Note: Originally published May 12th, 2009 at Brushfire Sparks.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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 offense 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 contains several different protections all of which fall generally under prevention of abuse of legal authority by the government.  The two most common protections are prevention of double jeopardy and the protection against self-incrimination (I plead the fifth).  It would be best if we break these specific protections out and review them separately.

The first protection provided by the fifth is the prevention of wrongful indictment.  The amendment establishes the basic parameters of the Grand Jury, and provides for the jury as the indicting entity in capital of “infamous” cases.  Existing precedent has determined that “infamous” crimes are defined by the punishment designated if a guilty verdict is rendered.  Thus the federal government can not charge you with murder without seating a grand jury to review the case against you.  It is not necessary for States to seat a grand jury in capital cases because the fifth amendment has not been incorporated under the fourteenth.  This gives the states the right to abolish grand juries (which many have).  In most states a preliminary hearing now replaces the grand jury process.

There is a great deal of flexibility under a grand jury.  Certain requirements regarding evidence do not apply under a grand jury.  Additionally, there is no requirement that individuals brought in for testimony be represented by an attorney.  You can not be convicted by a grand jury, only indicted.  The purpose of the grand jury is to review the evidence presented by the government and determine if there is sufficient ground for charges to be made.  Because it is a grand jury, any resulting charges would be for a capital or infamous crime.

The exception to the grand jury clause is for individuals serving in the military in times of peace or war.  Incidentally it also does not cover those who serve in the government militia.  This allows for the Uniform Code of Military Justice, a set of rules that apply only to those who wear the uniform of our armed services.  Because the military is excluded from the grand jury protection, members can be indicted on capital crimes without the need for the juries review.  This sets the table for the courts marshal, an other military tribunals.

This first portion of the fifth amendment may seem a bit less important than others but keep in mind, the protection arises from English common law based in the Magna Carta as a way of preventing frivolous capital charges against a citizen.  Were the government able to indict a person for murder without some type of due process, they could spend years awaiting a trial that would find them innocent, but still cost them a great deal of their life.  By protecting the people against such charges, the first portion of the fifth amendment prevents the government from using the judiciary as a tool against the people.  Like other protections in the Bill of Rights, the grand jury requirement limits the ability of government of abuse its power, thus limiting government.  That was the intent of the founders.           

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Copyright 2009.  The published content is the sole property of the author.  Any copy, use, or redistribution of any portion of the material without the written consent of the owner is a violation of international copyright laws.

Note: Originally published April 21, 2009.

“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.”

The first two amendments to the Constitution are the most familiar to the general public, largely because the are the most frequently under attack.  Whether it is freedom of religion, speech, or the right to keep and bear arms, groups like the ACLU can be found on the assault against these basic American rights.  There is a reason that these two amendments are under so frequent attack.  The first and second amendments contain the core of the freedoms promised within the BIll of Rights.  It is these rights that comprise the very foundation of this nation.  The first and second, particularly the second, provide for the means to defend and retake those rights if the government should exceed it bounds.

To understand the single right outlined in the second amendment it is helpful to break down the various pieces, define each, then re-connect the pieces to finally asses the meaning outlined by our founders.  It should be noted that this is being done quite frequently in courts and congresses across the nation, with definitions shifting depending on the purpose of those participating in the debate.  For our purpose, we’ll stick to the basics for the simple reason that the truth can usually be found in the simplest of forms. 

“A well regulated Militia...” There are two key words here, regulated and Militia.  Regulated means to control or supervise through the use or application of regulations or laws.  A militia is an assembled civilian force, raised from the population to supplement an army, or a civilian group raised in rebellion against a standing army.  Thus a well regulated militia is a civilian military force controlled or supervised through the application of rules and laws.  It is not our standing army, as some have argued, and it is not an outdated concept from the American Revolution, as it is designed to supplement any standing army, including today’s advanced US Military forces.  The part that concerns those who stand opposed to freedom and liberty is the idea that the a militia can be used in a revolutionary cause as well as supporting the standing army.  

The Founders understood that their ideas for this government were revolutionary.  For the first time the power of government was in the hands of the governed.  The Founders also understood that there would be some who would try to usurp that power.  At that time it might be necessary for the people to rise up against tyranny and once again defend their rights in order to restore this nation to its foundations.  They knew as well that if the government had the authority to disarm the civilian populace, the hope of that rebellion, if needed, would be lost.  That is the reason for the next part of the amendment, “... being necessary to the security of a free State...”.  History is filled with examples where the populace was crushed due to a lack of arms (India) or created their own weapons to restore their freedoms (Scotland, Japan).  The Founding Fathers wanted to ensure that there was a last line of defense against tyranny.  That last defense would be an armed, regulated, civilian militia.

