The Third Amendment

For those of you old enough to get the reference, the Third Amendment is kind of the Rodney Dangerfield of the Bill of Rights - it gets no respect, no respect at all...  This is probably the least-well-known (which is bad) and least-litigated (which is good) of all the amendments.  A quick reading will probably tell you why:



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.

Pretty simple, isn't it?  The government can't use your house to quarter troops.  They need to find their own shelter.  Seems rather silly, doesn't it?  I mean, has this ever happened to you or to anyone you know?  No, it has not.  This amendment has never been tested or ruled on by the Supreme Court, though it has been referenced from time to time as supporting evidence for a more general "right to privacy", but that seems a bit of a stretch, if you ask me.  Lawsuits have been filed that have alleged Third Amendment violations, but none have been found to have enough merit to actually make it to the Supreme Court.

So, why is this even in the Bill of Rights?  Remember, during colonial times, the British would essentially commandeer people's houses for their troops.  After all, why go to the effort and expense of building barracks when yo can just "appropriate" already-built houses and demand food and shelter, in the name of the King?  Thomas Jefferson addressed this problem in the Declaration of Independence:

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
and:
For Quartering large bodies of armed troops among us.

The Bill of Rights was in some cases as much a  reaction to the previous actions of the British as it was to the worries about the new American government, and this seems to be one case.  Could this amendment ever come into play in the modern U.S?  Theoretically, of course, but Congress would have to pass a law authorizing it (which would be a tough sell).  Also, the modern U.S. military is so mobile and has such great capabilities of its own for feeding and sheltering itself, it makes the idea of using civilian housing this way rather a moot point.  Perhaps in the case of an enormous disaster, it could happen, but then again, look at the previous disasters (Katrina, Sandy, et al) - civilian homes were unusable, anyway.  Not to say this could never happen, but among all the amendments and provisions of the Bill of Rights the government could violate, this seems the least likely.  Sadly, it seems this poor little amendment has been relegated to the status of "great trivia question".  Sleep soundly in your home.

The Second Amendment

I have no hard data to back this up, but my sense is, if we were to rank the amendments to the Constitution in the order that they have inspired controversy, debate, litigation and indeed anger, the First and Second Amendments would likely be numbers one and two, and I'm not sure in which order.

Last time, we went through the First Amendment and its limitations on both the government ("Congress shall make no law...") and on those who exercise these rights (no yelling "Fire!" in a crowded theater, libel and slander laws, etc...).  I think we can agree that, at least Constitutionally speaking, there are no absolute (that is, no limits whatsoever can be placed on them) rights.  But in order to place any limitations on rights, the government must demonstrate exceptionally compelling reasons for doing so.

That said, let us move on to the Second Amendment and begin with the text:

"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."

Clearly, the amendment protects the right of individuals to have arms for their own private, lawful uses.  Simple enough.  Next topic...

Oh, wait - I see some of you are not convinced.  Well, the Supreme Court sees it this way, as well (Heller and MacDonald decisions - both very recent).  In fact, the Supreme Court really didn't weigh in on the question until the Heller case in 2008, when it ruled that the Second Amendment does protect an individual right to "keep and bear arms".

"But Mr. Madison blogger," you say, "how can that be?  It says right in the amendment 'a well-regulated militia'.  So, doesn't that mean that only people in the National Guard or other military are covered by this?"

I see we have some work to do.  Let's begin with the basics.  First of all, we see that this amendment is in The Bill of Rights.  Remember, that this set of amendments was specifically written to limit the federal government's ability to infringe upon the natural rights of the citizens.  It did NOT grant rights - it protected rights already already understood to be inherent in every citizen.  If the right to keep and bear arms is not an individual right, but some "collective" right, based on membership in the military, it would not need to be in the Bill of Rights, as there is no need to guarantee a right to be armed for someone in the army!

Second, the use of the word "right" in the Constitution is always used in the context of an individual right.  It is never associated with any federal governmental entity or function.  The Founders were quite aware, and wrote their words specifically to show, that only people have rights.  Governments do not.

But what about this whole "militia" business? you ask.  The first clause is what is called a prefatory clause.  It announces a purpose (but not necessarily the sole purpose) of the clause to follow, which is called the operative clause.  In other words, the operative clause by itself ("the right of the people to keep and bear arms shall not be infringed") can stand on its own as a complete thought, but the preceding clause cannot.

But who are "the militia"?  In the context of the time, it generally referred to free males of military service age who could be organized to bear arms for whatever purpose was necessary.  Many of the Founders were leery of a standing army (because of the British experience - and that experience found its way into the next amendment, as well), but they knew there could not be complete lack of armed men in case of emergency (including their own national army turning on them, in an extreme case).  Again, that was a reason for the amendment, but not the sole reason.  Congress already had the power to raise armies (Article One), so there was no reason to add an amendment simply to say "the people" could raise more armies.  In any case, the amendment does not say "The right of the militia to keep and bear arms" - that would be ridiculous - it says "the people".  Remember how precise these men were with their words.

