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Commentary on the Bill of Rights.As the United States government continues its war against the nation created in 1779, it has become all too obvious that many Americans, although they will talk about the Bill of Rights, remain unclear as to what it says and what it means. Partly that is due to endless government and corporate media spin, and partly because the language spoken in this nation has changed so much from the time of the writing of the Constitution to the present day, that many people are confused as to what was actually intended. On the occasion of the New York Times publishing an op-ed calling for the abandonment of the Constitution and the Bill of Rights, I offer some clarification.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Founding fathers saw how religion, blended with civil power, led to abuses of the people. The disagreement between the Catholics and Protestants, expressed through the armies of rival factions, had almost destroyed the British Empire. The Founding Fathers understood that their very new and still fragile nation would not survive any internal religious wars. Many colonists had come to the New World to escape religious intolerance, and the Founding Fathers understood that the only way to guarantee religious freedom for all was to deny civil power to all religions. That is the meaning of "Congress shall make no law respecting an establishment of religion" although it is often misquoted by church leaders as "Congress shall make no law regarding an establishment of religion" as justification for favorable tax practices. What this provision of the First Amendment meant was that no one religion would receive preferential treatment over any other. There would be no official state religion of the new nation.
"All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit." -- Thomas Paine
"I do not find in orthodox Christianity one redeeming feature." -- Thomas Jefferson
"The government of the United States is not, in any sense, founded on the Christian religion." -- John Adams
"Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the 'wall of separation between church and state,' therefore, is absolutely essential in a free society." -- Thomas Jefferson
"The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries." -- James Madison
The provision of the First Amendment regarding free speech and a free press was intended not to protect lies, as many politicians and media like to proclaim. Lies do not need protection, nor should lies be protected. The First Amendment protection for freedom of speech and the press was to protect the truth from those in power for whom the truth was a threat, to protect the truth from those who would rule by lies and deceptions.
The provision of the First Amendment regarding the right to peacefully assemble and petition the government for redress of grievances was intended to guarantee that when We The People spoke, the government would be forced to listen. And while the government might not choose to respond to the grievances, the First Amendment denies them the ability to pretend the grievances do not exist. This provision was based on the British government's practice of banning public protests, in order to pretend that their subjects were happy and content, because nobody spoke out.
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.
In the days when this amendment was written, the militia meant every adult able to bear arms. The militia was not the regular army. The term "regulated" was not a legal term at that time, but a mechanical one. A regulator was any mechanical device used to make something work better. A spin-ball governor was used to "regulate" the speed of a steam engine, as one example. A "Well Regulated" militia meant a militia with all the proper equipment needed to do their job better. That meant good weapons with good sights. After all, what use is a militia if they cannot hit what they are aiming at? And note that the word used is "arms". Not just "firearms", but "arms", meaning every possible weapon that might be used in a military confrontation between the government and the people.
The Second Amendment is not about target shooting or hunting. At the time, hunting was indispensable for survival in the new nation, especially when food crops were unavailable. To deprive the people of their hunting weapons was to condemn them to death by starvation in the winter months. Military commanders of the time viewed hunting weapons as off limits. When Lieutenant Colonel George Monro surrendered Fort William Henry to Major General Louis-Joseph de Montcalm during the French and Indian Wars, the civilian militia serving the British were allowed to take their weapons with them when they left. When the British marched on Concord, triggering the Battles of Lexington and Concord and the start of the American Revolution, it was to seize military arms, not hunting weapons.
By the very inclusion of the terms "militia", "security", and "free state" it is clear that the Second Amendment is referring to military arms. The Founding Fathers understood that it was only because the people had been in possession of military arms that they were able to resist the economic enslavement of King George's Currency Act, created under pressure from the then-private central Bank of England. Absent those arms in the hands of the people, the banker-imposed poverty would have continued indefinitely.
"The refusal of King George 3rd to allow the colonies to operate an honest money system, which freed the ordinary man from the clutches of the money manipulators, was probably the prime cause of the revolution." -- Benjamin Franklin, Founding Father
The Founding Fathers, while acknowledging the need for some form of government, knew all too well from thousands of years of human history that government is not automatically the friend of the governed, and had to be kept under tight control.
"Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action." -- George Washington, in a speech of January 7, 1790
Following the Revolution, the Founding Fathers created a nation with power and authority reserved to the people. In order to avoid despotic rule, the government was broken into three separate parts, so that the natural tendency for government to seek more power would be turned against itself and not the people. Strict limits were imposed on the government itself, to keep the government the servant of the people.
"The legitimate object of government is to do for a community of people whatever they need to have done, but cannot do it all on their separate and individual capacities." -- Abraham Lincoln (1809-1865)
The Founding Fathers included the Second Amendment because they understood that any system of government is only as good as the people who are in that government. They understood that political power attracts the very sort of people who should never be allowed to have it. And they understood that no matter how limited government was at its creation, over time all governments tend towards oligarchy, cease to be the servant of the people, and seek to become the masters.
"While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny." - Rev. Nicholas Collin, Fayetteville Gazette (N.C.), October 12, 1789
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." (Thomas Jefferson Papers p. 334, 1950)
In short, the Second Amendment is not about hunting or target shooting. It is and was ever intended to be about protecting We The People from the government of the United States.
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.
As public sentiment against the massive poverty created by the imposition of King George III's Currency Act (which ordered the colonies to transact all commerce using only bank notes borrowed at interest from the Bank of England, the British began ordering colonial leaders to provide rooms for British soldiers in their homes. This was not done because of a lack of accommodations. There was ample open land for forts and military camps. The quartering of British soldiers in the private homes was so that everything spoken of inside the home was known to the British occupying forces. By keeping a watchful eye on the colonial leaders, the British military commanders hoped to deter the growing revolutionary fever.
