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    Default Reasonable Limits: Limitations on Rights Are Not Reasonable

    Reasonable Limits:
    Limitations on Rights Are Not Reasonable

    TaePo

    November 28, 2010




    Abstract
    The concept behind reasonable limits on individual rights is not brand new but its recent incarnation is currently being used in an attempt to dispel and ridicule the need for the Second Amendment’s protections regarding keeping and bearing arms as an individual right against tyranny of government and criminals. The passive acceptance of this argument at face value is quite dangerous to all individual rights. All rights would be endangered to loss in a like manner if the ability to resist such usurpations is removed via acquiesced infringement of the Second Amendment right to keep and bear arms. The logical fallacy underlying the deception of reasonable limitations must be exposed and laid bare to public scrutiny against the historical background of our nation’s founding. Under the light of scrutiny, the insidious and dangerous nature of its false assumptions can be made known and its dire consequences avoided.
    Keywords: Limitations, Bill of Rights, Second Amendment, Constitution, Democracy, Republic.



    Reasonable Limits: Limitations on Rights Are Not Reasonable
    Today the phrase ‘reasonable limits’ has been increasingly bantered about in legal and popular circles regarding the rights of individuals. This argument is specious and bogus regarding everything deigned sacred by our forefathers. It is very American to discuss opposing views but the limited rights concept is basically anti-American.

    Historical Evidence in Our Beginnings
    We must look back to the historical record of our founding documents and the discussions and papers written at the time in order to understand some of the concepts behind the Bill of Rights. Since the most egregiously opposed right, sometimes to open hostility, is the Second Amendment’s right to keep and bear arms; we shall use this amendment as our primary example.
    According to John Patrick (2003), in 1776, the Continental Congress selected a five man committee to draft a document to justify the independence of the united American states. Thomas Jefferson’s draft, which became known as the Declaration of Independence was submitted. Within this document and based on The Second Treatise of Government by John Locke, Jefferson puts forth a modernized theory of government. As summarized by John Patrick (2003):

    "…all individuals are equal in their possession of certain natural rights, which the government is supposed to protect. These rights do not come from the government. Rather, they are part of human nature…The primary purpose of government is to guarantee these rights."

    The document itself is better composed though, “We hold these Truths to be self evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...” (Jefferson, 1776)

    Once the war was won, the first government instituted in America was under an organization called the Articles of Confederation. The idea was to have a central body or forum for the individual states to meet and conduct government and other business. But this government was very weak as the people were concerned about too much centralized power causing tyranny. Having just thrown off the yoke of tyranny by force of arms, they wanted to ensure not to trade one master for another. The problem was that this design was too weak and when it was not to a state’s advantage, the forum or central body was ignored. Without enough participating states, nothing could be passes or resolved. Having no teeth to ensure cooperation, many important agendas were left incomplete. Stanley Weintraub (2004, p.4) noted that “congress was little more than a discussion group.” Being ineffectual, it was decided to revamp the governmental system.

    In 1787, we have our Constitution drafted. At this stage it does not include a Bill of Rights (B.o.R.). The B.o.R. will become ratified in 1791. The importance of the U.S. Constitution was many fold. Most importantly, however, was the understanding that the document outlined specific and express powers given to the federal government by the consent of the people. It is for this reason that it starts out in bold lettering, “We the People…” (Continental Congress, 2009). So, although the Constitution was very limiting of governmental powers it conferred more power than the Articles of Confederation but also had many safety mechanisms against tyranny built-in. As noted in the Declaration, a government has many purposes, but its foremost object is to protect the liberty and rights of its citizens.

    For a period of time, there were writings, usually under pseudonyms in various newspapers arguing both for and against certain powers to be granted to a central authority as well as whether enumerating, or listing natural rights was a good idea. These writings by various forefathers were collected into books called the Federalist and Anti-Federalist writings.
    John Patrick (2003) summarizes a part of James Madison’s Federalist Number 10:

    “…he emphasized the potential tyranny of the majority as the main threat to individual rights in a government based on popular sovereignty. The idea of the Constitution was to limit power from any source, including the will of the majority, in order to protect the rights of the individuals against tyranny.”

    This is exactly why a Republic and not a Democracy was chosen as the governmental form. Democracy was derided as a mobocracy. So not only governmental power but the majorities’ power must be constructively limited as well.

    In the Federalist Papers Number 28, Hamilton (n.d., para. 6) discusses problems of over bearing government. First, power is given to representatives to defray the opportunity to consolidate and abuse power, but even if this failed, “…there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.” He also explains that no matter what level of government usurps power, state or federal, the people can throw their weight and force behind the other and use the other as the instrument of redress (n.d., para. 7). This indicates that failure and the ability to resist goes both ways whether on the federal or state level.

