Some Of You Still Don’t Get It

Just fair warning, this one is a tad bit long, even for me.

My last article garnered a comment from someone I know that proves that I was right when I said that most people couldn’t name even five of the rights protected by the Bill of Rights. This person, who I won’t mention, but who knows who they are, said that I was nuts because we can still exercise all our rights. So I asked them to name five of the rights, just as the article said. The first thing they said was freedom of speech, followed by a long pause. So I prodded, what else? Then they blurted out I plead the fifth. To which I replied, you ought to before you make a bigger fool of yourself than you already have. Of course that didn’t go over too well, but it proved my point that most people CAN’T name the rights which our Founders felt were so important that they listed them individually in the Bill of Rights.

If people aren’t capable of telling you which rights the Founders specifically listed in the first ten amendments to the Constitution, how in the hell are they capable of telling you if they have been infringed upon? On top of that, I don’t think they understand, no matter how many times I have tried to explain it, what the word infringed really means. So let me try and make this as simple as I can.

Okay, say you have a television in your home. You can watch whatever you want, for as many hours a day as you want to, that is your right. Now say someone passes a law which says that you can no longer watch certain channels, or that you can only watch your TV for a certain number of hours every day. Your ability to exercise your right to watch whatever, and for how long, has been limited. That is infringement.
Although watching TV is not a right protected by the Bill of Rights, I think that SHOULD help explain what infringement means. Therefore, as that applies to those rights protected by the Bill of Rights, any law, ordinance, or code which LIMITS a person’s ability to exercise a specific right is an infringement, and has violated the Constitution.

It does not matter if 99.9% of the people support a law which limits, [infringes upon], a person’s ability do exercise one of the unalienable rights protected in the first ten amendments to the Constitution, such a law cannot legally be passed.

I know I have used this quote probably hundreds of times before, but I will keep doing so until you get it. In 1943 the Supreme Court, specifically Justice Robert Jackson, ruled, making it a legal precedent, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote’ they depend on the outcome of no elections.”

In his Second Treatise on Civil Government, John Locke argued that our fundamental, or natural rights, predates government, that is they have existed since man first walked the earth and that no form of government may interfere with them. In fact, Locke also argued that any government which does limit a person’s ability to freely exercise their rights loses all legitimacy. Locke wrote his treatise in 1690, long before the thought of independence ever crossed our Founders minds.

It was almost 100 years later that James Madison would write his Memorial and Remonstrance, in which he said, “The preservation of a free government requires not merely that the metes and bounds which separate each department of power be universally maintained but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers who are guilty of such an encroachment exceed the commission from which they derive their authority and are tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them and are slaves.”

This principle applies to government in general, be it federal, state, or local. Any governmental body which therefore passes any law which limits, in the slightest, a person’s ability to exercise ANY of their rights is therefore tyrannical.

Our liberty depends upon how freely we are able to exercise our rights without some law which limits our ability to do so. As Thomas Jefferson said in a letter to Francis Gilmer, in 1816, “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

So, as it seems that many people in this country do not even know what their rights are, and are therefore unaware that they are being infringed upon, Therefore it seems to have fallen upon my shoulders to enlighten these people as to how far their rights have been infringed upon.

Our rights are not granted us by the Bill of Rights, they are insured by it. That document merely states that these rights exist and that NOBODY can pass a law, or ordinance, which limits our ability to exercise them. Therefore, to explain how our rights have been in infringed, I felt it was best to go through the Bill of Rights, amendment, by amendment, and explain what they meant, and then, how that particular right has been limited.

The First Amendment lists 5 rights which it was intended to protect; the freedom of religion, freedom of speech, of the press, of the right of the people to peaceably assemble, and to petition their government for a redress of grievances.

As it is written, it says, “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.”

I guess the best way to do this is to take each right in the order they are mentioned in the Bill of Rights. So the first of these rights is the freedom of religion. It was NEVER intended that the First Amendment limit a person’s ability to worship as they please. This wall of separation between church and state comes from a letter written by Jefferson to the Danbury Baptists. This wall of separation that Jefferson mentions was to keep government from interfering in the affairs of the church, and the church from interfering in the affairs of government. It was in no way intended to limit the right of the people to worship as they please.

