HOME_____BLOG _____BOOKS_____RADIO_____CLASSES_____VIDEO_____PUBLIC SPEAKER

Constitution Monitor:...............Trump...............Biden............... 2021 Congress

Wednesday, July 21, 2021

The 2nd Amendment: Defending Liberty in the Modern Age

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

It took a militia of regular folks who were willing to take arms to defeat tyranny to orchestrate and successfully administer the American Revolution in the Eighteenth Century.  Since then, technology has changed the game and politicians have been doing whatever they can to disarm the public.  When confronted with the reality that his anti-gun policies violate the Second Amendment, Joe Biden has used the same argument the liberal progressive left has used for ages; the right to keep and bear arms relates only to muskets.  When confronted about his presidential executive activities aimed at increasing restrictions on guns, and his push to ban certain kinds of firearms, Biden said of the Second Amendment, “From the day it passed, it limited the type of people that could own a gun and what type of gun you could own.  You couldn’t own a cannon…If you think you need to have weapons to take on the government, you need F-15s and maybe some nuclear weapons.”

That was Biden’s way of saying, “defense against tyranny no long applies to the Second Amendment, because you don’t have the ability to take us on.”

In a discussion last night an individual told me something similar.  After his comment that guns kill people, of which I responded, “No, bad people kill people.  Take away their guns they find another way to kill, especially since they now know their victims are not armed.”  He then went on to say that the militia argument is obsolete because if the government wants to take you out, no gun is going to save you against a drone strike.

When the United States Constitution was framed there were no federal gun laws (all of which are unconstitutional, in the first place), and none of the States had any restrictions regarding owning guns.  Some towns had regulations prohibiting open carry or concealed carry in their town, or in certain establishments, but for the most part any semblance of restrictions on arms was at a minimum; and that included cannons.  Not only could the average person own a cannon, a handful did.

Originally, understanding that tyranny rises when the public is unarmed, the Founding Fathers wanted to make sure that the public was armed, and in such a way that the number of people in the general population who were armed outnumbered the number of people that may be used in a standing army against the citizens.  This would, as believed by the founding generation, hold back tyranny and ensure the security of our natural rights and individual liberties. 

One wasn’t worried about mass shootings since, first of all we had a virtuous society so the number of people mentally capable of such atrocities was near nil, and second firearms by a single person on a shooting spree wouldn’t do so well anyway since once fired that firearm still had to be reloaded and since that was such a cumbersome activity he could be overwhelmed easily during the process.  If someone was a mass-killing type, a knife was a much more reasonable way to go about it.

That all said, today’s political games regarding gun ownership is definitely not consistent with the whole reasoning behind the creation of the Second Amendment, which was more than self-defense or personal use.  The purpose of the Second Amendment was to ensure the people could defend themselves against a rising tyranny at the government level.  Regardless of the “guns kill” argument, the primary reason for enabling people to be armed is to stave off tyrants in government.  Therefore, if that is the case, the firepower of the public should be equal to, or greater than, that of the government.

However, as Biden stated, and the individual I was conversing with yesterday said, today’s guns are no match against what the government can throw against us, be it F-15s, nuclear weapons, or drone strikes.  And, the average citizen whose training is likely “once every once in a while at the range” is no match against a professional standing army.  So, since you can’t compete, we are told, why try?

In short, the argument is that if the government turned on you, there’s no stopping them.  Even with a professional militia of tens of thousands, how does one stop a well-funded, well-equipped, modern big tech assault force complete with facial recognition technology, computerized drones, and a standing army that would be complimented by the presence of today’s version of the brown shirts, like antifa and Black Lives Matter?  Who, by the way, have no problem firing upon American Citizens.

If the government goes tyrannical, any of us who would stand against them are likely already identified, and would be dead pretty quickly.

The reality that the government has at its fingertips the ability to snuff out any uprising against it does not negate the Second Amendment argument that the whole of the militia, which includes the unorganized militia of average citizens, shouldn’t be armed.  To that point, James Madison stated regarding standing armies that a way to protect us against tyranny would be not to allow a standing army against the people to rise in the first place.