In looking at that intent behind the quartering of troops, it is clear that we have arrived at much the same situation today with e-mail scanning, warrantless phone intercepts, and other forms of remote surveillance. Yet the object is exactly the same; to make known to the government what is being talked of in private homes and communications, and to instill a fear in the people to speak out against abuse.
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.
This amendment was created by the Founding Fathers as a response to the British practice of random searches of homes, businesses, and persons, again as an attempt to terrorize the colonists into silence and inaction as the Currency Act looted the profit of their labors for the Bank of England. The intention of the Fourth Amendment was to prevent the government from entering your home, place of business, or searching your person simply because they wanted to, or as part of a general campaign of intimidation. Evidence of actual wrong-doing, and not just disagreement with the government, had to be presented by the police to the courts, for a warrant for such invasion to be granted. Although neither the telegraph or telephone existed at the time the Fourth Amendment was ratified, under the 9th Amendment, 4th Amendment protections extend to new technologies. In the present day that includes computers and cell phones, although the government, attempting to justify the NSA spying on all Americans takes the position they do not.
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.
The Fifth Amendment bundled together several restrictions, again arising out of the abuses of the British occupying forces.
The Grand Jury was created so that ambitious politicians could not hurl baseless charges at their opponents as political weapons. The exemption for times of war was a pragmatic one, but in the hindsight of abuses such as Abu Ghraib and Guantanamo, imprudent.
The provision against being charged and tried for the same offence twice was, like the Grand Jury, a device to keep prosecutors from simply charging the accused repeatedly until they ran out of money and could no longer defend themselves in court; a popular tool of repression under British rule of the time.
The provision forbidding the accused from being forced to be a witness against himself is a carry forward from the Magna Carta. One may wonder why the Founding Fathers felt they needed to reiterate such a basic understanding of civilized law, but the Founding Fathers were well aware that neither the British nobles nor King John had abided by the Magna Carta after it was signed. The tortures of the inquisition had yielded a great many false but convenient confessions, and the tortures used to extract confessions from the accused Salem witches was for them a fresh memory (and another reason for the First Amendment prohibition against an official state religion).
The provision barring the government from simply taking the property of the people without compensation was yet another response to British practice leading up to the start of the Revolution. The Due Process clause was intended to limit the government's ability to confiscate the wealth of the people by requiring that all three branches of the government first agree that such action was necessary, legal, and justified.
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 defence.
The Sixth Amendment was intended to prevent the government from the practice of the "Star Chamber"; of going through the illusion of a proceeding to justify an already decided outcome. This Amendment was intended to bias the legal system fully in favor of the private citizen against ambitious prosecutors and politicians who would arrange false accusations and show trials to mask what amounted to political (and sometimes real) assassination. It was common practice in Europe to mask a real agenda behind a manufactured accusation, as Philip IV had used accusations of heresy to murder the Templars with the real agenda of erasing his debts to them.
The right to a trial by jury was intended to prevent conviction by political pressure; to remove from the courts the ability to wrongfully convict an innocent party because of political expediency. This too had been a common tactic for the British occupying forces to use against the colonial leaders, to imprison and stigmatize those who spoke out against the abuse of power.
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 re-examined in any Court of the United States, than according to the rules of the common law.
The Seventh Amendment was intended to remove from the government the arbitrary ability to inflict civil damages based on political expediency. Under British rule, when attempts to imprison colonial leaders failed, it was another common tactic to bring a civil suit against the person, relying on the British judges to impose fines and settlements designed to ruin the victim and end their ability to speak out. By empowering a jury of peers to make such decisions, the civil court system was again biased in favor of ordinary Americans.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment was added in case the two previous Amendments failed to protect Americans from politically manipulated courts. It guarantees that if found guilty of a crime, that the punishment musty be proportional to the severity of the crime, and no more. The provision regarding cruel and unusual punishments was in response to the British Practice of intentionally horrific punishments, such as hanging, drawing, and quartering, as a means to terrorize the public into obedience.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This is one of the most important Amendments, yet one of the most overlooked. This Amendment makes it clear that the people have additional rights over and above those enumerated here, and that the non-inclusion in the Constitution cannot be used as an argument denying those rights. This Amendment was added by the Founding Fathers who were well aware that the future would bring changes to the world which they could neither predict nor prepare for. Among their own members was Ben Franklin, whose own discoveries and inventions made it clear the world was changing in unpredictable ways. The Ninth Amendment makes it clear that the people would need and automatically enjoy additional rights that arose as the nation grew, and that the government was not allowed to deny the people basic rights simply because new methods of communication and industry were developed. This, it can be argued that the current government's insistence that electronic mail not enjoy the same Constitutional protections as paper mail is a clear violation of the 9th Amendment.
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.
The Tenth Amendment is very explicit in constraining the government to their authorities as set forth in the Constitution. Unlike the Ninth Amendment, which grants presumption of additional rights to the people, the Tenth Amendment strictly limits the authority of the US Government to those powers and authorities enumerated in the Constitution. Simply put, if an authority is not in the Constitution, the government may not presume or arrogate that additional authority to itself. Again, the intention of the Founding Fathers was to design a system of governance that would hold in check the natural tendencies of those in government to expand their authority and control at the expense of the people.
The Constitution is the original contract with America. It's purpose is not only to tell the government what it may do but to make clear what it may not do. The government created by the Founding Fathers is legal and legitimate only when it operates inside those limits imposed by We The People in that document. The Founding Fathers understood that government will not, of its own accord, constrain itself to the rules, and left it up to We The People to enforce that contract, by force if need be, granting us the right to keep and bear military arms equal to those of the standing army should it ever become necessary to do so.