This takes us to the real action statement, “...the right of the people to keep and bear Arms, shall not be infringed.”  Keeping in mind that the purpose of the Bill of Rights is to protect the rights of the people against an oppressive government, it is clear that the purpose of this amendment is to protect the rights of the people from any “infringement” of the government against this right.  To “infringe” means to, “act so as to limit or undermine (something); encroach on...”.  The choice of the word “infringe” was not made lightly.  In this context it means that the right to bear arms shall not be limited, undermined, or encroached on.  It means that laws that limit the type of weapons, that undermine the ability of citizens to obtain weapons, or that encroach on a person’s ability to own weapons are a violation of the second amendment.  It means that the majority of today’s gun laws, enacted or under consideration, are truly unconstitutional.  

The second amendment follows the first because it is designed to provide the people’s last line of defense against a government that is overstepping its bounds.  The first amendment protects the five core rights that are the foundation of this nation; freedom of religion, free speech, a free press, freedom of assembly, and the right to petition the government.  The second amendment protects only one right, the right to defend the people against an encroachment by the government on the foundations of our nation.  The founders did not do this by accident.  They knew from experience that disarming the population was a sure way to control the population.  They knew from history, including their own, that an armed militia was the last defense against an oppressive regime.  They set this particular right aside within the Bill of Rights to ensure that the freedoms they had outlined in the Constitution could be defended.  Our right to keep and bear arms ensures the other rights in the Constitution.  It is, “...necessary to the security of a free State...”.  If we lose our right to bear arms, if we continue to allow this or any government to continue to infringe on this last line of defense, we have surrendered our nation to the tyrants, and we deserve our fate.    

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Copyright 2009.  The published content is the sole property of the author.  Any copy, use, or redistribution of any portion of the material without the written consent of the owner is a violation of international copyright laws.

Note: Originally published on April 7th, 2009

“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 importance of the first amendment should be noted in the title of this blog.  Four parts, just to review the first set of inalienable rights granted by our creator and protected by our founding documents.

Freedom of assembly is the right to come together with others of similar interest and express and defend common ideas and interests.  It protects peaceful assembly, not a violent mob, because the founders wanted people to be able to gather, protest, and raise awareness, but did not want lynch mobs running the streets.  Peaceful assembly has been demonstrated in the recent Tea Parties that have popped up across our nation.  These gatherings of hundreds, and now thousands of people, are groups focused on heightening awareness of our eroding liberties.  It is in the tradition, though not in the mold, of the original Boston Tea Party and Sam Adams, whose quote provides the name for our organization.

The founders knew that that an individuals free speech would be the “brushfire” that would continue to ignite the fires of freedom in the new United States.  They knew that the individual spirit was needed to keep those fires burning.  They also understood that a single flame could not sway a government, because the electorate would need to consist of many fires in order to carry the weight needed to shift government.  This was all based in the fact that power corrupts, and the founders expected the people to control the government through free speech, press, assembly, and petition.  For the republic to work, the majority would have to be informed and united to drive the changes away from the natural process of government growth, and toward the idea of controlled, minimal government of, by, and for the people.

When the government oversteps its bounds and takes action against the people, the people have under the first amendment the right to petition for a redress of grievances.  This was not put in place so the people can collect signatures, but to ensure that the people could demand that the government correct its missteps without fear of punishment for that request.  It is the ultimate “whistleblower” rule, in that it protects those who demand the government “get it right” from the possible reprisal of that government.  It does not require the government to honor the request, or even listen to the petition.  Thus it is necessary to place the weight of the electorate behind the petition to garner the action needed.

These last two rights protected under the first amendment are most critical when the government fails to act properly, or infringes on the other rights protected by amendments one through ten.  A redress of grievances means to set things right, to correct the errors made and clarified in the list of grievances.  The grievances are commonly listed in the petition, the redress is the required remedy, simple enough.  But the government is not required to listen or honor the requests, so why are these two rights protected in the first amendment?  The answer is in the numbers.  A single person can petition the government for redress, but would mot likely receive a polite thank-you.  However, a large protest of say 2,000 or more people in 2,000 cities across the country, on the same day, raising the same petition, that would attract the attention of those who are elected by a majority vote of the people.  If the government could prevent those assemblies and petition through fear of retaliatory action, the issue could not be effectively raised, he voice of the people as a whole would be stifled.   

The founders knew that assembly and petition were extensions of free speech and press, but necessary extensions to ensure the government could not exceed its bounds.  The people, not a person, are responsible for electing our government.  Our representatives are responsible for bringing the voice of the people, not a person, to the floor of Congress and the halls of government.  It is the people, the assembled voices, who can make their grievances heard, demand redress, and expect to be heard.  Failure of those representatives to hear the voices raised in petition would result in a change in the vote of the majority, and a change of leadership in the government.  That is why the right to assemble and petition is protected in the first amendment, and why we as a people should exercise these rights as we should all others protected by the founding documents of this nation.     

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Copyright 2009.  The published content is the sole property of the author.  Any copy, use, or redistribution of any portion of the material without the written consent of the owner is a violation of international copyright laws.