In the Supreme Court case of IAM v. Street (1961), the Court held that, “The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.”

A quarter century later, in the Supreme Court case of Texas vs. Johnson, the Court held, “If there is a bedrock principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

To limit a person from expressing themselves, be it through their speech, their ability to create what they consider to be art, or through their ability to read Scripture or pray, is censorship, and it was never intended that our government was to be allowed to censor the people in these areas. This does not simply apply to the government enacting laws, it also applies to how the courts ruled on these laws. As I have used before, in the case of West Virginia Board of Education vs. Barnette, Justice Robert Jackson ruled, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
In two landmark cases, Engel v. Vitale and Abington School District v. Schempp, the Supreme Court basically banned prayer in public schools. There are certain people, among them renowned atheist Michael Newdow, who have made it their personal crusade to see religion completely banned from outside the home and churches. For the most part the courts have ruled in the favor of these groups who say that for students to pray in a public school, funded by taxpayer dollars, violates that wall of church and state.

If a group of students, of their own volition, decide to pray before a ceremony or sporting event, it is their choice, not the schools. To deny them the right to do so is to censor them, and a violation of the First Amendment. It does not matter if by them praying you are offended, as upheld by Texas v. Johnson. The First Amendment does not protect your right to not be offended, if we take one step upon that slippery slope, where are we to end, when all speech is restricted because it offends?

Which leads us to the next right protected by the First Amendment, the freedom of speech. Do the phrases hate speech and thought crimes ring a bell? If freedom of speech, a byproduct of thought, be banned by legislation, how can they say that we have full freedom of speech? Listen, there will always be people who hate, you can’t legislate it away. By making certain words, phrases, or even thoughts, a crime, you have, however, infringed upon a person’s right to freely speak, which IS protected by the First Amendment. For a person to speak openly of their hatred for something should NOT be a crime. However, if they take action based upon their beliefs, that is a different story, as then they would be guilty of violating another’s rights.

I will not spend much time on freedom of the press because that is another subject which I have previously written on. Let it be enough to say that our press has been bought up and is controlled by the same people who control our government. So while we do not have too many clear cut violations of the freedom of the press by government, we do have a biased and controlled press which only tells us what certain people want us to hear.

Next up is freedom to assemble. Look at the word freedom, what are the first four letters? Free, that is freedom, when you have freedom to do something, it is FREE. Now tell me, when you need to obtain a permit to hold an assembly, and that permit costs you, or is granted at the discretion of some bureaucrat, can you honestly say you are free to assemble? What about laws which make it illegal to protest within so many feet of the president, as did HR 347. Under HR 347 it becomes illegal to protest on any grounds which are ‘restricted in conjunction with an event designated as a special event of national significance.’

So, all the government, or Secret Service for that matter, has to do is declare a rally, and this could be a campaign rally, or any other speech given by any government official, as an event of national significance, and the people would be banned from assembling in protest.

And finally, what about the freedom to petition the government for redress of grievances? Have you tried petitioning them? How about writing them to voice your concerns over an issue? What have you gotten in response? Most of the times I get form letters, probably sent out by some intern or low level staffer whose job it is to answer the mail of the representative they work for. Do you honestly think the person you write ever sees your letters? If anything, all that is happening is a file is being created for you and your name is being added to some sort of watch list as a potential trouble maker, or terrorist threat. Does this sound like a government who listens to, and cares about what the people they represent has to say? Not unless of course it is pleas for help or more governmental micromanagement of our lives. Then they are more than willing to oblige. But if you protest ANY of their actions, you are ignored, even if you provide irrefutable evidence that those actions have violated the Constitution.

So, in my opinion, the First Amendment is dead, no longer protected by government. So, let’s now move on to the Second Amendment, which states, “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.”

