Happy Friday and welcome to the eleventh installment of the repost of my 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, Article One, 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 Two, Section 1 (Part One)
Friday Constitutional 7 - Article Two, Sections 1 (Part Two), 2, 3, And 4
Friday Constitutional 8 - Article Three, The Judicial Branch
Friday Constitutional 9 Article Four, Relationships Between States
Friday Constitutional 10 - Articles 5, 6 And 7
Today we are kicking off the Amendments of the Constitution. Most of my 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.
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 me 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 (though this test has been supplanted so using it as an example for current law is not a great idea). 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 it 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.
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 my 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.
I’m 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.