Wednesday, December 14, 2011

Examining the Constitution (Fifth Amendment)

7:57 AM | Posted by CSS4America | | Edit Post

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.

The fifth amendment is one of the most familiar of all Constitutional amendments. The fifth amendment protects citizens from being forced to incriminate themselves during the course of a criminal investigation (right to remain silent), guarantees the right to due process (trial by jury of your peers), protects citizens against "double jeopardy" (being tried twice for the same crime), and protects the property of citizens from seizure by the government (local, state, or federal) for public use without fair and proper payment (they can't take your house in order to build a new highway without paying you a "fair price" for it).

One instance where the protections of the fifth amendment were used to circumvent existing laws is the case of Miles Edward Haynes v. United States. During this case, Haynes, a convicted felon, was found in possession of an unregistered firearm, a violation of the the National Firearms Act of 1934, which required the registration of certain firearms. Haynes contended in a Supreme Court appeal, that as a convicted felon, the requirement to register a firearm (which he cannot own as a felon) was essentially forcing Haynes to "incriminate himself" by the admission of firearm ownership. The Supreme Court agreed.

I do not believe this was the intent of the founders when this amendment was drafted. It does however, reflect the ways that our Constitution can be interpreted to suit the needs of the citizens, which, in most cases, is a good and intended notion. The flexibility of this document allows for societal changes, which our founders foresaw. However, the misuse of this flexibility, in the instance of Haynes, has a negative impact on those who seek to use the Constitution in a "law-abiding" manner, rather than the furtherance of criminal activities.

Labels: bill of rights, Constitution, fifth amendment, right to remain silent | 0 comments

Saturday, December 3, 2011

Examining the Constitution (3rd Amendment)

6:41 PM | Posted by CSS4America | | Edit Post

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 manner to be prescribed by law.

The third amendment is the least challenged of any amendment in the Constitution. Since the ratification of this amendment in December of 1791, no challenges have ever been presented to the Supreme Court. This amendment was drafted in response to the Quartering Acts imposed by the British during the colonial period. Not since the Revolution have any US Troops been housed, by order of the federal government, in a private residence.

It is interesting to think that this amendment may be the only amendment in our Constitution that no longer has any use. While this isn't meant to be derogatory or unpatriotic, it is actually meant to be a statement of pride. The lack of legal challenges shows that we have progressed as a nation to such a point that we no longer have to worry about this. Score one for democracy, and common sense.

Labels: Constitution, third amendment | 1 comments

Friday, December 2, 2011

Examining the Constitution (2nd Amendment)

6:42 PM | Posted by CSS4America | | Edit Post

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The Second Amendment of the US Constitution, as ratified by the States, is one of the most controversial amendments of the original 10 amendments. The only right covered in this amendment is the right of the American people to possess firearms. The plain text of this amendment states that the federal government can not infringe upon, or prohibit, the possession of firearms. What is not covered explicitly in this amendment is the extent of the regulation of that possession of firearms. Pro-gun advocates view the word infringe as ANY type of regulation regarding firearms. Anti-gun advocates view the word infringe as everything short of complete abolition of the possession of all firearms. Common sense tells us that there should be a happy medium.

Taking into consideration that when this amendment was written, only four types of firearms existed, each sharing a common characteristic. The four firearms (pistol, shotgun, rifle/musket, and cannon) were all single shot muzzle loaders, and were valuable items, essential to the survival of those early Americans. Today, the ease of access to firearms, increased magazine capacity, increased range and power, along with incredible variety of firearms has changed to face of "keeping and bearing arms".

The main target of anti-gun advocates are hand guns and so-called "assault rifles". Hand guns are targeted because of their ease of concealment as well as ease of access. Assault rifles are categorized (by the anti-gun side) as being semi-automatic (no manual ejection/insertion of cartridges and a single shot stemming from a single trigger pull) and having high-capacity magazines (this definition is hazy and varies from person to person).

Anti-gun advocates, in order to comply with the second amendment, have focused on increased regulation of firearms. By imposing more restrictions on the sale and possession of firearms, it becomes more and more difficult for citizens to own them, resulting in a decrease in the amount of lawful firearms sold and possessed. Many believe that if it becomes "too much of a pain" to get the necessary licenses and permits, most would-be gun owners will give up on purchasing new firearms. The largest flaw in this thinking is the fact that the vast majority of the gun crimes that are cited by the anti-gun establishment are committed by those who have illegally obtained their firearms, thus circumventing not only the second amendment, but any and all additional laws set in place to regulate firearms purchasing and possession. Pro-gun advocates use this argument and rely heavily on the ambiguity of the second amendment to maintain their gun rights.

The sheer number of court cases involving second amendment challenges and the challenges of the challenges prohibit their listing on this post. As a summary thought, reasonable regulation of firearms is a sound thought. Over regulation to essentially ban firearms is unconstitutional. This amendment will be a battleground for years to come with neither side fully achieving their respective goal.