When asked, most people will tell you that we still have the militia as described in the Constitution, in the form of the National Guard. But, is that what the Founders meant, and is that what the law says? Title 10, Section 311 of the United States Code says the following about the militia:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are-
(1) the organized militia, which consists of the National Guard and the Naval militia
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or Naval militia.

So, there we have it, there are TWO categories of militia, and one of them is composed of members of society who ARE NOT members of the National Guard. As Founding Father Tenche Coxe once said in an article in the Pennsylvania Gazette in 1788, “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
In the time of our nation’s war for independence, who was it that first rallied to halt the British confiscation of arms at Lexington and Concord? It was the militia, organized of simple men responding to threats posed, not by external forces, but threats against their rights by their government. Although it may sound treasonous now, that is the purpose of the militia, to protect the people in the enjoyment of their liberty from threats posed by government. If you don’t believe me, just read what Alexander Hamilton said in Federalist 29, “…that standing army can never be formidable (threatening) to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in the use of arms.”

To once again quote Tenche Coxe, “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”

Yet I don’t need mention how many laws have been written which prohibit us from owning and carrying arms publicly. As I have said, if a right is limited in any way, it has been infringed, and it matters not if the courts uphold the law, it is a violation of our rights. You can argue otherwise, but the facts state that it is our right to own weapons, with no mention of any limits as to the type, number of rounds fired, or whether they be single shot, semi-automatic, or fully automatic weapons as such carried by a standing army. So yes, our Second Amendment is well under way to being completely annihilated by government.

The Third Amendment remains pretty much intact, as it 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.”

Now the Fourth Amendment, that is a different story altogether, as it has come under unrelenting attack, especially after the events of 9/11. The Fourth Amendment states, “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.”

The Fourth Amendment was written, in part, to guarantee the right of privacy to the people when it comes to searches of their persons, their property, and their homes. In 1780 Massachusetts enacted its own Declaration of Rights. Article XIV of that document states, “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.”

In 1914, the Supreme Court, in the case of Weeks v. United States, ruled, “In Adams v. New York, this court said that the 4th Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law, acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it. To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”

Ever since George W. Bush declared his war on terror, the Fourth Amendment has come under vicious attack. Beginning with the passage of the Patriot Act, the growth of Homeland Security and the expansion of powers granted the TSA, our rights, as protected by the Fourth Amendment have basically been erased.

You don’t believe me, try boarding a plane without passing through some sort of scan or body search, then ask them to see the warrant stating probable cause for them searching you. Under the war on terror every American is a suspect and that is reasonable cause enough for the agencies of the government to invade the privacy of your person, your home, and your belongings.

On top of this, the ATF has been known to provide falsified data to obtain a warrant, and then invade the home of persons suspected of violating gun laws, confiscate all their records and firearms, and only later is it discovered that the warrant was issued under false pretenses.
So you tell me, do we still enjoy the protection of our right to privacy as outlined by the Fourth Amendment, or has it also fallen by the wayside?

The Fifth Amendment to the Constitution states, “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 amendment covers way too much to be covered in one article alone, so I will confine my talks to the very last part, “… 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.”
As I mentioned in the discussion of the Fourth Amendment, how many times have agencies such as the ATF raided a person’s home and confiscated their records, their computers, their guns, without due process of law and without compensation? Too many times for me to count. And does GITMO mean anything to you, or the NDAA, the fact that your government may now declare YOU to be a terrorist, or a threat, and indefinitely detain you without trial and without your right of habeas corpus?

You think mass detentions wont’ happen really need to look back no further to World War II when American citizens of Japanese descent where incarcerated because our government feared they were loyal to Japan and not America. History can, and does have a habit of repeating itself and that is why we have the Fifth Amendment.

So, just from what I’ve seen, the Fifth Amendment has also come under attack and the rights it protects are not as secure as they were supposed to be. We’re not doing too good are we? Halfway through the Bill of Rights and only one Amendment seems to be intact.
The Sixth Amendment states, “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.”

