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January 8, 2013
[Blue Line Lawyer]

The Bill of Rights: It’s A Matter of Trust

Much has been made recently of the Second Amendment to the United States Constitution. Arguments are being made daily for more legislation to limit the application of and freedoms guaranteed by the Second Amendment and some are advocating the repeal of the Second Amendment. Firearms owners are being portrayed as everything from irresponsible to paranoid to, my favorite, sexually overcompensating by possessing firearms. In each case, as well as in the larger debate, something is getting lost.

The Bill of Rights is not a footnote to the United States Constitution, it is not an after-thought, and it is not a meaningless addendum. The Bill of Rights is the embodiment of a final set of “lines in the sand” drawn by patriots who understood tyranny. To them, overwhelming government intrusion was a reality and nightmare from which they fought hard to extricate themselves and their families. Tyranny was not a fear, it was a way of life that no doubt still filled their dreams.

When the Gadsden flag was adopted depicting a rattlesnake and those immortal four words, “Don’t Tread On Me,” there was no mistaking the resolve of the colonists. For them, freedom was a one way fight to success for failure meant execution. When notions of independence began to brew, an overwhelming presence of British soldiers came ashore to enforce the supremacy of the Crown. Imagine the courage of those colonists as they met in secret, printed handbills and newspapers in dark basements and readied their muskets to put action to the words and notion of creating an independent nation where kings existed only on a chessboard and royalty had no place.

Look at the Bill of Rights. Really read it. These are not the words of people who thought their freedom was secured for all time. They knew that the freedom they recently obtained was and always would remain tenuous and fragile. They knew that the best protection against the rise of a tyrant or oppressive government was a series of protections that would allow the People to remain in control. Freedom, they knew, would not be lost in an instant but over time through gradual encroachments as it had been in the Colonies. The Bill of Rights speaks directly to their fears and brilliantly sets forth a framework to ensure the freedoms granted to those who fought so hard to attain them.

The First Amendment; freedom to speak against the government, to worship as you wish, and to petition the government for a redress of grievances. The Third Amendment; to be free from the mandatory quartering of soldiers in one’s home. The Fourth Amendment; to be free from unreasonable searches and seizures and to have warrants based upon probable cause. The Fifth Amendment; the right to a grand jury presentment prior to formal charges, against self-incrimination, to due process of law, protection from double jeopardy and government taking without compensation. The Sixth Amendment; the right to a speedy trial, to know the charges facing you, to confront your accusers and to have legal counsel. The Seventh Amendment; right to trial by a jury of your peers in civil cases. The Eighth Amendment; protection against cruel and unusual punishment and excessive fines and bail. The Ninth Amendment; limiting the rights to the government to those expressly provided and expressing that all other rights belong to the People and finally, the Tenth Amendment; making it clear that federal power was limited and all other power belonged to the States or the People.

So we come to the Second Amendment; the right of the People to keep and bear arms. The United States Supreme Court has ruled this is an individual right in District of Columbia v. Heller. Now that right is under attack. Some say the founding fathers never envisioned AR15 rifles. They never envisioned motor vehicles either however we have no difficulty extending the protections afforded in the Fourth Amendment to an automobile. They never envisioned the telephone or computer, yet emails to Congress speaking against legislation are protected and telephone calls are afforded a measure of privacy.

As people rally for limitations on the Second Amendment, where are the people who rallied to protect the Fourth Amendment when the Bush Administration sought expansion of wiretapping authority under the Patriot Act for calls coming into the United States from suspected terrorists? Where are the people who saw the end of civil liberties in the communication between the FBI and national intelligence agencies aimed at preventing further terrorist attacks? Where are the self-appointed bastions of liberty who spoke out against the “due process” violations perpetrated by holding prisoners seized on foreign battlefields in Guantanamo Bay, Cuba? Where are they and how have they decided that the Second Amendment is not worthy of the same level of protection?

The motivations of any man are known only to him. However, the prudent and cautious person looks past the words of another to consider the consequences of the actions and plans pursued. The Bill of Rights is not a multiple choice test. It is all in, all the time. The framers of our Constitution knew this. They also knew the alternative to the protections provided in the Bill of Rights. They tried oppressive government and they did not care for it. Given the choice, they were clear that freedom was a better pursuit. However, they never promised that pursuit would have a finish line.

Civil courts provide meaningful remedies against private intrusions against our Constitutional rights like a boss who prevents you from praying at your desk or a neighbor who prevents you from placing a religious statue on your lawn. The real fear the Framers knew all too well was the efforts by an oppressive and intrusive government that cannot be meaningfully addressed in any court. The Bill of Rights provides protection against government oppression. As part of the government, LEOs have an obligation to support private liberties as well as limitations on government at all levels.  We cannot pick and choose the rights we will protect and defend. The Bill of Rights is not a menu.

Upon leaving Independence Hall at the close of the Constitutional Convention in 1787, a woman famously asked Benjamin Franklin a question. “Well Doctor what have we got a republic or a monarchy.” He replied, “A republic, if you can keep it.” The Bill of Rights was proposed two years later and became formally adopted upon ratification by three fourths of the states in 1791. Two hundred twenty-two years later, Mr. Franklin’s question still stands: “Can we keep it?”

Stay safe.

 

 

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