Interpreting the Constitution
I’ve recently seen a fair amount of posts on blogs and forums talking about the constitution and what it does and does not support. One of the most common is “Separation of Church and State”
While I personally agree that I don’t want my church running my government any more than I want my government running my church, I take exception to this particular way of referring to that protection of the First Amendment, and the interpretations that have grown out of it. I also object to several other interpretations of the Constitution that have been made over time.
“Separation of Church and State”
The First Amendment to The Constitution of the United States of America reads:
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 item prohibits the passing of any law regarding (or, in an alternate reading “promoting”) any religion. The second item prevents passing any law that prevents people from practicing their religion.
The constitution does not guarantee that the government shall be free of religion, or that it’s people shall be. It does not guarantee that religious people shall not pass laws that they feel, on the basis of their religion to be moral.
It merely guarantees that the people shall be free from the government meddling in the affairs of religion.
By the same token, if the court house displays monuments depicting famous laws and famous law makers that are donated by the public, then you might wind up with a statue of one of the emperors of early Rome next to the givers of Sumerian law, next to a statue of Moses with the 10 commandments.
People who believe abortion is a form of killing, based on their religious beliefs or not, will of course attempt to make it illegal to perform an abortion except under circumstances where death is normally permissible, such as a doctor allowing one patient to die so that another may live. This is simply one example of a law some people wish to pass based on what they personally believe to be moral.
If a city government passes a law stating that it will decorate for holidays recognized by a majority of it’s population, that covers everything from Christmas to Buddha’s birthday, to Groundhog Day, to Talk Like a Pirate Day, depending on the popularity.
As long as a law (or, by an extension I’ll admit is rather reasonable, a policy) in not about one religion or another, or about favoring those who do not follow a religion, then the first amendment is being followed so far as the relation between church and state are concerned.
Since the law it’s self has nothing to do with religion, the fact that Christmas Decorations may appear in that particular town would hardly be against the first amendment.
Weapon Control
The Second Amendment of the Constitution of the United States of America states:
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.
Now here is a rarity among the various Constitutional Amendments. Not only does the amendment state what right of the people the amendment is protecting, but it gives one of the reasons that they created this amendment.
The government is also not allowed to pass any law which will interfere with the right of the citizen to keep and bear arms. Yet in Nebraska it is a felony to carry a gun weapon into certain classes of areas, such as it being illegal for you to carry a concealed weapon into a school, a hospital emergency room, a church, or a bank, and to carry a concealed gun else-where without a ‘permit’.
In fact, carrying other weapons in a concealed fashion is illegal if it is not a gun, though if caught you’re able to present an ‘affirmative defense’ that you actually needed to do so and were doing so in a reasonable and prudent manner. You will, of course, still have to pay court costs and the cost of retaining a lawyer if caught exercising your right to bear arms.
The whole subjectivity of this gets especially nasty if you decide to buy a cheif’s knife, and carry it home in the provided opaque box, since if it has a blade over 3.5″, this would technically be illegal.
Eminent Domain
The Fifth Amendment to the Constitution of the United States of America reads:
No person shall be held to answer for a capital, or otherwise 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 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.
As you can see in the last bit of this amendment, that the ability to seize private property for public use, such as roads, court houses, etc, is simply assumed to be a function of government. However it specifically lists that this must have just compensation, and it also requires this taking to be for the public (also often taken to mean ‘government’) use.
However recently in Kelo v. City of New London, the supreme court ruled that if a legislative branch decides to take private property in order to give it to another private entity, it is entirely appropriate.
In other words, if a company wants to put up a mall, and your city government wants to let it, so as to gain more tax benefits, they can take your house to let that company do so.
August 12th, 2007 at 8:03 pm
Huh. I thought that last bit was part of the Fourth; illegal search and seizure.
On weapon control, the very nature of weaponry has changed dramatically since the Constitution was written. The framers could not have conceived that a man could possess object on his person capable of killing dozens of people in seconds. As the laws attempted to pace technology and as interest groups tried to circumvent them, of course it became a tangled mess of legislative nonsense. This is the price of a society where Bob Nitwit is given the same freedom of speech as Dr. Bob PhD.
As to “separation of church and state”…people are stupid. End statement.
August 13th, 2007 at 12:32 am
Well put, Josh.
As to those who say it was never considered that weapons would become more terrible, a more terrible weapon is what our founding fathers probably wished for when fighting the british, and indeed, they developed more weapons, better at killing. They knew weaponry would advance, as they knew the press would as well. If we say they never considered a repeater or machine gun, perhaps even that they never intended it to be a protected object, perhaps the same may apply to our computers, our new and strange philosophies, the spread of which populates many universities and internet forums.
Statistics show that our newer, more terrible weapons, our machine guns and automatic pistols, assault weapons and whatnot, are simply not used regularily for crimes. I’ve looked for news reports of people actually using an automatic weapon, using it, not just “having it” (of which those are rare), When I do find one, I usually find in another, less biased paper or website, that the “automatic weapon” turns out to be just a semi-automatic weapon.
