In the Name of Public Safety: A Look at Amendments 3 an 4

As we take our next steps down the twisted and abused pathway of our Bill of Rights the next two check points we encounter are the overlooked Third and oft cited but ignored Fourth Amendments.

The reason I call the Third Amendment overlooked is simply because 90 percent (according to the latest Fitzwater/BS polls) of the people in America couldn’t tell you what it is. In fact, I bet most of you didn’t know what it was unless you just went and checked. And really, why should you know what it is? It is after all one Amendment that really has outlived its intended use, hasn’t it? Of course, the argument can be made that we may soon need the protections of the Third more than ever; even if our Government does have a history of ignoring it. Therefore, we need to see how we can make it fit with life in the 21st century. Lucky for us, our government has provided more than enough fresh meat for the Third by prison raping the Fourth in the name of public safety. Don’t shrink away now, it is our fault after all.

Although many people I know will vehemently disagree with me, these two Amendments, more than others, have been the national victims of 9-11. I don’t use this phrase lightly and it is not intended to diminish any of the personal losses suffered by families of the physical victims of the 9-11 attacks. Rather, I make this statement because 9-11, more than any other event since Pearl Harbor, has created a culture of public safety over personal freedoms. That my friend is Un-American and Mr. Jefferson would tell you that if he was here.

Amendment III, U. S. Constitution

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 a manner to be prescribed by law.

This Amendment was added because of the habit of the British to force colonists to take in, and provide for, soldiers assigned to garrisons within the colonies. There was no compensation for this and refusal could bring punishment from the governor of the colony, acting on mandate from the king. This is a practice that was not seen again until the Civil War when soldiers from both sides, but mostly Northern Soldiers, would occupy and loot homes in enemy territory for any provisions they needed. This practice was encouraged and sometimes ordered as both a way to restock an always hungry Army, and also as a psychological weapon against the enemy. Post-war, the idea of compensation for those who were victims of sacking fell somewhat short.

Today, we don’t have to worry about the Army needing to set up an outpost in our living room, but only because they have really great mobile command posts that can pull up and park right at the end of your driveway. No, you need to worry more about federal and local law enforcement laying siege to your home in the name of public safety. Of course when it comes right down to it, the Amendment as written with the phrase “without the consent of the owner,” doesn’t say anything about how that consent is obtained. Given the recent elevation of the options the president has in dealing with U.S. citizens, perceived consent could easily be obtained. Add in, “nor in a time of war, but in a manner to be prescribed by law,” and there are really no restrictions at all (War on Terror and all).

Of course you might not be asked to quarter live military or law enforcement personnel, but rather with our current technologies, it is more likely that they will want to place surveillance equipment on, in, or about your property, you know, to help them “keep an eye on the community.” This is the 21st century equivalent of quartering a soldier since the virtual government agent will be there 24/7; the next evolutionary step in the, community watch program, right?

And that’s where the line between the Third and the Fourth blurs. Many see the Third as a protection Amendment just at the Fourth is, but the Fourth gets a little more specific on what it was intended to protect. But alas, it has been whittled down considerably, in the name of public safety.

Amendment IV, U. S. Constitution

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Let’s look at what being secure in their persons, houses, papers and effects means.

Being secure in your person means that you are the one who decides who sees your physical person or your body. This part of the Fourth is violated thousands of times each day by the Transportation Safety Authority (TSA) by having you empty your pockets, open your bags, remove your shoes, and now, step into a scanner that shows much more than any level of modesty should permit. This is done in a manner that makes no sense. We have all heard the stories of grandmothers and children in wheelchairs being searched and anyone with half a cup of common sense has to ask why? It wasn’t, after all, baby toting grannies that facilitated the attacks of 9-11. But to only check persons of Middle Eastern ethnicity is considered profiling. So? If a police officer receives a report to be on the lookout for a short, bald, middle-aged, white guy who just threw a brick through the town hall window, they are not going to stop young Mexican males or Asian women for questioning. Why is this, such a hard concept to transfer to airport security? No, it’s not oversimplifying the problem; it’s a common sense approach to address a problem.

Being secure in your person also means the right not to submit to urine and blood test to see if a person drinks alcohol or uses legal or illegal drugs, to obtain employment. Testing is also required or soon will be, to receive pain medications through public health departments and the VA, and several state governments are pushing to test people applying for unemployment compensation and other services.

Look, I know it’s the Libertarian in me, but what a person puts into his or her body, be it food, alcohol, drugs, fruit juice, MSG, or whatever is that person’s right. If they are on the job and you suspect they are drunk or high and can substantiate the claim, then testing makes sense, as well, if they get hurt or are habitually late, test them. I could go on, but you get the idea.