On June 29, 1787, Madison said to the delegation at the Constitutional Convention, “In time of actual war, great discretionary powers are constantly given to the Executive Magistrate.  Constant apprehension of War, has the same tendency to render the head too large for the body.  A standing military force, with an overgrown Executive will not long be safe companions to liberty.  The means of defence agst. Foreign danger, have been always the instruments of tyranny at home.  Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended.  Throughout all Europe, the armies kept up under the pretext of defending have enslaved the people.”

In other words, aside from arming the public, one of the ways to stop tyranny against the people is to not allow the military to operate on domestic lands in the first place.  Which takes us back to the first part of this whole thing; if the government has a military that is more than capable of overwhelming the populace, how do you keep them from doing it in the first place?

In the end it comes down to being a virtuous people.  Benjamin Franklin stated that “only a virtuous people are capable of freedom.”  If we are not a godly people, with godly leaders, adherence to the Constitution is the least of our worries. 

While, yes, owning a gun is an essential ingredient to the preservation of liberty, disallowing the crippling effect of the rise of tyranny in the first place is also an essential part of preserving our freedoms.  Being armed is great, but if we don’t have election integrity, and a culture rooted in the moral foundations of a biblical value system, what’s the point? 

The best defense against a fleet of drones against the populace is to have a government with enough moral integrity not to use them against the people in the first place.  Being armed sure doesn’t hurt the cause, but how many guns and how much ammunition nullifies a fleet of mechanical tools of tyranny with your face already logged into the search and destroy parameters?  If your local law enforcement has either thrown in with the tyrants, or no longer exists thanks to defunding and a federalization of local law enforcement, how long before your underground bunker is stormed and your guns are simply pried from your cold, dead fingers?

Don’t get me wrong.  When it comes to advocacy for the Second Amendment, they don’t get much more staunch than yours truly.  But, like with anything, there are so many more factors than we see on the surface.  Sure, I know our individual gun ownership is a key component in preserving liberty, otherwise the anti-gun folks wouldn’t be so adamant about their cause, and the tyrants in government wouldn’t have been freaking out over a bunch of unarmed folks visiting Washington D.C. on January 6, 2021.  And, drones or no drones, it’s hard to keep up the morale of a sick and twisted army of tyrants (of which I do not believe our organized militia or military is) when an armed populace out there begins using their guns to defend the public square against said tyranny with pop-shots and urban guerilla warfare.

Or, as the old saying goes, “An armed populace is one full of citizens, an unarmed populace is a population of subjects.”

I'll keep my guns, thank you, regardless of how many drones may be flying around out there.

-- Political Pistachio Conservative News and Commentary

Sunday, July 18, 2021

Reminder: No Classes or Meetings This Week


 Douglas V. Gibbs is spending a well-earned week out of town and so local meetings and classes will not be held, and online activities will be at a minimum.

See you next week when we crank this baby back into gear!

Saturday, July 17, 2021

Constitution Radio: Armed and Ready

Saturday's program was without the services of Mr. Constitution, Douglas V. Gibbs

Alan Myers and Dennis Jackson held down the fort on KMET 1490-AM.

Catch the podcast, which is now available, on SoundCloud.

https://soundcloud.com/kmet-1490-am/sets/constitution-radio

Thursday, July 15, 2021

Carlsbad Class: Judicial Branch Continued

Carlsbad
Health From Within Family Wellness Center
1818 Marron Rd., #103
Carlsbad, CA 92008
6:00 pm
Thursdays

For Zoom, www.1776foreverfree.com has the details

Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
 
 
 
Lesson 08
 
Judicial Branch
 
Establish Justice
 
The United States Constitution was written to establish a federal government for the United States of America. Article III establishes the federal court system. Article I, Section 8 gives the Congress the power to “constitute tribunals inferior to the supreme Court.” Given the power to establish these courts, Congress also has the authority to do away with any of these inferior courts. This power of Congress is repeated in Article III, Section 1 during the first sentence.
 
