Defending Absolutes: Constitutional Intent

Today we look at the United States Constitution's history and a few of the (most, in my opinion) important Amendments...strap in!

"[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse." -Thomas Jefferson

"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." -Amendment I

"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." -Amendment II

Intro

Today's topic is a powerful and also intricate one. It's also perhaps my longest piece to date, though I haven't done the word count yet. Hah. I empore you to read it carefully (please excuse my tangents!) and fact check me - we must keep each other honest!

The Constitution and Bill of Rights (collectivizing the first 10 Amendments) were ratified into law on May 29, 1790. This document consolidated a new attempt at freedom and equality from governmental abuse. This after centuries of British monarchical colonial rule that weighed heavily on the young American idealists seeking, for the most part, religious freedom from the Church of England. They did not create new rights by fiat of government, but wrote down those rights that were specifically protected FROM government to attempt to ensure tyranny never again threatened a free people. This is a subtle perspective that most miss, that the constitution doesn't GIVE rights. It specifically outlines intrinsic HUMAN rights in order to protect freedom. It was not and is not without flaws, some rather egregious* ones I think, but the intent was sound.

The incendiary time of the Revolution made crystal clear the need for a document limiting the scope and authority of government and protecting freedom for all. They knew full well it wouldn't be easy to make such a document iron clad but did their best; ensuring via the Amendments provisions for itemizing those most important ideals. It was an imperfect document that initially sought mainly to protect against a tyrannical government such that had just been defeated. It has since been added to and changed, though by design that process is extremely difficult - requiring three fourths of the States to change. Today that means that 38 of the 50 States must ratify any change to the Constitution AFTER a super majority of Congress (House and Senate) has approved/initiated it.

The rights that were laid out are written to specifically point out what cannot be violated so as to ensure a continuance of the "Great Experiment." It was out of an abundance of trepidation and caution that the Constitution and Federal government was even CREATED, many having such grave concern for State's rights that the process was long and challenging.

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Part I

First and foremost the Right to Free Speech was held to be most important. When a people cannot speak without fear they cannot be free. This has been challenged and limited over the years as people seek to remove that right from others. It is fundamentally vital to be able to "offend" or to be "offended" as this must happen in the course of enlightenment. However, it's often said incorrectly that the ill-defined "hate speech" is not protected by the 1st Amendment. This is incorrect. There is no constitutional voice or definition to this subject. Webster defines it as:

Speech expressing hatred of a particular group of people.

This seems overly simplistic but I think we all have a ballpark idea of what it means. But how does that stack up against a legal definition?

The Supreme Court has weighed in on it many times, utilizing the Brandenburg Test in several cases to determine whether speech was an ACTUAL call to violence or simply vocalizing of thoughts and opinions. Even there it's been abridged too far in my opinion, as Sedititious speech is not protected yet that is precisely part of what SHOULD be protected. However, to bring the conversation to the present, most recently the Supreme Court heard "Matal V. Tam" in June 2017. This most recent case is highlighted as shown in Justice Alito's affirming opinion:

[The idea that the government may restrict] speech expressing ideas that offend....strikes at the very heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

This is classical Liberalism and a reminder that while something may be offensive, you dont have the right not to be offended. In other words, your right to not be offended is not given more weight than your right to offend. Ideally this means in the course of rational debate and discourse and the seeking of your own intellectual enlightenment, but must by definition extend to the baser and more crass means of conversation. If you cannot speak your idea you cannot have that idea challenged in discourse. I am not advocating hateful speech nor am I equating hateful speech to elevated discourse but I am saying that when you start restricting any speech it's a very very slippery slope to that eventuality because a precedent has been established.

What, then, is the parallel between the First and Second Amendments and why are they connected?

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Part II

Simply, yet unimaginatively, the 2nd guarantees the 1st.

The 2nd Amendment was born directly out of a need to defend against and rise up against a tyrannical government. This was the most crucially important reason but not the only USE. Below are a few other important uses for firearms (not to conflate with original intended purpose) and some expounding below:

Sport/target shooting
Hunting/survival
Immediate personal self defense and defense of others
Defense against a tyrannical government
It is not constitutionally sound in my opinion to say that the right to shoot targets or hunt is protected by the intent of the Amendment, these are harmless non-threatening activities that would have made no sense to outline or specifically protect. Instead the intent was to ensure that protection against an overreaching government was in place if the other protections failed (the right to vote and speech, as examples). Countries that lack those protections DO often turn on their people - look at the recent demonstrations in Iran, at North Korea, at even Canada as they enact speech laws. When the government does not listen to the people by voting, speech, protest, etc and instead seek to silence dissent...THAT is when and why the 2nd Amendment was written.