In his Commentaries on the Laws of England, Sir William Blackstone writes, “Upon these accounts the trial by jury even has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must reafer to the ensuing book of these commentaries: only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.”
Furthermore, John Jay, who was to become our first Chief Justice of the Supreme Court, once wrote, “The cause of America is now the object of universal attention: it has at length become very serious. This unhappy country has not only been oppressed, but abused and misrepresented; and the duty we owe to ourselves and posterity, to your interest, and the general welfare of the British empire, leads us to address you on this very important subject.

Know then. That we consider ourselves, and do insist that we are and ought to be, as free as our fellow-subjects in Britain, and that no power on earth has a right to take our property from us without our consent.

That we claim all the benefits secured to the subject by the English constitution, and particularly that inestimable one of trial by jury.
That we hold it essential to English liberty, that no man be condemned unheard, or punished for supposed offences without having an opportunity of making his defence.”

This, then, is the nature of the Sixth Amendment, that we cannot be held without a trial and our property cannot be seized without just compensation. But, ever since 9/11 we have had bills passed, such as the Military Commissions Act which would place us at the mercy of a military tribunal if we be accused of being a terrorist, and now the NDAA which Obama has said may apply to American citizens.
So, from my perspective, if the government wants you out of the way, the Sixth Amendment is not going to get in its way.

Well, well, we have found another amendment which for the most part, seems intact, the Seventh, which 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 re-examined in any Court of the United States, than according to the rules of the common law.”

However, the Eighth Amendment is a different story. The Eighth Amendment states, ” Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Before I continue, let me tell you something Thomas Jefferson once said. Jefferson once wrote, “It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others: or their case may, by change of circumstances, become his own.”
Therefore, just let me say two things; Abu Ghraib and water boarding. I’m sure that inside the many penitentiaries that dot our nation there are other instances of cruel and unusual punishment, but those two should be enough to prove that in regards to the right of a person to be free from it, the Eighth Amendment has also been violated.

Fret not, where almost done. The Ninth Amendment simply states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This simply means that just because the Bill of Rights does not specifically say that you may eat cabbage, that you do not have the right to do so, or to own a 4-wheel drive vehicle, a flat screen TV, or a whole slew of other rights. In fact, in Federalist 84 Alexander Hamilton clearly explains the very reason for which the Ninth Amendment was written, “I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted.”

It seems simple enough, but are those many unlisted rights still protected? What about if you want to purchase a toilet that uses 25 gallons per flush, can you do so? What about if you want to buy a 125 watt incandescent light bulb, can you do so? Our government has passed so many laws limiting what we can and cannot do that it has taken upon itself the role of micromanaging our lives. I would say that although you can choose between McDonalds and Burger King does not prove that your Ninth Amendment rights are intact. But that’s just me.
Finally, the Tenth Amendment. The Tenth Amendment states, “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.”

To understand this amendment you MUST understand what powers the Constitution grants the government. But, let it suffice to say that the federal government HAS overstepped the boundaries of its powers and infringed upon the rights of the states.

The Civil War is a perfect example of this. The states agreed to the Constitution, creating the federal government. If, at any time, the states decided that the Union was no longer something they wished to be a part of they had the right to declare it, and secede. That is the very principle our nation was founded upon, as written in the Declaration of Independence. Yet the federal government not only denied that principle, it went to war to prevent it.

I could go on and on with examples of the federal government overstepping the boundaries that separate its powers from those of the states, but I will just mention one. What about when a state passes a law legalizing marijuana, and the feds intervene? Where in the Constitution does it grant the federal government the authority to criminalize the usage of marijuana. Go ahead, I’ll wait while you go look. But be forewarned, you won’t find it.

With that said, the federal government has become lord of master of all, subverting the states from co-sovereigns to mere members of a union who are beholden to the federal plantation master.

So, yeah, the Tenth Amendment is dead.

So, how did we do? Two out of ten still standing. Not too good America. I’m sure your ancestors would be proud. In fact, were our Founders alive today they would probably say, as did Sam Adams, “If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen.” In fact I know that’s what he’d be saying, because it is the same thing I say all the damn time.