Labels: Constitution, keep and bear arms, second amendment | 1 comments

Wednesday, November 30, 2011

Examining the Constitution (1st Amendment)

7:59 AM | Posted by CSS4America | | Edit Post

"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 First Amendment of the US Constitution is a broad "Congress can't do" statement. This amendment guarantees Americans the right to speak their mind, worship or not worship as they choose, write their opinions down and set the before the public, gather in protest or in support of a specific cause, and to tell our government, the body that created these amendments, that we are displeased with their actions.

The first section addresses the establishment of a state sponsored religion. This was directly linked to the establishment of the Church of England. The founders elaborated on this by guaranteeing the right to worship, and the manner in which they worship up to the individual. This section does NOT contain the words "separation of church and state" as is so often quoted. Nor does this amendment declare anything other than the prohibition of a national religion. The "separation of church and state" quote is instead found in a letter from Thomas Jefferson to the Danbury Baptist association of Connecticut. This quote stems from Jefferson's agreement with the Danbury Baptists that "...religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship..." He goes on to state that because of the first amendment, and the prohibition on government establishment of a national religion, it has created a, "wall of separation between Church & State." This does NOT, in anyway state that every mention of religion should be stricken every facet of government (i.e. Pledge of Allegiance, currency, photographs, etc.) Far too many have taken this amendment out of context in order to further personal agendas, thus violating the very amendment they claim to support by suppressing the freedom to worship, and the freedom to speak and express their faith. This amendment does not, in any way, shape, or form give any citizen the right to suppress the speech or expression of any other citizen with whom they disagree.

(Jefferson's letter to the Danbury Baptist Association): http://www.loc.gov/loc/lcib/9806/danpre.html

The next three "government can't do" aspects of this amendment give Americans the right to express themselves, speak freely without fear of government reprisal, and to gather in protest or support of a certain item or issue. The freedom of speech and expression is one of our most prized freedoms. However, more often than not, individuals that carry this amendment as their banner use these freedoms to agitate, anger, and inflame the sensibilities of the masses. An example is the Westboro Baptist Church. They are given the right to protest at the funerals of fallen service members under the Constitution, however, in certain instances, in the zeal to protect the WBC's right to speech and assembly, the rights of the families of the fallen have been restricted. A line must be drawn regarding this amendment to prevent the rights of the few from trampling the rights of the many. Just as we protect the rights of those we don't agree with, so should we protect the rights of those we do. Regarding the right to peaceably assemble, many have missed a key word in that guarantee, "peaceably". At the point in time where the assembly becomes uncivil, violent, disruptive, or impacts those beyond the assembly in a negative manner, the assemblage has moved beyond the first amendment right and begun encroaching on the rights of those around them, again, violating the very rights guaranteed to them. Recently, the OWS movement occupied numerous public spaces around the country. While most were peaceful and fell within the bounds of the First Amendment, many did not. By occupying Zuccotti Park in NYC, the OWS movement disrupted the commerce of local businesses, denied free and uninhibited access to the park by non-OWS citizens, as well as creating a less than peaceable assembly when they refused to comply with orders to disperse. Even excessive noise voids the protection of "peaceable assembly" when the peace of others is violated. This does not mean that chanting should be prohibited, but explosives, fire-bombs, and other items restricted from general-public use should be dealt with within the confines of the law.

The freedom of the press is one that America has taken to heart and protects with substantial ferocity. We are fortunate enough not to live in fear of government reprisal if we read a dissenting opinion in the local paper that openly criticizes the President's economic policies. Publishing and distributing inflammatory literature is also protected, regardless of how much you may disagree with the message. The right to print and distribute this material is no greater than the right to decline the offer of the material or disagree with the message being distributed.

The final freedom to petition the government for redress of grievances (tell them you don't agree with their policies) is one that should be expressed more often. Handcuffing yourself to the fence outside the White House or lying on the steps of the Capitol Building en mass is not petitioning the government. Letter writing, the sending of emails, telephone petitions, even peaceable assemblage to voice your displeasure is a Constitutionally protected right. As a personal note, perhaps if more people exercised this section of the First Amendment, we could see a positive change in our government and their policies.

Labels: 1st Amendment, Constitution, Freedom of Religion, Freedom of Speech, Freedom of the Press, Right to Assemble | 0 comments

Saturday, November 26, 2011

For the upcoming week.

7:55 AM | Posted by CSS4America | | Edit Post

A few days ago, I asked the audience, via facebook, whether or not our elected officials should take class (non-partisan of course) on the US Constitution prior to taking office. It seems as though many of our elected leaders have no idea what this document says, even though they swore to support and defend it when they took office. I feel that it is only fair that we cover the Constitution, amendment by amendment so that we, the American people, can more effectively hold our politicians accountable. We'll take an amendment or two a day, give the original text, the moder interpretation, and examine how our politicians have twisted and manipulated the text to serve their own purposes.

Please feel free to add your own insight to the upcoming discussion, but keep the comments civil while exercising your 1st Amendment rights.

Labels: Constitution, politics | 0 comments