Perhaps the Framers thought about the Boston gun confiscation attempt in 1774. That attempt to remove or destroy "rebel" weapons stores was foiled by the oft-Revere'd story (pardon the pun) following the Boston Tea Party. The creation of a formative Massachusetts government to oppose British rule led to Mass being labeled Rebellious and targeted with extra British troops to quell it. This ultimately led to the beginning of the Revolution and the expelling of English rule over America. To ultimately resist a tyranny one must have tools to do so - in the case of the Revolution it was farmers and boys that picked a fight with the greatest superpower the world had ever known. Then they beat them, albeit with the help of France at the very end.

This was accomplished with weaponry and tactics that were vastly inferior to those they were fighting opposite to - and yet resolve and outside the box (along with some battlefield acquisitioning) thinking led to a legitimate contender and victor against the British. Not to dive into the weeds too much on technical points here: I'm not saying every person should have a tank or a missile, (though they should if they want one) but that the notion that an under-armed and under-equipped, and trained militia can't respond effectively against a superior force is an error in historical perspective. Perhaps another time I'll get into the actual technical argumentation.

The secondary and obvious next protection intended by the 2nd Amendment was for self defense. In the 1700s this really only realistically meant against animal attack and perhaps marauding native Americans for which the standard muskets/muzzle loaders and primitive shot guns were adequately effective, evem if not entirely preventative. It was with these crusty, rusty, and inferior weapons that colonials fought against the fine tuned but inferior bow and arrow and spear weapons deployed by expert native Americans and later against the British. It did not stop the natives entirely, they kept trying to defend against what they saw as an invasion as well, and did so with incredibly savage effect. It wasn't until the mid 1800s and the arrival of the repeater rifle that the native Americans were driven back with unfortunate finality. Back to the larger point about self defense. One must couple intellect and technology equal to the task of defending oneself properly. This is laid out in the charge to defend yourself with enough force to stop an attacker - but not to punish. This may require a firearm as it's commonly used to attack with. It almost certainly requires the ability to deploy MORE force than presented with, and yet holding back if possible. We should only seek to defend against and stop an attacker - never punish. That is not for us to decide.

Your right to continue your existance and life is fundamental and, while enumerated in the Bill of Rights, is intrinsic and exists without being needfully written down. It WAS written down to highlight its necessity and to protect against government overreach. It is not the responsibility of anyone else to protect your life - the predictable argument to that statement is "what about the police?" There have been at least two landmark court cases that specify that the police do NOT have a duty to protect your life, but merely to investigate crine after the fact or protect society as a whole (by virtue of presence mainly). These cases are outlined in "DC Appellate court Warren v. DC 1981" and the SCOTUS decision in "Castle v. Gonzalez 2005". So the onus of your own safety is in fact on YOU. This requires a cognitive and continuing effort for you to be aware of and take measures to protect yourself - It can be as simple as locking your door and having pepper spray to hiring your own private security. It's entirely a personal choice but there is no morality or high ground in being a victim. Beyond that, it's not in anyone's self interest to not protect their own existance however seems necessary.

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Conclusion

So these are some historical and philosophical reasons behind the country's beginnings but that doesn't really answer any practical TODAY questions. I'm not sure that it should, per se, past a perspective on where we came from and what helps form the social narrative. History is a great tool with which to fashion a forward look to the future.

One thing I can absolutely bring to the table as far as dialogue recommendations is frankly a demand that the media and indeed EVERYONE begin educating themselves on history and actual facts before spewing agenda laced with falsehoods and spin. There is absolutely no excuse for anyone to not know the truth of whatever you seek. The fact that this has not occurred suggests a willful ignorance and intent to not solve anything at all but rather continue the downward spiral of identity politics and hostility. That just simply cannot continue. First and foremost. Can we all agree at least to be more accurate and truly SEEK THE TRUTH and not just a partisan win?

Until next time,

-Ronin

Afterword:

*Lysander Spooner noted that "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist." His point, as harshly as it was pointed out, is that while well meaning the Constitution has failed in its duty to protect freedom. This is a subject for another day...