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FridayConstitutional

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.

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 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.

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 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.

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Comment Preferences

  •  Tips? Flames? Thoughts? (25+ / 0-)

    If we get into some tussle here about either Amendment, let's all try to be civil, eh?

    Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

    by Something the Dog Said on Fri Mar 25, 2011 at 06:14:24 AM PDT

  •  Here's My Suggestion. Give Global Corporations (1+ / 0-)
    Recommended by:
    Aspe4

    total sweeping freedom to promote their agenda against the people, the government, reason and civilization, and forbid government from regulating them or giving them any kind of duty or obligation.

    I only wish I could collect the bounty for having thought of it first.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri Mar 25, 2011 at 06:41:51 AM PDT

  •  important to recall (6+ / 0-)

    First Amendment is a series of restrictions on the Government; it is only by implication a set of rights granted to the population. That's why, in Citizens United ...

    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.
    "The people" doesn't come in until after the speech clause, which is where the argument comes from that the 1st Amendment doesn't care whether speech is corporate in nature; it just can't be abridged.
  •  And what is "regulated?" (4+ / 0-)
    Recommended by:
    kestrel9000, oldpunk, KVoimakas, ER Doc

    At some point in time, I believe I saw a historical revolutionary war era document that showed a list of materials that was need for a militia and the items were collectively refered to as "regulations."

    Grammatically the second amendment is structured so that "the right of the people to keep and bear Arms, shall not be infringed." is a complete sentence. Before that are clauses which only provide a reason.

    This better be good. Because it is not going away.

    by DerAmi on Fri Mar 25, 2011 at 07:17:48 AM PDT

  •  The SCOTUS decision on the 2nd... (16+ / 0-)

    ...was the right one, in my opinion (and I speak as a lifelong liberal).  By and large the Bill of Rights is about individual rights to be protected from government overreach.  When a citizen militia was the norm, individual gun ownership was in fact a necessity for collective self-defense or for individual protection (things could get rough on the frontier).
    Now we have a huge standing military.  But any reasonable reading of the 2nd is that - like freedom of speech, or the press, or assembly - gun ownership is a right of the people both individually and collectively, subject only to common-sense restrictions and limitations (just like freedom of speech and the press are subject to common-sense restrictions and limitations, and no one really denies this).  The founders were rightfully suspicious of government abuse of power against individual citizens.

    •  I hate the term "common sense" in that context (10+ / 0-)

      My common sense, for example, says that the earth was not created in six days by a magic sky fairy and is far older than 6000 years. But there are those who would diagree vehemently and attack me for saying so.
      That's a bombastic example, sure, but I think you get the point. I don't like "common sense" being used as a basis for advocating legislation, especially laws that limit what we may do.
      It begs the question of who's in charge of defining "common sense."

      People call me rude. I wish we all were nude. I wish there was no black and white. I wish there were no rules.

      by kestrel9000 on Fri Mar 25, 2011 at 09:24:15 AM PDT

      [ Parent ]

      •  I think it's subject to restrictions in order to.. (1+ / 0-)
        Recommended by:
        43north

        make the militia "well-regulated", i.e. well-functioning.  I think that is a more solid textual basis than "common sense", and naturally implies training and competency rules, as well as keeping guns out of the hands of those proven to be criminally irresponsible with them.

        The really sad part is that the "gun laws" imposed in most states with "gun control" don't come close to being like this, and the "right to carry" laws imposed in most states without "gun control" don't come close to being like this either.  The Florida permit rules come closest.

        Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

        by neroden on Fri Mar 25, 2011 at 01:00:54 PM PDT

        [ Parent ]

    •  "Commonsense restrictions" (5+ / 0-)

      Psychbob, you are correct on restrictions and limitations.
      The restrictions are not on having lips, a microphone, vocal cords, or an amplifier.  The restriction is on harmful use of words, be that hate speech which results in incitement of injurious assault, or the proverbial "Fire!" for no good cause in a theater or other public venue.

      Same for the written word.  No prohibition on pen, pencil, paper or printing press.  No license* to purchase a computer or printer for use with a text editor/word processing software.

      Again, it's in the criminal enterprise of printing libelous words,
      counterfeit money, and perhaps a few other uses regarding inappropriate behaviour around minor children.

      Much the same could be said about the Second Amendment... but we choose the opposite response.
      We criminalize the implement, and in doing so, often offer less than judicious punishment for the deed of homicide, assault, or robbery.  Often it's just neater, cleaner, cheaper to put someone in State Prison for gun-related offenses,
      and tell it to the media.  
      Former Manhattan prosecutor Robert Morgenthau was famous for this:

      Two fellows get into a dispute over drugs and shoot-up a schoolyard?  
      Toss them both for "Felony Possession" and tell the media how "Serious the Manhattan DA's Office is on Gun-crime."  The press and TV media sopped it up, 15 second of another "victory" in the war-on-drugs.

      Yes indeed, a somewhat solid 2 1/2 years less good-time, for attempted homicide, assault with a deadly weapon, and reckless endangerment of a minor.  

      Seemed like a deal to me... and WHY equating "gun" with "crime" hasn't worked.