Now, in the spirit of fairness and giving a hearing to other possible interpretations, let us assume for a moment that the national guard reading holds some water.  As a 21-year national guard veteran, I can state categorically that I did not have a right to keep and bear arms as a guardsman.  In fact, I had no right at all to even be IN the guard.  I could have been rejected for service for many reasons, but once in, I still had no right to carry a gun.  I may have had a duty to do so, but a duty is not a right.  Very different concepts.  There are numerous military specialties that do not require the bearing of arms and even a couple that are specifically prohibited from doing so (chaplains, medics).  Remember, too, that as a military member, I am acting as an agent of the government, and as we have already established, governments have no rights, only people do.  There is simply no Constitutional right to bear arms while serving in the military, so once again, that interpretation just doesn't work.

OK, but aren't there - or can't there be - limits?  Of course there can be, and are.  There are more than 20,000 federal, state and local laws dealing with firearms alone (to say nothing of other types of  "arms" like knives, bows, explosives and so on).  Much as I might like to, I can't own a fully-armed M-1 Abrams tank or an A-10 Warthog fighter or a B-52.  Despite what you may have heard in the media, I can't own an actual assault rifle without extensive background checking and special licensing.  Felons and minors aren't allowed to own guns.  Most of these restrictions aren't particularly controversial.

So, then, where does the controversy lie?  Just like in First Amendment issues, the question is not whether the government can place certain restrictions on the rights guaranteed in the amendment, but to what extent.  Where is the line drawn between what lawmakers might say is a compelling government or public interest and the rights of the individual?  Is that line fluid, changing over time?  Who actually gets to determine where that line is - the Congress?  The President?  The Courts?

My sense is that, just like the First Amendment, we have seen nowhere near the end of the controversy surrounding the Second.

The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress ofgrievances."

Sounds simple - "Congress shall make no law..."  Congress shall not impede our right to speak, assemble, worship or petition the government.  What could be controversial about that?  Well, as I put forth a couple blog entries ago, is there in fact an absolute right to any of these things?  Can I truly speak, write, assemble or worship without restriction?  What, if any, restrictions can - or should - the government put on these rights?  And if the government can restrict them, can we truly call them "rights"?  Difficult questions, my friends...

Of course, the answer is no, there is not in our country an absolute right to any of these.  Most famously, this does not give one the right to shout "Fire!" in a crowded theater.  Generally speaking, one's right to do x ends when it infringes on another person's rights.  Your right to shout "Fire!" is subordinate to my right not to be trampled in a panic.  My freedom to speak my mind ends when it truly injures (not merely offends or insults) you, which is why we have libel, slander and perjury laws, in effect codifying the "Thou shalt not bear false witness..." edict of Ten Commandments fame.  We do have what most would consider "reasonable restrictions" on these right, but what is "reasonable"?  Is it reasonable to remove certain books from public libraries?  How about school libraries?  How deep can the government penetrate into my own affairs for the "common good"?  Excellent and difficult questions, all.

We could bring up a million case studies about various aspects of the First Amendment, so let's narrow our focus and look at a current event and talk about how the First Amendment applies.  There is a pending Supreme Court case involving the retail chain Hobby Lobby.  The store has filed suit under the First Amendment challenging the Affordable Care Act ("Obamacare") mandate to provide contraception coverage under their employee insurance plan.  The owners of the company maintain it is a violation of their religious beliefs to do so, as artificial contraception is counter to their faith.  The government, on the other hand, says that a corporation is not a person, so the First Amendment protections don't apply, especially to a secular business.  (By way of comparison, the Supreme Court just issued an injunction exempting an order of Catholic nuns from the mandate.  One might ask why the government thinks nuns would need contraception in the first place, but that's not really the point...).  Churches and houses of worship are exempt from the mandate,  but businesses affiliated with them are not - a Catholic church is exempt but a Catholic hospital is not, for instance.  So the question is - at what point does one's freedom of religion stop?  At the door to the business?  When you step outside your front door?  When you hire people who may be of a different faith background than you?  Or does it ever stop?

Again, we have certain restrictions on all of these rights - we can't yell fire in the theater as an expression of free speech; we can't hold human sacrifices as part of freedom of religion; we can't have a violent riot as freedom to assemble (though note that the amendment specifies "peaceably to assemble").