    In the Federalist Papers, Number 84, Hamilton (n.d.) responds to the resistance and objections that the Constitution contains no bill of rights. Hamilton’s opinion was that a Bill of Rights would grant prohibitions against taking action that the government did not have in the first place and was very dangerous. He asks, “Why declare that things shall not be done which there is no power to do?” (n.d., para. 9) He felt that it would, “…furnish, to men predisposed to usurp, a plausible pretense for claiming that power.” He then further argues that the Constitution is a bill of rights within itself. When considering the Constitution only grants specific powers, no more and no less, one can understand his viewpoint. What Hamilton terms a “doctrine of constructive powers” is exactly what has been happening to the Second Amendment in the latter part of the 20th Century with the 1968 Gun Control Act as well as many state, municipal and local laws.

    The Bill of Rights was eventually added to the Constitution and became known as the first ten amendments. They originally were called articles. Because of the term amendment and the fact that the Constitution is amendable to allow peaceful and necessary change or additions, people mistakenly think that some or all of the bill of rights can be repealed. As mentioned in the Federalist Number 84, above, this is one of the dangers that Hamilton was warning about. The rights are natural and inherent to our beings and cannot be repealed as the Constitution does not allow that power to the government. It is a misnomer and is due to the fact that a bill of rights was enumerated.

    Lesser known are the Ninth and Tenth Amendments. The Ninth specifies that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (The Library of Congress: Bill of Rights, 1789). In other words, the rights listed in the Bill of Rights are only some of the rights the people have. And, they are not necessarily more or even less important than other rights not listed. The Tenth yields, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (The Library of Congress: Bill of Rights, 1789). This is very important as it reiterates the fact that the Constitution delegates limited powers to the Federal government but it also defines three governing bodies. Like the three branches of government, the Executive, Legislative and the Judicial; we have the Federal Government, the State Governments and the individual referred to in the general case as the people.

    This interpretation can be criticized as hinging on a minor point and overreaching. But when considering the complete historical record regarding individual rights and the purpose of government to protect said rights, it is not a far reaching conclusion but rather one that errs on the side to preserve an individual’s right rather than confer further powers to a government, be it state, federal or at any level.

    The Civil War and After
    Despite the built-in protections, the post-Civil War era brought new challenges. With newly emancipated blacks having gained recognition for their inalienable rights; many states began to pass laws to limit the rights and the ability to exercise rights by the black population. Not only the right to vote was hindered but also the right to keep and bear arms. This was done to limit their ability to defend against hate groups such as the K.K.K. and other more official governmental tyranny against them. In response to this, Congress enacted the 14th Amendment. The two main provisions of the 14th Amendment conserved the right of an individual in any and all states. The provisions provided that, “No State shall make or enforce any law which shall abridge the privileges and 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 equal protection of the laws” (The Library of Congress: Bill of Rights, 1789). By passing this amendment, Congress created a judicial process by which the Supreme Court may choose to incorporate certain parts of the Bill of Rights or subparts thereof to be applied to the States depending on the requirements of cases brought before it. In fact, most of the Bill of Rights became incorporated or were mostly provided for in state laws. In keeping with the idea of three governing bodies, the Federal, State or individual; it is a redundant step. However, it became necessary as the southern states proposed that the Bill of Rights only applied to limit the Federal governmental authority and was not to empower the Federal level over the State entities. But this argument is a perfect example of a ‘constructive power’ and is exactly why Hamilton disliked enumerating a Bill of Rights within the Constitution. Logically, it stands to reason if the Federal Government must recognize an individual’s rights, other forms and levels of government must also. An innate right after all belongs to the individual not any level of government.

    John Patrick (2003) has a revealing chart that shows the year each part of an Amendment of various Amendments was incorporated. Mostly the 1st, 4th, 5th, 6th, and 8th Amendments have been incorporated between 1925 and 1969. The 2nd Amendment is noticeably absent. The 3rd, regarding forcibly quartering troops in homes has not come up and the 7th which restricts excessive bail and cruel and unusual punishments are not seen very often by the Supreme Court.

    As a living document, one that can be changed with the times, the Constitution has a difficult but not impossible way of being amended. This was done to enable future generations to add or subtract from the powers of federal government as they see fit to do, but only after considerable thought and effort are expended. In describing the role of the Supreme Court a 1964 Time Magazine article states, “If the Constitution stressed stability, it also permitted change. If the Government had limited power, it also needed more power to serve a nation that was growing in every direction. The swelling union required a unique umpire to allocate that power. The umpire was, and has been, the Court” (Time October 9, 1964). We would be required, of course, to hold true to the intent of the Constitution and not grant wide sweeping new powers but only limited and explicit instructions. Examples of possible new laws would be those to help protect individual rights and privacy on the internet and through other electronic forums and for protecting those rights in commercial trade by defining what information can be collected, how it can be stored and what data needs permissions from the individual before it can be collected or released. Someday, we may see Constitutional amendments on these issues or at the very least several agency regulations which may need Supreme Court review.

    It is often mentioned in the anti-gun rhetoric that all rights are limited in scope. They normally demonstrate this fact by using the First Amendment’s protection of free speech not covering or protecting someone who yells, “Fire” in a crowded theater when no fire exists, or to say slander or write libelous statements. Therefore, they claim that any and all gun registration and confiscation schemes are allowed by law at all levels of government in order to prevent firearms misuse. This concept is a red herring. First, with free speech, one still retains the right to say anything you want; there just may be civil and criminal penalties that may be handed down during due process after the fact. The same logic holds with using a gun to rob a bank. Yet, those who do not show a propensity to abuse their rights should not be affected by regulations limiting their rights. To take their metaphor further, we do not require people to wear gags or other devices to prevent talking because someone might abuse the right of free speech and do the wrong thing. Neither should the Second Amendment be limited due to misbehaviors of others. In fact, unlike the first amendment, the second specifically states that the right “shall not be infringed.”

