Tuesday, November 29, 2011

Loose Ramblings on the Bill of Rights

I often hear people talk about how the Second Amendment gives us the right to keep and bear arms. In fact nothing could be further from the truth. The Bill of Rights does not grant rights, rather it recognizes rights that we have simply by virtue of being people.

Just by virtue of being a human being, you have the right to worship who, when, where and how you want.

Just by virtue of being a human being, you have the right to gather into peaceable groups of your fellows.

Just by virtue of being a human being, you have the right to speak your mind.

Just by virtue of being a human being, you have the right to ask your government to fix mistakes it has made.

Just by virtue of being a human being, you have the right to defend yourself and your loved ones with the most effective tools available.

Just by virtue of being a human being, you have the right to go into your home, shut the door and be left the hell alone!

So I get really worried when I hear people asking if illegal immigrants or foreign visitors or kindergartners are protected by the Bill of Rights. This sort of thinking implies that our right are conditional, that they can be taken away from us if the government decides to. Admittedly, there are circumstances where peoples' liberties are limited. After being convicted of a crime, for example, or if it is determined that your mental health is such that you present a danger to yourself or others. But such limitations should be approached with the greatest fear and trepidation, because it is so easy to accept "reasonable" limitation after "reasonable" limitation until you find that your freedom is effectively gone and you have no idea when or where or even how it happened.

In addition to the slippery slope danger there is the danger of outright abuse. In the old Soviet Union people who criticized the government were frequently committed to insane asylums under the simple theory that, since the government was perfect it is insane to criticize it. Likewise after the fall of Saigon, when the North and South merged into the Socialist Republic of Vietnam there was a constitution which, among other things, guaranteed that no one could be arrested without a warrant. That sounds reasonable enough until you read the story of a dissident who was arrested with his wife. But when police arrived at their home to execute the warrant they discovered that the wife had given birth a few days before and the baby was not mentioned on the warrant. This did not prove an insurmountable problem, however, as the captain of the squad sat down and hand-wrote a new warrant for all three. So yes, you couldn't be arrested without a warrant even if it meant the police had to sit down and write up a warrant on the spot.

More insidious than either slippery slopes or outright abuse is the forgetting of just what the Bill of Rights actually means. The title 'Bill of Rights' is actually a misnomer because it doesn't tell people what they are allowed to do, it tells the government what it is forbidden to do.

First: "Congress shall make no law (personally I think they should have stopped there) 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."

Second: "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."

Fourth: "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."

All of these are (theoretically) strict limits on what the government and its agents may do. Unfortunately, over the decades, courts and legislatures have chipped away at these rights until they are a shadow of their former selves.

Free exercise of religion? Ask the Mormons who were required to repudiate polygamy before Utah was allowed to become a state. Ask the Native American who gets caught collecting botanicals for an ancient religious ceremony but doesn't have the necessary racial identity card that would permit him to practice his religion (peyote buttons in case you were wondering).

Freedom of speech? Ask the folks who ran afoul of the McCain-Feingold campaign finance reform law. Ask people who were mace and arrested for straying out of the designated free speech "zones" at political events. And how about those people who got detained along a parade route based on slogan on their t-shirt?

The right of the people to peaceable assemble? Sure, as long as you get the correct permits and pay the appropriate fees, etc..

The right to petition the government for redress of grievances? Petition away; doesn't mean they'll actually pay any attention to you.

Right to keep and bear arms? When was the last time you walked into a hardware store, slapped down your cash and walked out two minutes later with a fully automatic Tommy-gun, 5,000 rounds of ammo and a silencer? Have you heard of needing a "permit to practice" for religious people?

Are you secure in your home and effects? Or are you subject to invasive heat scans looking for drug grow-ops in your house, no-knock raids, 'sneak-n-peek' searches, 'Terry' stops, roving DUI checkpoints, and so forth.

Jury trial? Sure, unless you're looking at less than a year in prison. Oh and if you insist on your right to be tried by a jury of your peers for more serious offenses, in many locales you will face harsher penalties if convicted. Presumption of innocence is a lovely theory until you are accused of a drug crime and all your assets are seized untinl you can prove they are not proceeds of the drug crimes you have not yet been convicted of.

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