When reading Article III, one must keep in mind the fact that the article was specifically written to affect the federal court system, not the state courts. The authorities contained within this article, and the restrictions thereof, are to be applied to the federal courts, not the state courts. One must also bear in mind, as one reads this article, the additional limits placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.
 
In other words if citizens of a State sues a State, or foreign government sues a State, the case can’t go to the federal courts. The highest that case can go is the State Supreme Court. These limitations placed upon the court system by the 11th Amendment were proposed by the people (House of Representatives) and the States (Senate), and finally ratified by the States, in order to better control a federal court system that was attempting to compromise State Sovereignty. Judges, the lesson of the 11th Amendment shows us, are not the wielders of the rule of law. They are not the powerful men of honor when it comes to the law. The guardians of the rule of law are the people, and the States. The courts had proven that they can become an enemy of the law, proclaiming that their rulings are the rule of law, but as the 11th Amendment reminds us, the judges are merely men, and their system is the rule of man attempting to manipulate the law through their rulings. For their bad behavior, the people and the States judged them, and further limited them with a new constitutional amendment.
 
 
Good Behavior
 
The conventional understanding of the terms of federal judges is that they receive lifetime appointments because no time restriction is placed upon them in the Constitution. The only limitation on term placed upon the judges can be found in Article III, Section 1 where the Constitution states that judges, both of the supreme and inferior courts, “shall hold their offices during good behavior.” Conventional wisdom dictates that bad behavior is defined as unlawful activities.
 
The definition of bad behavior is not limited to only illegal activities. Judges take an oath to preserve, protect, and defend the United States Constitution, which is the Law of the Land. Bad behavior, then, from the point of view of the Founding Fathers, may also include unconstitutional actions, or failure to preserve, protect, and defend the Constitution.
 
Impeachment by Congress may be used if a judge acts in bad behavior. If a judge refuses to attend the hearing at the behest of the United States Senate, the federal marshall may be used to retrieve the judge, and compel them to stand before Congress to answer for their bad behavior. Congress is the check and balance against the courts, not the other way around.
 
 
 
 
 
Limits
 
The powers of the federal courts “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority.”
 
The federal courts, in other words, may hear all cases that fall within their authority. These cases are regarding those in which the federal government has authority, be it by laws passed within the authorities granted to the federal government by the Constitution, or regarding issues related to treaties made that have been signed by the President and ratified by the U.S. Senate. The courts may not hear cases that are regarding issues not within the authorities of the federal government.
 
A recent example would be the flurry of federal court rulings against State laws defining marriage as between a man and a woman. In California, the State’s attempt to protect the government definition of marriage was with Proposition 8. The proposition changed the State Constitution to read that marriage is between a man and a woman. Marriage is not an issue that falls under the authorities of the federal government as expressly granted by the Constitution, nor is the issue of marriage prohibited to the States. Therefore, as per the authorities granted, and not granted, in line with the 10th Amendment, the government authority over marriage is reserved to the States. Since the issue of marriage is a State issue, the case should not have gone beyond the State Supreme Court. The federal courts hearing the case regarding Proposition 8, or any of the State laws regarding marriage, are acting unconstitutionally. The governors of these States, whose marriage laws were overturned by an activist federal court system, have the right to disregard all rulings by the federal courts on this issue. The action of ignoring the rulings is a type of nullification, and States have the right to nullify unconstitutional laws or actions by the federal government..
 
Other limitations have been placed upon the federal courts as well. The 11th Amendment changed the intent of Article III. As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795. The 11th Amendment was encouraged by a federal case called Chisolm v. Georgia (1793).
 
