these rights.2
In addition, universal rights exist that are recognized internationally and have
been adopted by the United Nations (UN) in several treaties, conventions and
declarations.3 -
blishing and protecting certain human rights at a global level. The Universal
Declaration of Human Rights approved by the UN is based on the recognition of
throughout the world. The second addresses religious freedom. The third is the
right to obtain economic security for one’s development and well-being. The
fourth is the right to be free from fear or apprehension. This article will address
the fairly new legal rights that have been recognized in the past years.
II. THE RIGHT TO OPEN CARRY A FIREARM
Over the past recent years, gun control has been a controversial topic that
has rocked the United State’s core. With mass shootings on the rise, there is a
national drive to reduce gun violence.4 The Second Amendment of the Constitu-
1 See, Summary of Constitutional Rights, Powers and Duties, http://www.constitution.org/powright.txt, acces-
sed September 21, 2014.
2 See, Summary of Constitutional Rights, Powers and Duties, http://www.constitution.org/powright.txt, acces-
sed September 21, 2014.
3 See, The United Nations Fight for the Four Freedoms: The Rights of All Men-Everywhere, https://archive.
org/details/TheUnitedNationsFightForTheFourFreedoms_728, accessed September 18, 2014.
4 See, Duva, Nicholas. “Gun Laws Vary State By State.” CNBC.com. http://www.cnbc.com/2014/11/20/gun-
laws-vary-state-by-state-cnbc-explains.html, accessed January 2016.
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IURIS TANTUM NO. 26 2015-2016
tion, which allows the right to bear arms, is an important issue at the moment.
Gun activists and gun control groups have been consistently lobbying to Congress
to create legislation in their favor.5
United States: open carry and concealed carry. In the United States, there is no
federal law that establishes the issuance of concealed or open-carry permits; such
state differs on whether they allow open carry or concealed carry. “Open carry”
6
In the past, concealed carry had been the default law amongst most states.
There are three categories into which state concealed carry laws can be divided:
(1) “may issue,” which means that the permit to conceal carry will be issued on
and (3) “unrestricted,” which means there is no permit required.7 For unrestricted
states, there are state laws stating where it is and is not allowed to enter with a
concealed gun.8
In recent years, the practice of open carry has seen a substantial increase in
the United States. As of today, there is no federal law that restricts or allows the
open carrying of handguns in public.9 The term “open carry” refers to the law that
allows concealed handgun license holders to display a holstered handgun in plain
sight as they go about their daily activities. Open carry laws differ widely from
state to state. As of 2015, twenty-seven states permit open carry without requiring
restrictions, and eight states prohibit open carry.10
allowing the open carrying of handguns are: (1) open carry is a visible deterrent
to crime and (2) open carry provides quicker access than concealed carry does.11
One main issue that open carry laws have to face is whether the right to
carry reason that their states are now safer because thieves are less likely to en-
gage in criminal activity against a person who is armed. Researcher Gary Kleck
found that 92 percent of criminal attacks are deterred when a gun is merely
5 See, “Gun Control And Gun Rights.” USNews.com. http://www.usnews.com/topics/subjects/gun-control-and-
gun-rights, accessed January 2016.
6 See, Duva, Nicholas. “Gun Laws Vary State By State.” CNBC.com. http://www.cnbc.com/2014/11/20/gun-
laws-vary-state-by-state-cnbc-explains.html, accessed January 2016.
7 See, Id.
8 See, Id.
9 See, “Why ‘Open Carry’ Law Works”. http://www.usnews.com/opinion/articles/2010/04/15/why-open-carry-
gun-laws-work, accessed January 2016.
10 See, Law Center to Prevent Gun Violence – Gun Law Information Experts. http://smartgunlaws.org/open-
carrying-policy-summary/, accessed January 2016.
11 See, Pratt, Larry. “Open Carry Deters Crime.” USNews.com. http://www.usnews.com/debate-club/should-
people-be-allowed-to-carry-guns-openly/open-carry-deters-crime, accessed January 2016.
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