      Assault.  Homicide. Reckless Endangerment.  Robbery. Rape.  Aggravated Assault.  Aggravated Rape.  
      Those are forcible deprivations of another person's right to exist in peace.

      All should win you the big prize... not some chump-change conviction, where you're back on the street in roughly 20 months.

      However...
      for the majority of self-describe liberal/progressives, it's the gun lounging to my right in the top desk drawer, that's the violation of their peace.

      It's not pressed to their face, aimed in their general direction, or discharged so the sound instills fear and a notice of impending danger.  
      No, that gun is currently earning it's keep, restraining the #10 envelopes from running riot within the drawer.  

       (*EULA being intellectual property licensing and not speech-restrictive)

      I have many a friend in Casablanca, but somehow, just because you despise me, you are the only one I trust. ~ Ugarte.

      by 43north on Fri Mar 25, 2011 at 10:11:58 AM PDT

      [ Parent ]

  •  The best question is.. what is meant by 'Arms'? (3+ / 0-)

    There are folks who believe the Second Amendment guarantees them a personal right to own firearms that cannot be infringed by any agency or legislature.  We now have a large number of them on the Supreme Court, although those same sort of folks came up with Bush v Gore, and Citizens United, so it is just as likely to be a political declaration and not a true interpretation of the Constitution.

    But, if some people do indeed hold that view.. why do they accept any limitations on what qualifies as arms?  Why can't they freely own a tank?  Anti-aircraft batteries?  RPGs?  You would certainly need those items to defend the 'security of a free state', considering that any attack on that state would most likely be similarly armed.

    If they don't make the argument that the Second Amendment guarantees their right to own any military-grade weapon they can afford, then they agree that the government has the basic authority to control whether they own anything at all.

    "To pass these defendants a poisoned chalice is to put it to our own lips as well." Justice Robert Jackson, Chief Prosecutor, Nuremberg.

    by Wayward Son on Fri Mar 25, 2011 at 07:50:24 AM PDT

    •  Yes - an "arm" is anything useful in battle (1+ / 0-)
      Recommended by:
      Aspe4

      A baseball bat is "arms". A hubcap converted into a chest plate is "arms".

      Even bread can be "arms".

      In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

      by blue aardvark on Fri Mar 25, 2011 at 09:05:31 AM PDT

      [ Parent ]

    •  In US v Miller (1939) (6+ / 0-)

      the Government argued the National Firearms Act (1934) was legal, due to Miller possessing a short-barreled shotgun, prohibited under the Act.

      Miller's defender countered with "Second Amendment" - as the Government wanted, as this would help establish case-law.

      The Government countered with an assertion* that a short-barreled shotgun was not a "suitable arm for war", and therefore fell outside the arms due the unorganized Militia.

      Miller's weapon - the shotgun - wasn't military-enough.
      As to your supposition, why then not a tank or artillery?
      You can own a tank or artillery - you need only obtain the proper permits.  Same for those other weapons defined under the NFA '34, "machine guns".  It's an expensive and extensive look into your life.
      Few people I know, want one so bad as to spend $10,000 or more to do so.

      * The US Expeditionary Force had used "Trench Sweepers" - short barreled shotguns in WWI - a fact conveniently overlooked in the arguments before the Court.

      I have many a friend in Casablanca, but somehow, just because you despise me, you are the only one I trust. ~ Ugarte.

      by 43north on Fri Mar 25, 2011 at 10:25:18 AM PDT

      [ Parent ]

  •  ON the 1st A, you failed to mention the (6+ / 0-)
    Recommended by:
    meagert, 43north, oldpunk, neroden, Tom Seaview, 5x5

    implied right to travel.  One cannot petition their gov't, peaceable assemble, go to their place of worship or speak while standing on their soapbox in the town square if they cannot travel.  

    The failures today to keep to the ideals and intents of the BoR are continually undermined and ignored.  

    Where does it state the gov't can create "free speech zones" that are blocks or miles away from the route(s) traveled by our public servants? How can one effectively or peaceable assemble or petition for redress if one cannot even be heard (or seen) by said public servants?

    Where did the 1st A give authority for the IRS to decide the criteria of what constitutes an organized religion? Please note I do not personally believe in any organized/recognized religion, the point being that somehow, the gov't has taken it upon themselves to decide what is a valid religion or not...expressly verboten by the 1st A.

    Where does the 1st A give the gov't the authority to prevent any citizen the right to threaten a public official?  

    § 871. Threats against President and successors to the Presidency

    (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

    This classified as a felony.

    What's been practiced and utilized by the aforementioned statute is abysmal.  

    Note the arrests and/or detainment below:

    "God will hold you to account, Mr. President."

    "--Rev. Rob Shenck, to President Clinton during a Christmas Eve church service at the Washington National Cathedral, referring to the president's veto of a ban on partial-birth abortion.

    After the service, Rev. Shenck was detained by Secret Service agents who accused him of threatening the President's life. No charges were filed.

    Please note, I do not agree with the content of Mr. Shenck's speech (or religious position), but does he not have the inherent right to say it?  