    Under the heading of human rights advocates, David Kopel (1998(4)) quotes Lysander Spooner, an American legal theorist, ”The constitution therefore takes it for granted that, as the people have the right (to keep and bear arms), they will also have the sense, to use arms, whenever the necessity of the case justifies it.” In other words, most people understand the nature of arms and the finality of death and would use force sparingly and only under dire circumstances of imminent danger or threat to include tyrannical forms of government. And if one fails to do so, one will be met with due process and tried for criminal misuse of a right to the detriment of another’s rights to life and liberty. We do not punish people for what they might do or are capable of doing. We enter them into the due process procedure only for what they have allegedly done in fact. And until there is wrongdoing proven in trial, they are free to enjoy all of their rights unfettered.

    Today
    Those familiar with the Second Amendment issues will note I have not touched upon the militia clause argument and the lack of incorporation for the Second Amendment via the 14th Amendment against the states. Both issues have recently been rendered moot, thankfully, by the Supreme Court. Heller v. D.C., 2008, was decided in favor of recognizing the Second Amendment as an individual right as opposed to a collective right in regards to militia. Dan Peterson (2010, p.23) defines the limitations in the Heller decision, “Because the District of Columbia (D.C.) is a federal enclave, Heller necessarily did not address whether this individual Second Amendment right protects against infringements by states, counties, and municipalities.” Although clearly a step in the right direction as far as aligning with our forefather’s intent and despite my interpretation that incorporation via the 14th Amendment is redundant, many people withheld judgment until incorporation could also be won. This occurred later in June of 2010 in the case of McDonald v. The City of Chicago (note that D.C. and Chicago historically have very strict anti-gun policies and high crime rates). In the McDonald case, the Supreme Court incorporated the Second Amendment under the 14th Amendment through its due process clause. The Second Amendment finally has full and official recognition as an individual right against all governmental forms, federal, state, local or municipal.

    Conclusion
    Our forefathers, fresh from the toils of a battlefield to throw off the yoke of oppression, gave us wonderful well thought-out documents; the Declaration of Independence, the Constitution and the Bill of Rights. They all shared the purpose of begrudgingly accepting that man historically finds governments necessary and that mankind then defines the very thing which might eventually enslave him. But the founders believed a government must protect individual rights above all other duties. The limited powers conferred upon a government come from the people and are revocable. It is all designed to ensure that only the powers of government are limited and that the rights of the people are not ever limited but preserved in whole, forever. The Second Amendment especially becomes the final arbiter should all else fail. Be the threat due to governmental tyranny or criminal intents; the right of arms belongs to the people for their defense against both.


    References
    The Library of Congress: Bill of Rights. (1789, September 25). Retrieved October 22, 2010, from American Memory: A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875: http://memory.loc.gov/cgi-bin/ampage....db&recNum=144

    Continental Congress. (2009). University of Oklahoma US History. Retrieved November 22, 2010, from University of Oklahoma College of Law: http://www.law.ou.edu/ushistory/constitution/

    Hamilton, A. (n.d.). The Federalist Papers No. 28. Retrieved October 22, 2010, from The Library of Congress Thomas: http://thomas.loc.gov/home/histdox/fed_28.html

    Hamilton, A. (n.d.). The Federalist Papers No. 84. Retrieved October 22, 2010, from The Library of Congress Thomas: http://thomas.loc.gov/home/histdox/fedpapers.html

    Jefferson, T. (1776, July 4). The Library of Congress: Declaration of Independence. Retrieved October 22, 2010, from American Memory: A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875: A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875

    Kopel, D. B. (1998(4)). The Second Amendment in the Nineteenth Century. Brigham Young University Law Review, 1359.

    Patrick, J. J. (2003). The Bill of Rights: A History in Documents. Oxford University Press.

    Peterson, D. (2010, September 01). A Splendid, Precarious Victory. American Spectator, p. 22.

    Time October 9. (1964, October 9). The Supreme Court:The Limits That Create Liberty & The Liberty That Creates Limits. Time Magazine (Web Archives), p. 11.

    Weintraub, S. (2004). General Washington's Christmas Farewell: A Mount Vernon Homecoming, 1783. NY: Plume.
    It is you. You have all the weapons that you need. Now fight. --Sucker Punch

  2. #2
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    Default Re: Reasonable Limits: Limitations on Rights Are Not Reasonable

    I had to write the above for a class I was taking. I am not a legal expert but I am not a disinterested citizen either. The paper is imperfect as space requirements were quite limited. I think the research was interesting and hope some others may find it worthwhile as well.

    Regards,
    Taepo.
    It is you. You have all the weapons that you need. Now fight. --Sucker Punch

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