Another place the Fourth is ignored is being secure in ones papers and effects. And it is done with both public and high court support with the traffic stop. Some have heard me talk on this before and know that I am simply baffled by how it is somehow legal to without a warrant or probable cause, as is required in the Fourth, simply stop individuals that are driving down the highway and order them to surrender their papers and effects for inspection. Here public safety raises its ugly head again. The cry in support of this legal violation of the Fourth is the anti-drunk driving effort. They must protect us from drunk drivers. Well, how about we just have additional police on duty during times of high drunk driving probability (weekends and holidays) and stop more people near the bars. How far do most drunk drivers get before even encountering a stop?

The next evolutionary step is for law enforcement, in the name of public safety, to begin to check the papers (IDs) and effects of pedestrians walking, or people accessing public transportation. It’s a blending of the security culture being developed by the TSA, and the traffic stop. We accept both without complaint now, how hard do you think it would be to get enough elected officials to put the legislation forward for train/subway platform, bus stop and sidewalk stops, then would come the workplace checks until finally they knock on your front door and check. I can hear what some of you are thinking, but people in countries where these things have happened didn’t believe it could happen either. Might I suggest you read about Europe in the 1930s and 40s, or maybe the history of the Russian people.

The government is placing video cameras everywhere, local law enforcement units are employing unmanned drones, federal law enforcement officials can listen in on phone calls “they” decide are worthy, and just this week it was announced that the federal government is looking into ways to monitor “questionable people” through internet access points. This is not science fiction or conspiracy theory stuff; this is real world, happening today stuff. All thanks to the hysterical response to 9-11 called the PATRIOT Act and its subsequent strengthening.

You know, I really wish that I could see a future where our rights will be returned to us but I don’t really believe that it will happen. I see the freedoms we still have being ravaged even more over the years to come because of the fear the government has of its own citizenry. Is there an answer? Yes, but Revolution takes much more than what we see happening so far. Many of us are angry about the way we are being treated, but most either ignore it or are in a group that is not really touched by the woes of the common folks. No, Revolution may come for our descendants; we are here to watch the decline. In the name of public safety.

The right for who to keep and bear arms exactly?

Well for good or ill this week I am going to tread and possibly even stomp upon sacred ground for many who read these thoughts of mine. For as we move on, in this look at our Bill of Rights (and selected additional Amendments), we arrive at Number Two; one of the most passionately, and often, debated of the Amendments adopted by the Founders. So forgive the extra two days of editing, before placing it before you.

I also want to preface this by saying that I am a gun owner, (which is what most people think the Second Amendment is talking about. Arms in the 18th Century also included swords and pikes). I have owned semi-automatic pistols, shotguns, rifles and even a bow once. I own knives and swords and other military paraphernalia that can be used as weapons or arms. So I personally benefit from the Second Amendment being interpreted the way it is by our government, but that interpretation is backed by only the tone of our society, not by the actual words of the Second Amendment.

Amendment II, United States Constitution

“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.”

To get a true understanding of what this Amendment means, we must first look at when it was written. We as a nation were not that long separated from the threat of war literally breaking out in the back yard. The War for American Independence officially came to an end on Sept. 3rd 1783 with the signing of the Treaty of Paris. Just over four years later, on Sept. 17th 1787, the Constitution was signed, with ratification coming the following July 21st and the Amendments following in September of 1789. So it is not surprising that war would still be fresh in the collective mind of America.

The Congressional Representatives, taking in account recommendations for a Bill of Rights from the several new states’ legislature during the ratification process, determined that the war weary citizenry were not in any mood to leave themselves defenseless to anyone who might decide to test the young nation’s security. After surviving the brutalities of the British Army and their allies the Hessians and some Native American tribes, no newly minted American was going to be too far from his musket for a very long time to come. Thus, it was sensible to allow the citizens to keep arms, but being politicians, they made the purpose of such a right, the maintenance of a “well regulated Militia.” For defense of the Nation.

It is important to note that at this time in post-war America, there was still no standing army to speak of. The first Congress had allocated an Army of 1,000 men, but that was all. While present day Marines, Soldiers and Sailors date their birth to Revolutionary times, they were not the military force we know of today. Most men were too busy carving out agrarian communities and private farms – combat veterans “turning swords into plough shears,” as they say. There were few cities to speak of and travel through rural areas was common. Most of the men do agree to be a part of local militias for the defense of their homes. Just as with today’s National Guard detachments, these militias were trained (well regulated) in defensive combat operations and were on call to take up arms should there be an attack on the safety of the community.

