A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties (16 page)

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.

Our founders wanted us to have a strong national military, but they also wanted the citizens of each state to have the right to own and keep arms. In case of invasion, the populace would be able to aid our national military, and being armed would enable them to defend themselves, their families, and their property from violent criminals. To this end, the National Guard in each state is composed of its citizens and is under the control of the governor of the state. These National Guard units are under the ultimate control of the federal government, and their members can be pressed into service in the United States military.

Perhaps of even greater importance is the right of individual American citizens to own and maintain any legal arms that they can purchase or obtain. The founders knew that tyranny was often preceded by the confiscation of weapons from the citizenry. They felt confident that good leaders were in place at the time that our Constitution was formulated, but they were not certain that a time in the future might not produce leaders with a different vision of what America should be, who might use force to bend America to their own will. If that happened, the founders wanted the American people to be able to fight for their freedom and for
the values and principles that established our nation. They knew that this kind of uprising would not be possible unless the people were able to own and keep arms.

This right can in no way be violated, and any attempt to erode it should be vigorously resisted. Those who insist that tyranny could never come to America should read about how it came to so many other places that also felt safe. No one ever expects tyranny, but wise men will always be prepared for it.

Many Americans who are antigun are good people with good hearts and are concerned about the safety of children and all citizens. Unfortunately, too often they are narrowly focused on their primary concern and simply cannot imagine a situation where American citizens would have to physically fight for their freedom. They would likely learn the importance of the Second Amendment only after their freedoms had been lost.

Those who do understand the importance of this amendment should make every attempt to be sensitive to the concerns of those who are frightened by guns and violence. There is nothing to be lost by engaging in rational conversations about how to quell gun violence. There are many reasonable ways to reduce violent crime without compromising the integrity of the Second Amendment. At all costs, however, we must uphold the rights of the citizens to have and bear arms.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner; nor in time of war, but in a manner to be prescribed by law.

This amendment was a direct result of the resentment that Americans had felt when British soldiers invaded the homes of Americans during the revolution. The British government gave its soldiers the authority to demand that the colonists feed them and provide them with sleeping quarters. In many cases the soldiers abused this privilege. Our Congress wanted to be sure that this never happened again except in extraordinary cases of war with government oversight.

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.

This amendment protects our right of privacy. In America no authority has the right to search your private properties or information without just cause. If the authorities suspect criminal activity, they are required to obtain a search warrant from a judicial authority before conducting a search. Without this kind of protection, any citizen could be mercilessly harassed at any time of the day or night, and no one would be entitled to privacy in their lives.

This is one of the reasons why so many people were alarmed when it was discovered that the National Security Agency (NSA) was surreptitiously collecting private
information about random American citizens in an attempt to thwart terrorist plots. This would perhaps be less concerning if everyone trusted the government to be honest in all of its dealings with citizens. However, situations like the scandal about a government agency (the IRS) being used to persecute political foes do much to erode such confidence.

As technological advances occur, wise leaders will need to continue to study the Fourth Amendment and consider how it should be applied to these ever-more-sophisticated technological advances. We no longer live in the age of papers and books alone; rather, we have advanced into the cyber age. This means that much of our private information can be hacked or monitored by external forces, including governmental agencies, without our knowledge. I am virtually certain that our founders would not have approved of the random monitoring of private information that is possible in cyberspace.

Of course, the excuse is given that the government has to perform random monitoring to decrease the chances of successful attacks by terrorists. We have been repeatedly assured that safeguards are in place to prevent abuse of the information gathered about innocent citizens. That would perhaps be more comforting if there had not been so many instances of inappropriate secrecy and dishonesty recently by agents of the federal government.

The wonderful thing about our system is that we have the ability, through judicial review and the establishment of a legal precedent or by constitutional amendment, to rectify the situation. In case anyone fears that government authorities will be kept from getting information they need, it should be
pointed out that officials can readily obtain the necessary search warrants if they have a legitimate suspicion about one of our citizens. There is never a good reason for indiscriminate violation of privacy. If we are to remain free, we must be vigilant about protecting our liberties, not quick to give them up for the sake of security.