 
Chisolm v. Georgia (1793)
 
An increasing problem with federal intrusion on the States via the federal court system culminated in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment. A citizen of South Carolina sued the State of Georgia for the value of clothing supplied by a merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case. The judges in the court system tended to embrace a nationalist view of the federal government, and their nationalist point of view encouraged the judges to deem that in the Chisolm v. Georgia case, Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia. What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.
 
Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a State by citizens of another State or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch, and the States, as being a more powerful part of government over the federal judiciary.
 
Authorities
 
The 10th Amendment to the Constitution of the United States of America states that the powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people. The federal courts are included in that, as being a part of the United States federal government. As a result of the nature of how federal authorities are granted, the federal court system can only hear cases that fall within the constitutional authorities for the federal government.
 
When one understands the importance of protecting state sovereignty, and that the courts are supposed to be very limited in their scope and power, Article III becomes much simpler to understand.
 
As stated earlier in this section, the first sentence of Article III, Section 2, reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States (which are only supposed to be passed if they are within the authorities granted by the Constitution), and Treaties made . . .
 
Notice the phrase, "arising under this Constitution." If the case is not involving the federal government as one of the parties, or is not regarding an issue that falls under the authorities of the U.S. Constitution, the federal courts can simply not take the case. The State Supreme Court, in those cases, is the highest court the case can go to.
 
 
Judicial Review
 
Federal judges maintain that the federal courts have the power of judicial review, or the power to determine the constitutionality of laws. In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important concept of the separation of powers, and other much-touted limits on power. The final arbiters of the Constitution are not the courts, argued the Founding Fathers who supported the foundation of limiting principles of the U.S. Constitution. The power of the federal government must be checked by State governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.
 
In today’s society it is commonly accepted that one of the roles of the federal court system is to interpret the Constitution, and issue rulings determining the constitutionality of laws. The Constitution does not grant this authority. The power of Judicial Review was given to the courts by themselves.
 
The first attempt to establish “Judicial Review” as an authority to the federal court system was through the Judiciary act of 1789, but the authority allowing the United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party, was limited to only the United States Supreme Court. The lower federal courts, at this point, were not allowed hear cases questioning the federal government’s “federal question jurisdiction.” Anti-federalists, and Jefferson Republicans immediately railed against the legislation, arguing that legislation cannot determine authorities granted.
 
The Federalists, in an attempt to allow the lower courts to wield the power of judicial review, briefly created such jurisdiction in the Judiciary Act of 1801, but it was repealed the following year. Unable to establish the federal court system as the final arbiters of the United States Constitution through legislative means, the Federalists turned to the courts themselves to drive into place the controversial authority.
 
During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.
 
Thomas Jefferson’s Democratic-Republicans were appalled by the appointment of the Midnight Judges, recognizing the stacking of the courts as a desperate attempt by the Federalists to try and continue Federalist influence despite their election loss. In Jefferson's view, the Federalists "retired into the judiciary as a stronghold . . . and from that battery all the works of Republicanism are to be beaten down and destroyed."
 
While Adams was still in office, most of the commissions for these newly appointed judges were delivered. However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison. Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams. In Jefferson's opinion, the undelivered commissions were void.
 
One of those appointed judges was a man named William Marbury. He sued, and the case worked its way up to the Supreme Court. After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review. Rather than simply applying the law to the cases, Marshall decided, based on case law and precedent, that the courts have the authority to determine the validity of the law as well. This opinion, however, went against all of the limitations placed on the courts by the Constitution.
 
One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government. The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to. The powers are granted by the States, and any additional authorities must also be approved by the States through the ratification of any proposed amendments. It takes 3/4 of the States to ratify an amendment. The congressional proposal of an amendment, with the ratification of that amendment, in the simplest terms, is the federal government asking the States for permission to a particular authority.
 
The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution. The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.
 
The federal courts are a part of the federal government. The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers. Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional. In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are.
 
The idea that the federal court system has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional, and is simply an attempt by those that believe in big government to gain power, and work towards a more centralized big federal governmental system.
 
 
Original Jurisdiction
 
In Article III, Section 2, Clause 2 the Constitution reads: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."
 