The First Amendment seems so very clearly written, but as with the Bible, the difficult part is in the interpretation.  Going through all the possible permutations of it can - and does - fill thousands of volumes of legal argument, theory and history.  How much can the government restrict these rights, and under what circumstances and to what end?  (These questions also apply to subsequent amendments and will be discussed there, as well.)  If there are to be restrictions placed on my right to speak my mind or practice my faith, what compelling reason must there be for doing so?  I would argue that there must be an actual threat of harm to another before restrictions can be enforced, not mere inconvenience or embarrassment or disagreement.

To take it a step further, can these freedoms be applied to new technologies that the founders (except maybe Ben Franklin) never dreamed of, like TV, radio, telephone and internet?  Clearly, we do accept that these new media are covered under the First Amendment.  No one would seriously claim that "freedom of the press" applies only to those who own and operate a physical movable-type Gutenberg-style printing press.  But with new technology always comes new issues.  Still, the Founders were wise enough to know that times and technologies would change and they wrote the Constitution in general enough terms to be durable for the long run, yet specific enough to be useful in everyday life.

Pure Genius.  Discuss.

Next up - The Second Amendment

An Educational Interlude

Happy New Year, Madisonians!  It's been entirely too long since my last entry.  Perhaps this severe winter weather has sapped my motivation, but it's time to crank it back up.  My last post was an introduction to the Constitutional Amendments, and I'll get to that next, but first, a pitch for further education.

I hope you've found this blog at least somewhat interesting and thought-provoking, but I also hope it's been educational.  Still, I'm no world-class expert on the Constitution, so I thought I'd bring some in to help you deepen your knowledge and appreciation of the Constitution.

I was the fortunate recipient of a couple of great gifts recently that I'd like to pass on to you.  My parents took an educational trip to Virginia a couple months ago and one of the stops was, of course, Montpelier, Madison's home.  The magazine they brought home for me included information on the Montpelier web site, which has a fantastic educational section.  They have free online courses you can take to further your Constitutional education (and why not learn from the master, right?).  For any of you who are teachers, these courses can earn you continuing education credits (a small fee is required to get the certificate).  You can access it here:

http://learn.montpelier.org/courses_and_exercises

They also underwrite an excellent weekly radio show called "Your Weekly Constitutional" that you can access here:

http://www.montpelier.org/center/radio

I listen to it on podcast religiously and strongly recommend it.

Another fantastic online program is offered by Hillsdale College.  Their free online offerings include two courses on the Constitution, two History courses and a new one on Economics.  I've done the two Constitution courses and can recommend them with the greatest enthusiasm.  Their courses generally consist of around ten lectures by their professors (each about an hour or so video), lots of links for further study and quizzes to test your retention and comprehension.  Again, these courses are free (they will ask for a donation, but it isn't mandatory) and you can find them here:

https://online.hillsdale.edu/home/register

Finally, my wonderful wife gave me an excellent book, "The Liberty Amendments", by Mark Levin.  Many of you may know Mr. Levin for his talk radio show.  He is also a lawyer who graduate summa cum laude and Phi Beta Kappa from Temple University and is President of the Landmark Legal Foundation.  His book deals with the out-of-control growth of the federal government - far beyond what the Framers could have imagined, or feared.  Whether you identify as Left, Right, or Center, I think the evidence for a far-too-large federal government is beyond question.  Levin proposes amendments to the Constitution to remedy much of what he identifies as the worst of the problems.  Again, you may agree or disagree with him, but his proposals are worth hearing and definitely worth discussing.  The Number One question I guess I would ask is: "If the government is so big and out of control and far exceeding its Constitutional mandates (that is to say, if the people who are supposedly representing us are far exceeding their Constitutional authority), how would more amendments really help?"  Normally, I'd say this kind of book isn't a "beach read", but I in fact read this while soaking up some sun on a Hawaii beach, so there you go...  I thought this book would be an appropriate recommendation as we begin to discuss the Amendments, starting in the next blog entry.  The web page for his book is here:

http://www.marklevinshow.com/common/page.php?pt=The+Liberty+Amendments&id=4183&is_corp=0

The Amendments - Introduction

After a contentious battle to ratify the Constitution, hard questions remained in the minds of many, specifically the Anti-Federalists, led by Patrick Henry, Samuel Adams, Richard Henry Lee and Elbridge Gerry.  They were wary of a too-powerful federal government and wanted assurances that certain personal freedoms, liberties and rights would be protected.

Federalists, on the other hand, notably James Madison and Alexander Hamilton, did not initially see the need for a "bill of rights", being convinced that the states themselves would be sufficient to check the power of the federal government.

