Just Words, Part 2

Okay, on with the Bill of Rights. Thanks for your patience.

The second amendment is the one best-known to all conservatives, at least by it’s abbreviated name. They may have a hard time naming any of the other amendments, but if you say “What’s the second amendment?” they’ll almost always answer “RIGHT TO BEAR ARMS, BABY! HOO-AH!” Or something like that.

Personally, I prefer the right to bare breasts. But I digress.

But what does the amendment ACTUALLY say? It DOESN’T say “you have the unlimited right to bear arms”. What it DOES say is “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.”

First off, to anyone who thinks that this amendment guarantees you the unregulated right to own any gun at any time, I will point out the phrase WELL REGULATED to you. Gun control is built right into the amendment. The founding fathers didn’t want nutjobs running around with whatever the 18th century equivalent of AK-47’s any more than we do.

Next, a little history lesson.

The founding fathers did not want America to have a standing army. It was state militias who secured our freedom from the British and state militias who battled each other in the war between the states. George Washington spoke eloquently of the danger of having a federally-controlled army turned against the government’s subjects, like they were against him and his co-conspirators in revolution.

So why are we guaranteed the right to bear arms? Well, for the sake of a militia, as the act states, of course. Also because King George DENIED American colonials the right once it became clear that revolt was in the air. What did that mean to the colonists? In a time when there were no centralized police agencies, it meant that they couldn’t protect their homes and families. In a time when, if you wanted meat, you went out and killed something that they couldn’t kill anything.

And by the way… a quick note to conservative alarmists… NO PRESIDENT HAS EVER TRIED TO TAKE AWAY YOUR RIGHT TO BEAR ARMS, AND NONE EVER WILL. IT WOULD TAKE AN ACT OF CONGRESS TO AMEND THE CONSTITUTION, AND THEY AREN’T GOING TO DO THAT! They may take away your assault rifle, and God bless ‘em for that. You want pistols, even hand-cannons? Great. Personally, I’m partial to the Israeli Arms Desert Eagle air-cooled .44. Fired that baby once – amazing. I won’t rest until I have one. Shotguns and rifles for hunting? No problem. You want something that fires a hundred and fifty rounds per minute? Too bad. It serves no purpose other than killing a lot of people very quickly and you don’t need it. On a side note, both of our last two Democratic presidents (Clinton and Carter) were country boys, hunters, and card-carrying members of the NRA. I think that Obama isn’t, but that’s okay, too.

The third amendment says “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” Fairly self-explanatory, and solid as houses. So far as I know, no president has ever tried to violate this one.

The fourth amendment reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, no representative of the government can enter your home or search your belongings without a very specific search warrant, authorized by a court. The Bush administration has freely flouted this amendment, mostly because too many Americans do not realize how important it is or what it means.

This has grown more complex in the electronic age. Do these rights extend to telephone conversations? E-mails? Internet searches? I would say that these things fall into the category of “papers and effects”, but the point is, as the Bush administration has shown, debatable.

The fifth amendment reads “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This is another amendment freely disregarded by the Bush administration. Where is the due process that the people in Guantanamo were supposed to get? Personally, I think that the fact that the Bush administration HASN’T given these people due process means that they don’t really think that they’ve got a case. Secret prisons where people are swept away to in the middle of the night without a Grand Jury indictment or due process is a problem, folks. “They can be locked up indefinitely because I say so” is a very, very scary proposition in a supposedly free society.

Probably the two best-known clauses of this are the double jeopardy clause and the self-incrimination clause. These mean basically that if you’ve been acquitted of a crime you can’t be tried again for the same crime and that you can’t be forced in court to provide testimony that will incriminate you. Whenever someone “pleads the fifth”, it’s a pretty safe bet that they’ve done something wrong. But famously in America, you are innocent until proven guilty, so even if you plead the fifth, the state still has to provide evidence of your guilt before you can be lawfully convicted.

The sixth amendment says “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Again, completely disregarded by the Bush administration.

The seventh amendment states “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” Again, fairly self-explanatory I think, and again, according to the Bush administration, non-existent.

According to the eighth amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” You know… like water-boarding, or threatening with dogs, or being smeared with menstrual blood… ALL of which have been done to the people interred in Guantanamo. The Bush administrations “out” on this? “Well some punishments may be cruel… and some may be unusual… but none are cruel AND unusual.” Riiiiiiiiight.

The ninth amendment is where they start getting a little murkier. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, nothing in the Constitution can be used as an excuse to take other rights away from you. Trust me – this is deep. Scholars have been arguing over this one for two hundred years. My take on this amendment and the tenth is that they are kind of cover-alls. The founders wanted us to have almost unlimited liberty, constrained within a reasonable legal system.

The last amendment was proposed by the slave-holding states, afraid that the non-slave-holding states would use the Constitution to come in and take away their slaves. It says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, any power not given to the federal government by the Constitution EXPRESSLY would be up to the states to enforce.

Okay, Americans. Those are your rights. Know them. Live them. Fight for them.

Peace.

Randal