What this means is that in all of those above listed cases, the federal appellate courts cannot take the case. Such cases must bypass the federal appellate system, and go straight to the Supreme Court. Since one of those stipulations is in regards to cases "in which a State shall be a Party," that means that the case "U.S. v. Arizona" where the federal government sued Arizona to block the State's immigration law, was unconstitutional. It was unconstitutional for the inferior federal courts to hear the case. The Supreme Court had original jurisdiction. Therefore, when the district court ruled in July of 2010 on the case, and struck down parts of the Arizona immigration law, not only did that court not have jurisdiction to hear the case in the first place, but the very act of striking down portions of the law was unconstitutional. After all, Article I, Section 1 grants the legislative branch all legislative powers, and those powers would include the ability to strike down law. The courts were not vested with any legislative powers, and therefore cannot strike down laws, or portions of laws.
 
 
Trial by Jury
 
Article III, Section II, Clause 3 sets up the right to a trial by jury, except in the cases of impeachment.
 
This clause also requires that a trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress.
 
 
 
Treason
 
Article III, Section 3 defines treason, as well as the granting of the power by the Congress to declare the punishment. When the Constitution says that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained," it means that the punishment cannot be inherited or passed down (corruption of blood), nor shall the person be denied due process (attainder).
 
Corruption of blood also means that all inheritable qualities are destroyed, and the Founding Fathers did not believe this English practice should be an American one.
 
No forfeiture meant that despite treason, the properties of the person could not be forfeited to the government. The property would remain as property of the individual, or remain with family. Even when it came to the despicable act of treason, the founders believed that the individual should be able to retain certain rights.
 
 
Terms:
 
Corruption of Blood: Punishment inherited or passed down, all inheritable qualities are destroyed.
 
Judicial Review: The unconstitutional authority of the federal courts to review law, interpret the Constitution regarding laws, and then determine the constitutionality of laws.
 
Original Jurisdiction: In the Constitution the Supreme Court has original jurisdiction on some cases, which means the case must proceed directly to the Supreme Court, and the high court must make a determination on whether or not to accept the case.
 
Treason: Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.
 
Questions for Discussion:
 
1. How would life in the United States be different if there was no federal court system?
 
2. Why did the Founding Fathers limit the authorities of the federal courts?
 
3. How has Judicial Review changed our system of government?
 
4. Why do you think the Supreme Court has Original Jurisdiction over some cases?
 
5. In what ways is the presence of a Judicial Branch important?
 
Resources:
 
Draft of the Kentucky Resolutions (Jefferson’s Draft), Avalon Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp
 
Madison’s Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Virginia Resolution - Alien and Sedition Acts, Avalon Project, Yale University:

Copyright: Douglas V. Gibbs, 2015
 


Beaumont Constitution Class, Introduction to the Bill of Rights

 

Beaumont Constitution Class

Beaumont: 10 am, Thursday
Marla's Cocina
1310 E. 6th Street

Constitution Class Handout
Instructor: Douglas V. Gibbs

 
 
Lesson 12
Bill of Rights: Introduction to, and Incorporation of
 
Introduction to the Bill of Rights
The Bill of Rights does not guarantee your rights, nor was it designed to allow the federal government to protect your rights. The language used in the first ten amendments is clear. The 1st Amendment begins, “Congress shall make no law…” The 2nd Amendment ends with the words, “…shall not be infringed.” The 3rd Amendment begins, “No Soldier shall…” The key phrase in the 4th Amendment is “shall not be violated.” The entire Bill of Rights was designed to confirm what the first seven articles had already established. The federal government was granted only certain authorities, and for the purpose of clarity, the Bill of Rights was written to reinforce the concept that the federal government has no business infringing upon the rights of the people. The federal government is not charged with protecting those rights, or guaranteeing those rights, anywhere in the Bill of Rights. The first ten amendments were written to tell the federal government, “Hands off, do not touch, thou shalt not.”
 