    (Excerpt from an AP wire story dated October 30, 1996)

    "CHICAGO (AP) --  ... (two people) were arrested July 2 at the Taste of Chicago fair after President Clinton approached them and ... responded with a rude remark.

    She said the remark was, ' "You suck and those boys died,'' ' in reference to the June 25 attack of a U.S. installation in Saudi Arabia that left 19 American airmen dead. Secret Service agents initially said they heard something else that could have been taken as a threat against the president. Police said the (couple) were arrested for persisting to shout profanities while being questioned."  

    Where's the line drawn between a bona fide threat or criticism?

    Why are ppl being detained and/or arrested for "being disrespectful" to the president?  He (or she, someday) are not a special class of citizen deserving special privileges and protections, are they?  Should they be? Are we not going down a very bad slippery slop when we elevate said office holder above the rest of us? Are we not then equating said office holder to the status of monarch? That they somehow are entitled to some inherent right the rest of us do not have?

    These are just some flaws I've noted through the years...

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Fri Mar 25, 2011 at 08:40:21 AM PDT

  •  On the 2nd A: (8+ / 0-)

    Here's a good primer for those among us that do not know the history of our militia and how effective they actually were against the well organized armies of the French & British.

    http://www.claytoncramer.com/...

    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.

    This point was addressed by this:

    The Militia Act of 1792

    That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

    Gun ownership during the Revolutionary Era & thereafter was about 70%, today it's about 40%.

    Please take time to read my very old diary on the Ratification Documents & RKBA here:

    http://www.dailykos.com/...

    Since I'd rather not re-write all that was discussed there, suffice it to say, the right to keep and bear arms was and always will be an individual unalienable right.  The red herring put forth over the last 90 yrs that the 2nd A was defining a "collective right" flies squarely against historical Supreme Court decisions and the facts.

    The Bill of Rights (the first 9 A's) were a list of individual rights each person (or people as in plural or many) demanded be included in our constitution.  Unalienable rights that we Americans are born with & that cannot be abridged or abrogated by the "tyranny of democracy".

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Fri Mar 25, 2011 at 09:06:06 AM PDT

    •  I believe the intent makes it clear that training (0+ / 0-)

      requirements were entirely within the expected meaning of "well-regulated militia".  The Swiss model approximates what the Founders were thinking of.

      Read pp. 1-7 of Krugman's _The Great Unraveling_ (available from Google Books). NOW.

      by neroden on Fri Mar 25, 2011 at 12:56:29 PM PDT

      [ Parent ]

      •  right, neroden; but the Founders didn't LIMIT (1+ / 0-)
        Recommended by:
        gerrilea

        the right to the Swiss model.

        Their situation was a hell of a lot nearer that of Israel than that of Switzerland at the time. Indians near and far were hostile, and the whites around might be, or if not actively so, might turn hostile at any given moment, depending on the prospects of a merc's win against the upstart rebel Americans.

        If you take a hard look at the history of gun control in this country, it's got some darned unsavory roots -- efforts to disarm, unilaterally, certain races or classes of people.

        God made all human beings; Sam Colt made 'em all equal, is one way to look at it.

        LBJ & Lady Bird, Sully Sullenberger, Molly Ivins, Barbara Jordan, Ann Richards, Drew Brees: Texas is No Bush League! -7.50,-5.59

        by BlackSheep1 on Fri Mar 25, 2011 at 03:34:36 PM PDT

        [ Parent ]

      •  Sort of agree....sort of... (0+ / 0-)

        Yes the intent was that all able bodied white males 18-45 were to be well trained for defense of State & Country, when needed.  The gov't could control & regulate said militia members WHILE they were called up for action....not before or after. The State or Central gov't could have mandated annual training sessions...that's about it...

        We don't have a Napoleonic Codification of laws...ours is very specific...what, where, when & why the gov't could control arms was only during militia service.  Somehow this very important point has been lost in the last 100 yrs.

        Under the Articles of Confederation it was clear that there needed to be a central command and control structure...the old adage, "too many chiefs not enough Indians" comes to mind.  We all couldn't show up to a battle field and appoint ourselves generals, nor could each State send it's own generals....who was in control was the biggest failure of the Articles.

        -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

        by gerrilea on Fri Mar 25, 2011 at 08:31:03 PM PDT

        [ Parent ]

  •  the press (4+ / 0-)
    Recommended by:
    cevad, gerrilea, Aspe4, BlackSheep1
    There is a level of responsibility that goes with all rights and to use them in a blatantly irresponsible manner is not allowed....[but] the press is free in the opinion page,...[to] say any old thing that it wants, true or not, and the law can not limit this right.

    I believe there was a decision that the press may lie about the news a much as they like on any page (or video) and there is no remedy.  A shame, that. There oughta be a law against lying to teh public.

    Scientific Materialism debunked here

    by wilderness voice on Fri Mar 25, 2011 at 09:10:48 AM PDT

  •  Thank you! I am glad... (1+ / 0-)
    Recommended by:
    Something the Dog Said

    ...you are reposting your excellent series. I am enjoying it as much as I did the first time! I seem to learn something new ( a new insight) with each reading of your diaries.

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