Even before the ban in 1989, I can’t find any quantity of reports of machine guns used in crimes, unless it was a weapon found but not used, but back then it was legal to own ‘em, same as it is now, actually. If they’re made before 1989. I do know one of the effects caused by the ban, our taxes have to go up every time our military upgrades. Civilian purchases offset the cost of research and development of newer, better weapons, allow them to sell each weapon for less money, as the laws of economy of scale take effect.
As for church and state, religion is a fundamental core of our society, something so fundamental cannot possibly be expected to be left out of our government, it’s inconceivable. Also, ours is a society that doesn’t put all its faith in the intelligentsia, we look to all people who have ideas that we deem either good or bad. We listen to good ideas, boo bad ideas, it’s why you don’t /need/ a college degree to succeed in life, (even if it helps you get your foot in the door).
That’s 2 cents worth, I think….I’ll stop now.
August 13th, 2007 at 7:11 pm
Thank you both for your comments. There are just a few parts of them to which I wish to reply.
First of all, there were knives over 3.5 inches in length which pre-dated the constitution, which could also be carried in a concealed way. These are arms which scholars such as the founders could not help but have heard of. Swords, bayonets, forester’s knives, dirks. All of these can be carried in a concealed fashion. With swords you’d either need a small specimen or a lot of work, but my point still stands. How can the government make it illegal to carry a knife over a certain length in a concealed fashion, and still have this law be unconstitutional?
Secondly, as to the ability to kill dozens of people in seconds with a weapon… that ability already existed. Take a look at swords and bows. Each of these had a far greater rate of strike than the guns of the time, and a single blow with any of them could be fatal.
The reason that guns were seen as superior to both is that while it took more time to reach bare proficiency, it did not take quite as much skill to learn to get the bullet to go where you want as it did to learn to shoot an arrow. Also, they can kill at range, unlike a sword kept in hand. Also, you could attach a dagger (bayonette) which is over 3.5″ in length to the end of said riffle to use it as a spear.
Can you really tell me that the framers never wished for a gun that could fire as fast as, or faster than, a bow while using their rifles? If they can wish for it, certainly they can imagine it.
They also had pistols in that era, which could be kept concealed. They were extremely unreliable when compared with riffles. But by the same means above, can you really say that the founders, embroiled in war, never wished for a weapon as small as (or smaller than) a pistol, with the rate of fire of a bow, and reliability above that of a riffle?
Just in case any future people wonder if the people of our time can imagine it… I am currently imagining wearing a ring on my hand that has the ability to emit a non-radiation causing blast equivalent to the power of a nuclear weapon.
August 13th, 2007 at 7:22 pm
Two points.
First, being able to imagine it and the stark cold reality of the kind of destruction you’re talking about are completely different things. Anyone can imagine death on a large scale. Those that witness it are scarred for life. These people were employing sniper tactics in war and were considered savage. The rules of engagement have changed INCREDIBLY since the Revolution, and while they certainly anticipated it they could not have possibly considered all the ramifications.
Second, the nature of the weapons and their use is not relevant to my point. Weapon legislation arises out of two opposed concepts:
The first, it is not wise, appropriate, or even sane for civilians to have access to weaponry capable of killing large numbers of people in a short amount of time.
The second, people don’t want to lose access to those weapons.
And from the squabbling between those two groups you get legislation that may or may not actually make sense or be useful in any fashion.
August 16th, 2007 at 10:01 pm
And yet, some of the highest single battle death toles were seen during the wars of that era. In fact, in one battle in the civil war, the bodies were said to be so many that soldiers had to walk across the backs of their comrades just to continue the fight.
And guerrilla war fare was well in swing in the revolutionary war. To see evidence of this, just look for information about the “Swamp Fox.”
And I don’t see how it is not sane for civilians to have access to such weapons. Just take a look at the civilian population of Switzerland. If I recall (don’t have time to find the info on it now), civilians have a fair amount of automatic weapons there as a part of their line of national defense.
Just like the constitution says that if there is a military weapon, it should be available to the civilian population so that skilled militias can be formed when necessary. This will only be necessary if we are invaded, in which case there will not be time for long term rigorous military training in how to use weaponry.
August 16th, 2007 at 10:58 pm
1939: US v Miller: the original gun control law, the NFA, was challenged by a guy by the name of Miller. The court ruled that because the defense couldn’t prove a militia or military use for a sawed off shotgun, the law was not violating the second amendment.
Current day: Shotguns of lengths less than 18 inches are used affixed to the bottoms of M4 automatic rifles as door breaching weapons and close range combat weapons.
Indeed, many of the laws passed are strange, doesn’t mean we should stick our heads in the sand and give up. What is it with the damn defeatist attitudes sweeping the nation?
August 17th, 2007 at 12:59 am
Skilled militias is an oxymoron. We have a professional military with access to billions of dollars of military hardware. If an invading force can get past that, I don’t think a handful of rifles is going to stop them. The only thing such hardware does in public possession is present a clear and present threat to the well-being of the civilians they supposedly protect.
August 22nd, 2007 at 1:36 am
Fascinating argument.