The concept that the federal government exists to guarantee our rights, or protect our rights, emerged after the ratification of the 14th Amendment. The Civil War Amendment tasked the federal government with ensuring the newly emancipated slaves were treated fairly, and that their rights were protected – even at the State level. In an effort to capitalize on that idea, the courts got involved to ensure that the former slave States behaved. The southern States, the North was convinced, could not be trusted, and often the South confirmed the lack of confidence the Union States harbored with laws designed to get around the new restrictions placed upon them.
 
After the American Civil War, the three amendments proposed and ratified to protect the emancipated slaves were specifically designed for the purpose of ensuring the newly freed slaves were treated equally in the eyes of the law. Statism, however, seized upon the ideas planted by Congressman John Bingham, and through the courts worked to weave an intricate tapestry that would change the culture of the United States from a union of voluntary members, to a nation of states joined in an unbreakable union. The country no longer resembled the union of sovereign states it had once been, and instead became a nation held together by the statist consequences of the ravages of war.
 
The federal government telling States what they can and can’t do regarding our rights opens a Pandora’s Box the framers of the Constitution never intended to be breached. By allowing the federal government to dictate to the States what they can and can’t do regarding rights, even with the best of intentions, the precedent is established allowing federal control. A federal government that can force a State to behave in an acceptable manner can later dictate to a State to follow a federal mandate designed to reduce your access to your rights.
 
As President Gerald Ford once wisely said, “A government big enough to give you everything you want is a government big enough to take from you everything you have.”
 
A significant segment of the Founding Fathers believed the Bill of Rights to be unnecessary. The first seven articles of the U.S. Constitution were written in such a way that the concerns of the Anti-Federalists had been addressed, but they still feared that the federal government would compromise the natural rights of the citizens if a Bill of Rights was not included in the Constitution.
 
The Constitution was written in a manner that allowed the new federal government only the authorities granted to it by the Law of the Land. Regarding arms, for example, the possession of guns was never an issue granted to the federal government in the first seven articles of the U.S. Constitution, therefore the federal government had no authority to restrict guns in any way, shape, or form. The Anti-Federalists, however, did not believe the federal government would abide by the limitation of authorities placed on the United States Government, and demanded that a Bill of Rights be written. Failure to provide a Bill of Rights, indicated the Anti-Federalists, would result in a failure of those States dominated by Anti-Federalists to ratify the new Constitution.
 
The Framers of the Constitution, understanding that without the critical approval of the Anti-Federalists, the new Constitution would never be ratified, agreed to include a Bill of Rights. James Madison was asked to gather the amendments to be proposed and potentially ratified by the States, and use them to write a Bill of Rights.
 
Originally, there were a large number of amendments proposed, but the final proposal that went to the States for ratification was narrowed down to twelve amendments. Only ten were ratified. Of the remaining two, one regarding apportionment remains unratified, and the other became the Twenty-Seventh Amendment in 1992.
 
The debates over the adoption of the Constitution found the Anti-Federalists fearful that as drafted, the Constitution created a central government that may have the opportunity to become a tyranny. These fears were based on the memory of the British violation of basic civil rights before and during the American Revolution. With past British tyranny as a frame of reference, the Anti-Federalists demanded that a "bill of rights" be written that would clarify without question the immunities of individual citizens. Though the amendments of the Bill of Rights were not proposed until 1789, several state conventions during their ratification conventions ratified the Constitution with the understanding that the amendments would be offered.
 
One of the fears regarding the proposal of the Bill of Rights was that by trying to protect specific rights, it might imply that any unmentioned rights would not be protected. It was believed by many that as a result, the Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not defined, nor quantified. Adding a Bill of Rights to the Constitution may actually limit the rights of the people to those listed in the Constitution. As a result of this argument, included in the Bill of Rights is the Ninth Amendment, which indicates that rights not enumerated would also be protected.
 