No person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment prohibits the authorities from taking your life, liberty, or property in an arbitrary manner. First this amendment protects American citizens accused of serious crimes from being tried in a court of law by our government without first being indicted by a grand jury. A grand jury reviews the evidence in the case and decides if there is enough evidence to bring charges. This prevents the government from arbitrarily putting people in prison or executing citizens without due process.

This amendment also includes the “double jeopardy” clause frequently quoted by legal authorities. This clause declares that a citizen cannot be tried again for the same crime if he was found not guilty the first time. There are exceptions to the rule and a number of legal maneuvers that can allow prosecutors to go after criminals who have beat the system, but the rule is really there to prevent the government from harassing people endlessly.

When defendants say, “I’m pleading the fifth,” they are referring to the portion of the Fifth Amendment that says you cannot be forced to testify against yourself. This makes forced confessions, torture, blackmail, and a host of other unsavory tactics less likely to be used by prosecutors and law-enforcement agents.

Finally, the Fifth Amendment prevents the government from confiscating private property that is needed for governmental purposes without fairly compensating the citizen who owns the property. Many emotional disputes between the government and citizens arise because the government feels that it needs someone’s property to initiate or complete a project. Sometimes that property has been in a family for many generations and is worth far more to the family than it is to the government. If the government can demonstrate that the property is needed for the public good and provides fair compensation, the property owner has no recourse.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This amendment governs the way a defendant is tried. It ensures that people do not languish in jail for extended periods of time while awaiting trial. The amendment states that the defendant is entitled to a trial by jury and that the jury must be from the area in which the crime was committed. Furthermore, the person being tried must be provided with information about the accusations against him so he can form a defense. If the defendant cannot afford a lawyer, the government must provide one, and if necessary the court is to use its power to compel defense witnesses to come to court. We should be thankful that we live in a land where the government is required to work so hard to protect the rights of the accused.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment governs the majority of court cases in America, which are civil cases, not criminal cases. These cases can be tried by a judge or by a jury. When money is at issue, cases of low value are generally tried by a judge, because the amounts at stake do not justify the expense of assembling a jury.

Cases tried in a lower court cannot be overturned by a higher court unless there is evidence that the applicable law was misapplied by the lower court or that the lower court’s decision was inappropriate for a variety of other reasons.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This provision protects citizens from judges who might set bail in an amount far beyond what is reasonable or possible for the defendant to pay. An unfair judge might also be tempted to impose excessive fines in order to cripple a person financially. This amendment prevents that kind of abuse.

The Eighth Amendment also protects against physical abuse. Almost every American knows that our system protects us against cruel and unusual punishment. That means authorities are not allowed to use torture or “creative” forms of punishment. Even individuals who have committed capital crimes and have been given the death penalty are entitled to death in a manner that does not produce excessive pain or suffering, even though many might want to see them suffer greatly.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The writers of the Constitution were well aware of the fact that they could not possibly list every important citizens’ right that might need to be considered in the future. For this reason they included the Ninth Amendment, which states that just because a right is not covered in the Constitution or Bill of Rights does not mean the right is invalid.

The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment is there to help the federal government keep itself in perspective. It reminds the three branches of our federal government that they have specific enumerated powers and that they are not allowed to arbitrarily usurp the powers vested in the state governments. If the Constitution does not list a certain power as belonging to the federal government, that power belongs to the states or to the people.

By emphasizing the power of the states in this amendment, our founders hoped to keep the size and power of the federal government under control while enhancing the individuality and power of each state. Each of our fifty states
has its own unique characteristics, and people reside in a given state because they enjoy the atmosphere and the camaraderie of like-minded people. The individuality of our states is immensely valuable and provides a host of options for all of our citizens, who can freely move to any state of their choice. If the federal government becomes too dominant, it will try to create uniformity to make domination of the people much easier. This amendment prevents that kind of power grab.

This amendment also recognizes that significant power should remain in the hands of the people. In some cases states initiate ballot referenda, putting controversial issues up for a vote so that the people can decide. In recent years some federal judges have taken it upon themselves to overrule the will of the people, changing or negating the outcomes of their votes in some cases. They will continue to do this and may even become more aggressive if their power is not challenged by the people through their congressional representatives.

There will likely always be tension among the federal government, the state government, and the people. This is probably healthy and was anticipated by the founders, who tried to establish a balance of power between the federal government and the states.