Several states, including Massachusetts, New York and Virginia, linked their ratification votes to the inclusion of such a bill, and eventually many of the Federalists came to support it.  In the first Congress, James Madison himself became the primary author of the set of amendments.  After another lengthy set of debates, where amendments were added, deleted and amended themselves, the final bill of rights was announced by Secretary of State Jefferson as being adopted as a set of ten on March 1, 1972.

We have talked before here about the necessity of amending the Constitution and here about the process for doing it.  Let's talk now about the actual intent and content of Amendments that have been ratified.

Generally, the main body of the Constitution is not terribly controversial (thought the every-four-years exercise of presidential elections always re-ignites the debate over the Electoral College, discussed here.  The amendments, however, and the first ten in particular, continue to plague us with controversy.  I would venture to say that Amendments 1, 2, 4, 5 and 10 have sparked more debate, follow-on legislation and lawsuits than the rest of the Constitution put together.  I have no empirical data to back up that claim, but it sure seems like it.

Before we dive into the specifics of each amendment (read the Bill of Rights here now - it'll only take a couple minutes), let's consider a couple big questions to keep in mind as we discuss them:

1.  Is there an absolute right to anything, without restriction?

2. Does the Constitution (and therefore, the federal governments) grant rights, or is its function to protect them?  There is a critical difference between the two ideas.

Discuss.

Next up - The First Amendment

Debt, Supremacy, Oaths and Ratification

Article VI of the Constitution, called "Debt, Supremacy and Oaths", is mostly an administrative, rather than structural, section.  Put simply, the first paragraph declares that all debts and contracts entered into by the Confederation shall also be valid with the newly-formed United States, ensuring those countries and other entities to which the former Confederation owed money and other obligations would have their conditions met.

The second paragraph declares that the Constitution, along with any amendments or treaties made under its auspices, shall be the supreme law of the land, not to be overruled by any state or local law, and that all judges and justices must defer to the Constitution at all times.

Finally, the third paragraph obliges all elected officials "...shall be bound by Oath or Affirmation, to support this Constitution..." and that no religious test of  any sort shall be administered or required for anyone to hold elected office or position of public trust.

Article VII sets forth the conditions for ratification - nine of the states must ratify it in order for the Constitution to take effect, and essentially, for the United States to in fact exist as a new nation.  On September 17, 1787, the Constitutional Convention concluded with the signing of the document by the delegates, and the ratification process was set in motion.  Almost immediately, The Federalist Papers began to appear, authored by Alexander Hamilton, John Jay, and this blog's namesake, James Madison.  By December of 1787, three states had ratified the Constitution already (DE, PA, NJ) and by early February, 1788, three more (GA, CT, MA - and Massachusetts by an extremely narrow margin! ).  In April and May, MD and SC added their approval and NH's vote in June made the required nine states to ratify.  VA and NY, both in excruciatingly tight votes, came on board in June and July.  NC voted to ratify over a year later, in November of 1789 and RI, by a margin of two votes, weighed in the next year, in May of 1790.  Finally, in January, 1781, VT made it unanimous.

We had a nation, all the states were on board (to one degree of enthusiasm or another), and George Washington had been installed as the first president.  So, the job was now finished and everyone was happy, right?  Not so fast - the Bill of Rights was far from a done deal.

Up next - the Amendments to the Constitution...

Happy Birthday To Me...and Us!

I'm here in Philadelphia on July 3rd - almost perfect timing!  But it's a good time to split the difference and wish America a Happy Birthday tomorrow (July 4th) and this blog a Happy Birthday yesterday (July 2nd).  The purist in me still maintains that our country's "real" birthday is September 17 (the date the Constitution was adopted and sent to the states for ratification).  Still, the Fourth of July is as good a date to celebrate as any.  I'd encourage all of you to read the Declaration of Independence today, just to remind yourself what it says and why it was written.  Here's a link for you if you don't have your own copy handy:

http://www.archives.gov/exhibits/charters/declaration_transcript.html

I know this is a blog primarily about the Constitution, but the Declaration was the first serious "shot across the bow" at the British and helped give the colonists the rallying point (not to mention some good talking points!) for the Revolution.  It really didn't establish anything in terms of a new government, but was simply what it says - a declaration "That these United Colonies are, and of Right ought to be Free and Independent States".  Think back to the immortal words Jefferson wrote:

We hold these truths to be self-evident, that all men are created equal..

...they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Excuse me, it just gives me shivers, reading such brilliant work...

So, this Independence Day (not merely "The Fourth of July"), think back to what the Founders were going through - their thoughts and feelings and the way they lived.  Then think ahead to the government they established a very tough eleven years later with the Constitution.  It's easy to get bogged down in the day-to-day nonsense we all too often see from our government at all levels.  Still, show me a better, longer lasting and more durable system.  Enjoy it and celebrate it today!