Unlike today’s National Guard detachments, there were no armories to store weapons and ammunition, so each man maintained his own weapon in his home, and thus the need for the next line of the Amendment, “being necessary to the security of a free State,” to be added. What the government was saying is that, ‘yes, this well trained reserve military detachment we have said you can have is there to protect your community, but, if we need them to defend the “State” (now known as the Nation) then we’re going to call them into service.” In other words, your armed men can keep the Indians out of the corn fields but remember they are only permitted to exist to defend the nation from attack.” Exactly as National Guard are managed today. That’s also why they are called the North Carolina, National Guard for example. They are U.S. Military units maintained by individual states. The Charleston South Carolina Militia in 1788 was the period equivalent of the South Carolina National Guard Detachment of 2012. This is who the founders ordered to be well trained.

Since these men came from within the community they lived in their homes and gathered within, or just outside the town to train, it was logical for them to maintain their arms at home, which included everything from swords to cannon depending on the community and what was left over from the war. If the Indians attack at 3 AM, you don’t want to go looking for the guy with the keys to the town armory. This logical, logistical provision gives us the most debated part of the sentence, “the right of the people to keep and bear Arms, shall not be infringed.”

Well, first off, let’s be clear about what “people” meant at this time; free, white, men with the exception of a very few “free men of color,” emphasis on the word few. So, free, white, men were going to be the ones given permission by the federal government to keep their arms within their homes, providing they were trained for the purpose of protecting the Nation in a time of dire need. Today “people” fortunately has a broader meaning.

The amendment does not say that the purpose is for self-defense, or home defense, or hunting, or sport shooting or anything other than for the defense of the Nation against a common enemy. And that is where the real nut of the thing lives, with who they and we perceive as the enemy.

I will put aside completely as a given the right to shoot an intruder trying to get into your home for ill intent, I believe you have the right to protect your land from poaching or vandalism and that we all have the right to defend your person and you loved ones using anything you can from martial arts to guns to ball bats and throwing rocks. But what the government should have had the foresight for, is the arms-wielding population of Americans that will rise up against the common enemy of a government trying to claim too much control over a free people. It has happened in many different countries, empires, and kingdoms throughout time. A corrupt government can be toppled by even a semi-well regulated armed resistance – such as happened in the war the authors of the Second Amendment had just finished fighting.

Maybe that’s it right there, they were so determined to create a nation that would not be a pseudo-monarchy that they built into the laws of the land the very tool that could lead to the destruction of an American Government gone rogue with power; a citizenry with the right to be armed against a common enemy, even if it were their own government. Could some of these men really have possessed that level of foresight or paranoia about their descendants’ temptation to seize too much control? I would like to think so.

As I said at the beginning, I am glad the law interprets the Second Amendment the way it does instead of how it is written. I am also glad that the interpretation has been so long engrained into our collective American psyche. In the end it may be the only thing that saves us when the government says that the Second Amendment has been revoked and they start knocking down doors.

Like MacArthur, I Have Returned

Having been gone so long from this task, I have been quite tentative about returning to our conversations. I will sum up my absence by simply saying that it was unavoidable and is now ended. Sometimes in life you find that you have responsibilities which cannot be ignored. And no, I wasn’t in jail.

I did, in my time away from you, monitor the news as best I could. I watched the slow reduction in the GOP primary candidates (we’ll talk a lot about them in weeks to come), I watched with interest the rise of the Occupy movement and then in disgust at the government and law enforcement responses. (All I’ll say about that is when the citizens of Egypt rose up and protested their government, ours praised them; when American citizens rose up and protested their government, it belittled, slandered, and abused in some cases, those citizens – and we’re the ones with free speech rights. Watching as unarmed protesters, sitting peacefully on the ground, were soaked down with tear gas made me very ashamed of my government.

While I was gone, I took some time to think about the changes both on the way and the ones that have happened in the last dozen or so years and it has left me with a chilling realization that nobody has been able to shake me from. That realization is simply that we are in the last days of America as our founders envisioned. This is hard for people to hear and most will say that I am flat wrong, but the signs are everywhere, everyday and they are growing.

When those, unqualified, but well meaning British gentlemen gathered in Philadelphia and began to discuss what exactly this new nation they wanted to build should be, there were many different ideas. Some wanted a sort of monarchy or feudal lord system because it was familiar and comforting. But the majority knew that what was needed was something never before seen; a free and sovereign nation where the people were not subservient, but rather were the true power of the nation. They were right.

Through the years the Constitution (which is a fluid document – otherwise you couldn’t make amendments), has remained the guiding rule for government and a civil rights insurance policy for the people. But slowly, beginning in the mid to late 20th century, the policy began to be manipulated and twisted through fractured interpretations, so that many of the protections we are due as the intended power of the country, have been stripped away.

I would like to spend a little time over the next few blogs discussing what I think we have lost and see if I can convince you where we are headed, while there still may be time for us to stop it.