2005: The Unorganized Militia (Any male 17 to 45, and by equality laws, any female) hold off looters in a number of small towns in Texas and in bigger towns and subdivisions in Louisiana, Mississippi, Alabama, Florida.
An armed citizenry is a citizenry safe from human predators. A disarmed citizenry is ripe for the picking, see Louisiana after the governor declared a state of emergency and demanded all guns be turned over to officials.
There is no credible research, that I’ve found, that proves the argument that armed citizens generate more harm than good. Currently it is estimated (in a peer reviewed and well regarded study by John Lott), that 1.6 million times per year a firearm is used defensively, legally. That includes all the times a gun is drawn, brandished, and also includes the few times it’s fired, and the fewer times it’s used to take a life in legal self defense. Of those 1.6 million times a gun is used defensively. Gary Kleck takes us further to cite that there are from 1,400 to 3,200 justifiable homicides (self defense) per year. Of 1.6 million defensive uses of firearms, that is a remarkably small number of killings, if our hearts want to bleed for people who were intent on harming their victim this represents part of the 1% of violent crime victims who fight back with a weapon. It is estamated that non-fatal defensive shootings are up in the 200,000 per year. Normally a criminal just leaves after the gun is drawn or the first shot is fired.
Cold facts:
1,600,000 defensive uses of firearms and 1,500 legitimate defensive homicides. That is defensive usage of firearms.
Firearms are used in the commission of over 600,000 crimes each year, of which 11,000 are murders.
Citizens have a 2% mistake rate in the shooting of criminals
Police have a 11% mistake rate in the shooting of criminals.
Criminals say they are deterred by an armed citizen more than a police officer.
Now on to military hardware. I’ve looked long and hard for mentionings of military hardware being used for criminal purposes (and I’m not talking TV shows and fantasy), I’ve found a rare incident here or there, but nothing that proves automatic weapons are dangerous in the citizens’ hands, and definitely nothing that would lead me to want to ban their ownership. A short shotgun is useful in one’s home, if someone enters it, it allows you to maneuver in hallways and tightly packed rooms. An automatic weapon gives you the ability to take on a large force (if you live in gang territory, you’ll understand) and a large clip allows for longer sustained firing. Useful features when in a high crime urban area where gangs are around and life isn’t safe.
Ryvaken: I challenge you to offer any proof whatsoever that military weapons are a danger to society. Now, I won’t promise to bow down to reports you place here, I can’t in good faith just accept an argument as is, I have to check the source. I named mine, and I’ll give you a weblink or two at the end here. Gary Kleck, a renouned researcher, and John Lott, author of “More Guns, Less Crime”
http://www.gunowners.org/fs9901.htm
http://www.pulpless.com/gunclock/kleck2.html
http://www.amazon.com/exec/obidos/ASIN/0226493636/reasonmagazineA/
http://gunfacts.info/pdfs/gun-facts/4.2/GunFacts4-2-Screen.pdf
Some light reading on the subject and also a list of my sources.
August 28th, 2007 at 11:00 pm
I have little to differ with regarding Church and State, other than we live in a society where the distinction was an innovative novelty.
As for the gun control argument, all of this boils down to a fundamental question: Do you trust your fellow citizen, or not? The arguments made make classification easy to distinguish, but the implications are more difficult to trace out without sparking a worse conflagration.
August 29th, 2007 at 11:48 am
I would like to point out that if the populous were more familiar with guns used in Warfield combat, training of troops would take less time, and we would be producing a more skilled military. And currently, I think Ryv is right on something. If our military were overcome by foreign powers, we wouldn’t be able to repel the invasion without huge amounts of blood shed. Gun control is one of the reasons for this fact.
August 30th, 2007 at 7:30 pm
I definitely respect the opinions and emotional fervor of this blog. This is the reason that democracy works so well, the people to whom the issues matter most get the most wound up.
As to the 1st amendment, I believe (pun intended), along with most scholarly historians, that only a God-fearing (Not specificying or ‘favoring’ a particular religion) nation can meet the demands of personal liberty and individual freedom. Many people in the United States no longer want the responsibility that comes with it, and the crux of it is, they don’t even realize the importance of it, because they cannot see beyond themselves (interesting irony). They certainly dont realize the extent to which the founding fathers went to develop such the supernal (pun intended again) document that the Constitution is. That being said, religion–or ‘having faith’–is extemely important in validating such a government, and once the people are reduced to believing in nothing, a government such as ours has little ability to save itself from moral corruption and chaos. So yes, when DI says ‘Do you trust your fellow citizen?’, the answer is remarkably ‘NO’, and much of the explication lies in the fact that there is no *creed* to which these people look, and therefore, act completely on their firmly established primordial instinct, which by now is how the situation immediately affects THEM, as opposed to how it affects ANYTHING ELSE. Noone cares much about anything in this world unless they can come to the realization (whether it’s factually true or not) that their fate is not completely in their hands. It’s a nice way to live anyhow.
Now when I say many people in America, I mean a small percentage, because I keep hearing that most of America still believes in A ‘God’. I am pretty happy overall with people in this country, I just can’t stand those that stand to abuse the 1st amendment by questioning its motives, as most historically the ACLU does.