Another argument against the Bill of Rights is that the ten amendments muddy the waters of the Constitution, because the first seven articles were designed to grant authorities to the federal government, and if an authority is not granted, the federal government does not have that power. The Bill of Rights tells the federal government what it cannot do. This enables those who oppose the Constitution to claim that the Constitution does not only grant express powers. By focusing on the Bill of Rights, the opposition responds to constitutional challenges with the question, “Where in the Constitution does it say the federal government can’t do that?” Considering the Bill of Rights was not even necessary, this provides unnecessary ammunition to those that oppose the Constitution.
Terms:
Anti-Federalists - Opposed to formation of a federal government, particularly by adoption of the Constitution of the United States.
 
Arms - Weapons, firearms; a gun that may be used for protection of property or as part of a militia.
 
Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.
 
Common Law - The part of English law that is derived from custom and judicial precedent rather than statutes, able to be changed by the whims of the governed, or their representatives.
 
Enumerated - Counted or told, number by number; reckoned or mentioned by distinct particulars.
 
Questions for Discussion:
  1. Why does the Constitution offer the opportunity for both oaths, and affirmations?
2.   Why did some of the Founding Fathers consider the Bill of Rights unnecessary?
3.   What did the Anti-Federalists think of the creation of the federal government? Why?
4.  Why were the Founding Fathers willing to add the Bill of Rights even though they believed the
      amendments to be unnecessary?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)
 
The Charters of Freedom: The Bill of Rights, National Archives and
Records Administration: http://archives.gov/exhibits/charters/bill_of_rights.html
 
Incorporation of the Bill of Rights
The Bill of Rights was originally intended to be applied only to the federal government. Even the most ardent opponent to the originalist view of the Constitution concedes that it is commonly understood that originally the Bill of Rights was not intended to apply to the States whatsoever. The text of the U.S. Constitution does not necessarily clearly exhibit that the Bill of Rights was only intended to apply to the federal government, but a deep study of the text of the first ten amendments, and the various writings of the Founding Fathers on the topic, reveals without a doubt that the Bill of Rights was indeed originally intended to only apply to the federal government.
 
Though even the most ardent opponent of the United States Constitution will admit that the Bill of Rights was originally intended to only apply to the federal government, the rule of inapplicability to the States was abandoned by statists after 1868, when it became argued that the 14th Amendment changed this rule, and served to extend most of the Bill of Rights to the States.
 
The section of the 14th Amendment that has been interpreted to extend the Bill of Rights to the States comes from the second sentence of Section 1 of the 14th Amendment, which reads:
 
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
 
Through a series of court rulings, the Supreme Court has changed the Constitution by applying parts of the Bill of Rights to the States. The process over the time period since the ratification of the 14th Amendment which works to apply the Bill of Rights to the States through court rulings and written opinions is called “The Incorporation of the Bill of Rights.”
 
The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights.
 
Why not apply these amendments to the States as well?
 
The States already had a Bill of Rights in their own State Constitutions (and those that did not have a constitution yet, did include a Bill of Rights later). The Founding Fathers were confident that the people of the States could control their own State officials, and would be involved in their local governments. The people did not fear their local governments acting in a tyrannical manner similar to the potential of a centralized government system. Their fears were of the new and distant central government.
 
Originally, parts of the first amendments proposed by James Madison did in fact address the States, seeking to limit the State governments with provisions such as, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." The parts of the Bill of Rights that sought to be applied to the powers of the States, however, were not approved by Congress, and therefore were not a part of the proposed amendments to the States.
 
The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the 14th Amendment, the Bill of Rights did not apply to the States, and was never intended to be fully applied to the States.
The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and property which in turn are considered to be God-given and unalienable, then State governments do not have the authority to infringe on those rights any more than can the federal government.
 
The argument, however, simply suggests that the Bill of Rights ought to apply at the State level, not that it originally did.
 
If the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the State level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally.

