Amendment II

The 2nd Amendment is perhaps one of the most debated amendments in the Bill of Rights. It reads-

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.

One long standing debate surrounding the 2nd Amendment was, does it apply to state-regulated "militias" (today this would be the State or National Guard) only, or does it apply to individuals as well? In 2008 the Supreme Court heard the case of District of Columbia v Heller, which called into question the constitutionality of D.C.'s ban on firearms. The Court ruled in favor of Heller in a 5-4 decision, affirming that the 2nd Amendment does indeed protect the right of an individual to own guns in his home for lawful purposes. The Court also found that while firearms can not be banned outright, they can be "reasonably regulated." (Ah, but what does that mean?)

Hopefully Heather can post providing some historical perspective on the 2nd Amendment!







http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf
http://www.law.cornell.edu/supct/html/07-290.ZS.html

Image courtesy of barjack.

The American Form of Government

This is an excellent video, well worth the 10 minutes!

1st Amendment and Freedom of Religion

This was posted on my blog during the election, but as Heather has been writing about the 1st Amendment, I thought I would re-post it here to add to the conversation. Plus, then I don't have to type up something orignal! I will explore this topic more in a later post.

I've noticed some anti-religious people seem to be confused about the 1st Amendment. Here's what it says-

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.

Somehow, some people take this to mean that absolutely no member of the government is ever, ever allowed to talk about their personal religious beliefs. The recent Saddleback forum has some of these people screeching about how the 1st Amendment and separation of church and state are being violated.

They just like to forget the part that protects "the free exercise thereof" I suppose.

They also like to hold up Thomas Jefferson as the patron Saint (pun intended) of atheism and extreme anti-religious nuttery. Of course, they're painfully ignorant about, um, the truth. In the Virginia Statute for Religious Freedom Jefferson opens by proclaiming "Whereas Almighty God hath created the mind free..." Oh my. Did he just mention God? In a government document?

Jefferson goes on to write that-

no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities

Jefferson felt so strongly about this piece of legislature that he instructed it to be listed as one of three accomplishments on his epitaph.

The 1st Amendment quite clearly does not prohibit any mention of religion, nor frank and public discussion of personal religious beliefs.

Anyone who thinks otherwise should quit drinking the ACLU kool-aid.

"abridging the freedom of speech"

Freedom of Speech. We've all heard this phrase. Abridging is an interesting word. It carries the concept both of not depriving the citizenry of the freedom of speech, but also not to change the content of speech. In totalitarian regimes such as China, censorship of speech, specifically political speech, is commonplace.

What kinds of speech are we talking about here? If you read the The Federalist Papers, you will see that the primary purpose of this phrase is to protect political speech. During the years leading up to the War for Independence, sedition was a crime. The Continental Congress maintained that they were not traitors. The framers of the Constitution remembered this and wrote the section on treason to define it very narrowly. According to the 3rd Article of the Constitution,

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

But, our memories are short, and early as 1798, Sedition was considered a crime in the United States. Fortunately Thomas Jefferson believed these laws (rightly) to be unconstitutional and pardoned everyone convicted.

"the free exercise thereof"

This is a key phrase. I have the freedom to exercise my religion. If I choose to pray, great. If my religion requires I get out a rug and face certain direction, good on me. The government cannot prevent me from exercising my religion. If I want to put out a nativity scene, that's my business and you have the right to be offended, but not to stop me.

Now a question:

If my religion requires that I proselytize (attempt to convert others) can the government stop me?

Let's test it against the first amendment. Is the government establishing a religion if I proselytize? No.

Am I freely exercising my religion if I proselytize? Yes.

Okay, so, your rights are protected (the right not to have the government require you to join my religion) and my rights are protected (the right to exercise my religion by proselytizing).

So, no, the government cannot stop me. Sure proselytizing can be annoying and rude. It might offend me. But, I can't tell the government to stop the proselytizer. I have to excerise my freedom of speech (we'll get to this later) and tell the proselytizer to go hang. The proselytizer can be forced to leave my property (protecting my property rights), but in a public place, they have a right to exercise their religion.

Let's apply this test to a nativity scene on public lands. Is the government establishing a state religion if I put the scene up? No. Am I freely exercising my religion if I put it up? Yes. So your rights are protected (You don't have to join a state religion) and my rights are protected (the right to exercise my religion by putting up a nativity). In a public place, a person has the right to exercise their religion.

"an establishment of religion"

This is perhaps, one of the least understood phrases in the Bill of Rights. Notice, please, that it does not say "Separation of Church and State." These two concepts are related but are not the same thing.

To put this phrase in context, at the time England had a state religion. Everyone was officially a member of The Church of England (The Anglican Church). Whether you were Catholic, Deist, Whatever, you were officially part of the King's Church. The King (now Queen) is the head of the church, much as the Pope is the head of the Catholic Church. One of the great things about the British Colonies in America is that in most colonies you could belong to whatever religious group you chose. Many colonists came to America to escape religious persecution. Remember the Pilgrims? They would not follow the teachings of the Church of England and were persecuted for their Puritan beliefs. Quakers, Catholics, Mennonites and Amish, Puritans, and others all emigrated here to be able to exercise their religion freely.

Philisophically, the founders did not want to establish a religion. Because America was formed in a climate of religious tolerance, the very idea of imposing a set of beliefs on the populace was abhorrent. Even if the government were to establish a State religion, whose would it be? It couldn't be the Church of England, because that would put them under control of the King again. What religion would they pick? Anything would put some out in the cold. So, logistically it wasn't even possible.

As a matter of fact, in order to fully break ties with England, the Anglican Church was dissolved. Priests of the (then) Anglican Church took their authority from the Scottish Episcopal Church (in Scotland). This church follows the same beliefs, rituals, and structure as the Anglican Church, but the King is not its head. That is why today in America you can attend an Episcopal church, but will have a hard time finding an Anglican one.

The First Amendment

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.

This is the text of the First Amendment to the Constitution of the United States. This amendment covers so many liberties. In the following posts I will cover each in turn. The main theme of this amendment is that the government has pretty much no say in your private life and needs to keep its nose out of your business.