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Happy Friday and welcome to the eleventh installment of the Dog’s ongoing series on the United States Constitution. This series is looking at the entire Constitution and talking about the seeming meaning of each section. Up to today we have been going over the Articles of the Constitution. If this is the first time you have joined this series, you can find the other ten installments at the following links:
Friday Constitutional 1 – Preamble, Sections 1 And 2
Friday Constitutional 2 – Article One, Sections 3 And 4
Friday Constitutional 3 – Article One, Sections 5 and 6
Friday Constitutional 4- Article One, Sections 7 and 8
Friday Constitutional 5 – Article One, Sections 9 and 10
Friday Constitutional 6 – Article 2, Presidential Powers, Sections 1-3
Friday Constitutional 7 – Article Two, Presidential Powers
Friday Constitutional 8 – Article Three, Judiciary Branch, Sections 1-3
Friday Constitutional 9 – Article Four, Relationships Between The States
Friday Constitutional 10 – Articles 5 – 7
Today we are kicking off the Amendments of the Constitution. Most of the Dogs fellow citizens are going to be more familiar with the Amendments (at least the first ten known as the Bill of Rights) than they were with the Articles. This is going to make for more contentious comments. Please be as respectful as you can, and where available support your point of view with legal cases.
Amendment One:
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.
There is a lot of meat in this little paragraph so let’s break it down.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
For something so straight forward this section gets a lot written and said about it. To the Dog it says that Congress can not make any law that will in any way create preferred religion in this country, nor through its legislation prevent religion from being practiced. The problems come from how broadly one is willing to interpret these strictures.
Let’s take the “In God We Trust” that was placed on the currency (at the direction of Congress) in the fifties. It was done to differentiate us from the “Godless“Communists of the Soviet Union and China. It passes muster by being neutral in terms of not specifying which god we trust. But that assumes that there are no polytheists or atheists in the country. If one is to be strict about the Constitution this seems like a violation, though there has been a Supreme Court ruling that passing references to god are ceremonial and therefore acceptable.
Now there is also the flip side of this in the “or prohibiting free exercise thereof” section. This seems very wide open; though a common sense understanding would tell you that there has to be some limits. Obviously if one were a believer in Orthodox Mayan religion and wanted to sacrifice a willing human on the Solstice, in order to assure the return of the long days of summer, there would be a conflict with other laws. From reading the Constitution it is pretty clear that the framers did not want us to through common sense out the window in any direction. They were far more concerned with the a State sanctioned and run religion as were common in Europe being enforced than they were about prayers at the opening of Congress.
Now on to free speech:
or abridging the freedom of speech, or of the press
Again the Framers wanted to be sure that the Congress could not prevent the people of the new nation from speaking their minds about that government, either through voice or print. There are those that take this to mean that they are free to say whatever they like, whenever they like. This is not the case. You can not, in the classic example, yell “Fire!” in a crowded theater, falsely, and use your free speech rights as a defense against the consequences. There is a level of responsibility that goes with all rights and to use them in a blatantly irresponsible manner is not allowed.
Also, this amendment only applies to the Government. You are free to say what you like to and about the Government, but that does not cover businesses. For example if you were to go into Starbucks and start to loudly declaim about the evils of torture, the manager is within his rights to demand that you leave. You could even be arrested for causing a disturbance. You would not be charged for the content of your tirade, but for the manner and place in which you said it.
Like wise the press is free (though lately is seems to fail more than it succeeds) to look into any action that the government takes and print anything that it can substantiate with evidence. It can also, in the opinion page, say any old thing that it wants, true or not, and the law can not limit this right.
or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This section is a follow on to the right of free speech. It guarantees that all citizens can assemble, peaceably, and can petition their Government. There are some limitations on this based on the size of the crowd you would like to assemble. You can, through size of the crowd, violate the peace of the community, which is why permits are often required for demonstrations. However, a lone citizen with a sign is always lawful. You might see these “Highway Bloggers” holding anti-reproductive rights signs over their heads on bridges on your commute.
Amendment Two:
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.
Hoo Boy! This is an amendment that is one sentence long, yet you could float a battleship on the amount of ink that has been used to debate its actual meaning and intent. For most of the Dog’s life there has been an argument as whether the right is an individual one or a collective one. Those that favor control of guns focus on the first four words. At the time of the writing of the Constitution a standing army was not the norm. Militia made up of citizens was much more common. Guns were expensive and not quickly produced so, if you were going to use a militia to protect your State and Nation, you would want to have those weapons in the hands of the citizens that would answer that call.
Those that favor gun ownership focus on the last 14 words with particular focus on the last four “shall not be infringed” as saying that this is an absolute prohibition on Congress enacting laws that will do anything to prevent them from arming themselves to whatever level they want and can afford. To them the fact that a militia is mentioned is immaterial.