On March 4th 1789, the members of the First United States Congress met in New York to hammer out the law of the land. One part of this turned out to be a Bill of Rights. Something that was not unanimously thought to be a good idea; luckily for us there were more Jeffersonians than Hamiltonians and so we received those very important first ten amendments. That is what we shall study.

Amendment 1 - Point by Point

Congress shall make no law respecting an established religion or prohibiting the free exercise thereof; - Okay, this should be a simple statement to grasp but nonetheless it is debated endlessly. It simply says that our government can’t make Catholicism or Mormonism or Protestantism or Voodoo the officially sanctioned religion of America. While in point of fact no law has ever been passed naming a national religion, it was still found to be acceptable to put “In God We Trust” on our currency and insert “Under God” into the pledge of allegiance in the 1950’s. Our government holds national prayer breakfasts, and I don’t know of a single president (in my lifetime at least) that has not said, “God bless America.” The old saying that actions speak louder than words is evident here for anyone who will see it; We the People have allowed our government to present to the world the face of a Christian Theocracy that tolerates, to a certain extent, those who believe otherwise. If this were not the case, a fanatical Christian like Rick Santorum couldn’t be seriously considered for the GOP nomination. Look. I don’t want a fanatical anything – Muslim, Christian, Zionist, Jew or Wiccan, you name the flavor – to be elected president. I don’t mind if my elected officials are spiritual, I just want them to keep it to themselves and not shove it down the country’s collective throat. As far as government as an entity is concerned, if one belief is represented, all must be, or you are violating both the establishment and free exercise portions of the amendment. One last thing about what the founders thought. I believe that most of them were Christian and when they used words like “creator” most were thinking of the Christian God, but not all were. There were some humanists and even some agnostics who worked to hammer out our founding documents. The words were chosen carefully though so as not to identify the creator. That way each citizen was free to interpret it in their own way. Congress shall make no law respecting an established religion or prohibiting the free exercise thereof; What’s so hard about understanding that?

. . . or abridging the freedom of speech, or of the press; - Ask yourself this question; “Am I free to say anything I want?” The answer is no. Aside from the old “you can’t yell fire in a crowded theater” or the more recent “you can’t yell bomb on an airplane,” clichés, there are a great many things we are not permitted to say, that under the constitution, we are lawfully permitted to say. For instance, you are by law permitted to walk up to the fence that surrounds the White House and begin chanting F-you at the residents. So long as your words are not accompanied by an act or threat of violence, you are not breaking any laws and you are exercising your first amendment rights. However, you will be forcibly removed, made to stop your chant and most likely jailed. They will probably charge you with disorderly conduct and you will face a little jail or a hefty fine or both. Your free speech has just been abridged.

As far as the press goes, the financial market is driving the direction of press freedom more than the government. But with the new media formats such as this one we are using right now, come attempts by the government to exert control over the internet. (We’ll touch on this more when we get to the 4th Amendment).

. . . or the right of the people to assemble, and to petition the government for a redress of grievances. We have briefly touched on the assembly issue with the way that federal, state and local governments are dealing with the Occupy movement. For my friends in the TEA Party, it could just as easily be one of your gatherings that could be interrupted by law enforcement. You don’t really believe they would do it, and they will be hesitant, because some of you are armed, but make no mistake, if the government felt like you were possibly raising enough of a fuss to actually threaten the establishment (not the party balance, but the real power players) they would and could shut you down. They have more and better weapons and equipment, I don’t care what you have, it’s not enough. As far as a redress of grievances, that has become the sole realm of the Supreme Court, which is kept stocked by elected officials.

Now for the hardest to accept part of my argument;

There is no one to blame but ourselves.

It’s true. For all the ranting and raving that both the politically active and ignorant do about “how the damn politicians are ignoring us and doing what they want” and blah, blah, blah . . . it is the American people who have allowed these abuses to take root. It happens because of the team mentality – two party system we have. We are quick to criticize and demand concessions from those on the other side of the aisle, but silent when our guy or gal is doing the same thing. I heard damn few Republicans criticize President Bush when he enacted the PATRIOT Act because it was for our safety, but the Democrats were vocal. Then a few years later when President Obama kept the Act in place and then stiffened it by giving the office the right to arrest and detain American Citizens indefinitely the Republicans were beside themselves, but the Democrats were for the most part silent.

Hey, Lincoln suspended habeas corpus, so it’s not like this is something new.

We are letting them take our rights away for the sake of what? Safety? I am now becoming more concerned about what my government is going to do to me than I am about what some terrorist might try to do. I have a chance against a terrorist; I stand no chance against a power hungry empire.

This one ran long, I guess because I’m happy about being back. I’ll shoot for brevity in the future. Next time we’ll look at the realities of the Second Amendment. Lock and load.