This returns us to the argument that the 14th Amendment is the source and authority of the incorporation of the Bill of Rights to the States. The Supreme Court's first ruling regarding the scope of the 14th Amendment, and if the amendment enables the Bill of Rights to be applied to the States, was rendered in the Slaughterhouse Cases just five years after the ratification of the 14th Amendment in 1868. A five to four vote by the high court interpreted the Privileges and Immunities Clause to be the authority they needed to enforce The Bill of Rights against the States. Subsequent cases also used the 14th Amendment as an authority for incorporation. During the early twentieth century a number of court cases, using the arguments referencing the 14th Amendment, began selectively incorporating some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.
 
The courts, through this process of incorporating The Bill of Rights to the States, have changed the Constitution through unconstitutional means, and against original intent. As originally intended, all provisions in the U.S. Constitution apply to the federal government, unless otherwise noted. The Bill of Rights was originally intended to apply only to the federal government, and if we are to remain in line with the original intent of the Founding Fathers, State sovereignty must remain protected by that original intent.
 
Congressman John A. Bingham of Ohio was the primary author of the first section of the 14th amendment, and it was his personal intention the Bill of Rights be applied to the States as well. His argument was that it was necessary in order to secure the civil rights of the newly appointed slaves. However, most of the representatives during the five months of debate on the floor of Congress argued against incorporating the Bill of Rights to the States, and so when the amendment was agreed upon for proposal, the majority of those involved intended for the 14th Amendment to not influence how the Bill of Rights was applied. In the beginning, the courts ruled that the Amendment did not extend the Bill of Rights to the States. It was after the realization that Black Codes were emerging in the South that the courts decided for the purpose of protecting the civil rights of the emancipated slaves, they would begin to apply parts of the Bill of Rights to the States.
Terms:
Black Codes - Laws put in place in the United States after the Civil War with the effect of limiting the basic human rights and civil liberties of blacks.
 
Incorporation of the Bill of Rights - The process through court rulings based on the interpretation of the 14th Amendment to apply the Bill of Rights to the States.
 
Judicial Activism - When judges violate the Separation of Powers through their rulings; when a judge rules legislatively by modifying or striking down a law using the unconstitutional authority of judicial review.
 
Original Intent - Original meaning of the United States Constitution as intended by the framers during the Federal Convention of 1787, and the subsequent State Ratification Conventions.
 
Originalist view of the Constitution - View that the Constitution as written should be interpreted in a manner consistent with what was meant by those who drafted and   ratified it.
 
Questions for Discussion:
 
1.   Why is the originalist view of the Constitution so important?
 
2.   How have Statists changed the Constitution through the courts over the last two hundred years?
 
3.   What is the only legal way to change the Constitution?
 
4.   Why is the Bill of Rights not a guarantee of individual freedoms?
 
5.   From where do our rights come from?
 
6.   How did the Black Codes play a part in the incorporation of the Bill of Rights?
 
Resources:
 
14th Amendment to the U.S. Constitution: Civil Rights (1868), Our
Documents dot gov: http://www.ourdocuments.gov/doc.php?flash=true&doc=43
 
Intent of the Fourteenth Amendment was to Protect All Rights (argument
supporting incorporation of the Bill of Rights to the States), Constitution dot org (2000): http://www.constitution.org/col/intent_14th.htm
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Five – Amendments 1-12; Indianapolis: Liberty Fund (1987)
 
Richard L. Aynes, On Misreading John Bingham and the Fourteenth
Amendment (1993): http://www.constitution.org/lrev/aynes_14th.htm
 
The Fourteenth Amendment and Incorporation, The Tenth Amendment
Center (2010): http://newyork.tenthamendmentcenter.com/2010/05/the-14th-amendment-and-incorporation/
 
To Whom Does The Bill Of Rights Apply?, Lew Rockwell dot com
(2005): http://www.lewrockwell.com/browne/browne27.html
 
What is the Bill of Rights?, About dot com Civil Liberties (argument
supporting incorporation of Bill of Rights to the States: http://civilliberty.about.com/od/historyprofiles/f/what_is_bill.htm