With the recent Supreme Court decision overturning the absolute ban on handgun ownership in Washington D.C. this seems to be more settled law. The Supreme Court held that this Amendment does grant an individual right to gun ownership. They did, however, kind of split the baby by allowing that while you are allowed to own guns, there is still some room for regulation of those weapons. This will be the next set of law suits as places like D.C. and Chicago tries to balance this right against the public safety needs of all citizens whether they want to own a gun or not.
The Dog is going to stop here for today. Above are the first two Amendments of the Bill of Rights, what are you thoughts on them citizens?
The floor is yours.
15 Comments
Thoughts? Corrections? Emotional Outbursts? Just try to keep the gun play to a low level….
thomas Jefferson on religion as annotated by Thom harmann, a must read
I do not know anyone (personally), republican or democrat that is opposed to regulating guns, nobody wants a murderer legally buying guns
and for the life of me, I do not know (personally) a democrat who believes guns should be banned entirely.
the right for the state to keep a militia seems pretty clear, that while congress cannot pass a law restricting the states rights, the state can.
the state can also, (as far as my reading) extend their rights to regulate militia to local precincts
I therefore think it might be fine to restrict Congress’s ability to regulate arms but not fine at all to restrict state and local government that authority
NAL
Well, if I thought it was a workable policy I would be totally in favor of banning guns. However, there is that mean old reality. We have 200 million weapons in this country. If we stopped producing and selling them today, the last one would become inoperable sometime in late 2210. Given that reality, there is exactly zero point in trying for a total banning policy.
The problem with you last sentence is the Supremacy Clause of the Constitution, it makes the Federal law supreme to all state law. That means that if you can’t not have Congress infringe on the right to bare arms the States have less right to do so.
only if that’s the intention which (to me) it clearly is not, notice teh bold;
Oh, I hear you brother! I think our current ruling on this issue got the whole thing wrong. But do remember that there was no standing US army at the time, so militia would be where it would be drawn from. That being the case, the Federal Government would still control there.
This is the only area that I support orignalism in. The situation the Framers were describing no longer exists, so this part of the Constitution should be null. Sadly they did not provide for that either.
stds, the constitution clearly says “a well regulated”, this gives states the right to regulate, it takes away the fed’s rights to regulate
at least that’s my interpritation
Whoops! I forgot to say thank you to you for putting your ideas out there! Sorry, I meant to, I just hit submit too fast.
did you read thom harmanss’s page I linked?
you must, required reading
Except that the self-same Constitution specifically says that the States and Congress do have authority to regulate the militias.
Remember, the very same folks that composed the Second Amendment wrote the above. They are pieces of the same pie.
If an individual is part of a collective militia, then the Congress and States have the power to control and discipline an individual. States would have the power to mandate training, to register participants in the militria, what armns they have, to provide the weapons, and to appoint the officers that oversee the individuals.
It seems to me that a militia is not “well-regulated” if an officer doesn’t know who he leads, how they are trained, what they are armed with, where they are, if they have a criminal record, etc.
The argument that the militia “right” extends to individuals is actually a two-edged sword…since it means that the State and Federal Goverment CAN interfere in how those guns are recorded and individuals trained.
If there was a right to bear arms autonomous of the militia then government would have less power imposing itself into the day-to-day lives of gun owners. My reading is that “you have the right to bear arms, but that ownership has responsibilities”.
“you have the right to bear arms, but that ownership has responsibilities”. Bingo! Personally I like the Swiss model best, if you are going to allow the citizenry weapons, have them provided by the goverment to everyone, have them have to have proficiency and track the ammo. Then you get the right to defend that the wingers are so concerned about and the level of accountability and safety us liberals want.
That should be “Congress has the power to…”
You are right that the second amendment is one of the most contested (and unlikely to be resolved politically) amendments but I would throw in two or three points. First, if you read the Federal right to regulate militia’s that is when they are in Federal service not at any time (it is like Bush calling himself the commander-in-chief of the Nation as opposed to the armed forces) and the question of federal supremacy is not so clear cut since there are things that the states could do that the Federal government was not supposed to do (at least back in the 18c). On the other hand, it is the case that we now have to read the Bill of Rights through the Reconstruction amendments–and with the incorporation doctrine a lot of rights that were supposed to exist only in relation to the Federal government now exist relative to the state governments as well. I’m not sure of the exact position of the 2nd amendment in that debate. Also, if I remember correctly, Saul Cornell in his recent study of early history of the second amendment suggests that what we consider to be the individual rights reading is really a Jacksonian development and was not there “originally” for those who are originalists.
The federal supremacy position is also complicated in the 1st amendment since on the state level there were actually religious establishments (in Mass and Conn) which didn’t lose out until the 19th century. So there the amendment wasn’t taken to immediately bind the states. In the end, though I don’t think that you can separate out the individual conscience from the establishment angles of this. It is also another reason not to be too originalist. The history of this has been alive since the beginning.
Thanks for the point of view! While doing this series I have come the realization that we can not treat the Constitution like a buffet, it either is all important or it is not important at all. It seems like that idea is not one that is very common, though it should be.
I’m not sure that I had a viewpoint on the buffet series but I do think that the history of this is what makes simply reading the text itself so hard.