Originally Published — August 05, 2013
Note: Misunderstanding the Constitution and it’s relationship to the Bill of Rights is what drives so many to engage in ignorant arguments — taking modern day interpretation over the original intent of those who penned these sacred texts. By claiming the Bill of Rights grants “rights” to “the people” by the power of the federal government we pollute the meaning, purpose and reason for why we have a Bill of Rights in the first place.
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The seemingly ongoing debate regarding our Bill of Rights’ First and Second Amendments is often done with little or no understanding of either the Constitution or the meaning, purpose and reasoning behind the Bill of Rights itself.
One must engage in a little education, reading and information gathering — beginning with the Federalist Papers — to understand exactly how this relationship between the people, the states, and the federal government all works together. The common misnomer is that our republic was set up as a pyramid of power. At the top being the federal government, in the middle, the states, and at the bottom the people themselves. This mental image is upside down. It’s turned on its head, 180 degrees out of whack.
The quickest way to understand this relationship between the people, the states and the delegated powers and purposes of our federal government one should begin with James Madison in Federalist No. 45 regarding the distinction between the federal government’s “few and defined” powers and those numerous and indefinite held by the states and the people:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
The Bill of Rights, properly understood, neither adds nor takes away anything from the Constitution, rather, it’s an amplifier of the Constitution, reaffirming in the strongest terms that which the federal government cannot do. Where the Constitution itself is told what power and authorities it has been given.
By putting forth the notion that the Bill of Rights gives the people their First, Second, Third, Fourth, Fifth and Sixth Amendment rights, ignorant opinions do more harm than good to the future of our nation. Mis-informed arguments mis-lead others taking them down the dangerous path of believing that they are given voice and freedom by virtue of their federal government. This has clearly lead to today’s entitlement mentality and what some call the Nanny state.
This same thinking causes some to believe they are granted the ability to possess firearms to defend themselves or hunt at the behest of the federal government. Far too many never stop to think that anything granted can also be taken away. Thus cannot be considered a “right” at all. Rights are granted by God to mankind and acknowledged by civil governments as possessed by the people. It is truer to say that free speech and assembly and the security of firearms allow for the creation of the federal government than the other way around. When one believes that rights are granted by government they are putting the creature above the creator, “we the people” and sowing the seeds of tyranny.
During the Federalist debates strong arguments where made against a Bill of Rights for fear that future ignorance might cause a low information citizenry to believe that the list therein were granted by the government to the people rather than the unalienable rights of the people that the federal government was created and entrusted to protect. The Bill of Rights is mostly a list of things for which the federal government is forbidden from taking action. The Bill of Rights is a reaffirming — a duplicating in negative terms — those things the federal government has no authority over. These are areas of personal liberty that are the foundation of a free people.
What the anti-federalists said through their Bill of Rights is that the federal government has absolutely no say when it comes to the issues of personal freedom such as speech, association, assembly, the press, firearms, privacy and evidence before searches and seizures, right to a jury trial and on and on. It was putting ink and voice to what John Jay meant when he said “Silence and blank paper neither grant nor take away anything.” Jay feared exactly what has happened with the perversion of the Bill of Rights. That they would someday be thought of as things tolerated or allowed by the federal government and within the purview of being limited or taken away. The Supreme Court has shamelessly and repeatedly reaffirmed Jay’s fears as well.
While the Declaration of Independence is the why of our government, the Constitution is the how of our government. The Bill of Rights was added to make sure no one assumed that the “how” of government gave the government anything but limited power and defined authority while leaving the states and the people sovereign, independent and free of the long history of governments abuse of power and oppression of the governed. The Bill of Rights is a brief and simple reaffirmation of what the federal government cannot do, as hidden (in the silence) between the can dos and must dos of the Constitution.
So the next time someone tries to tell you the First Amendment is not absolute, that you cannot yell “fire” in a crowded theater, let them know that it’s only true in the case of local ordinances or state law. The Constitution is irrelevant regarding the issue. “Congress shall make no law…” is simple, straight forward and absolute.
Equally, the next time someone tries to argue that the Second Amendment is not absolute, that the federal government can regulate or worse prohibit certain types, styles or sizes of firearms. Let them know that the Bill of Rights neither prevents nor grants anything to the individual. The only entity that can prevent a citizen from towing a howitzer behind his SUV is another person prohibiting him from doing so on his private property or the state in which he is found pulling it violates local or state laws. So stop with the non-sense, stop believing you are a subject rather than a free citizen. The Second Amendment (far from limiting an able bodied person from having the right to own military artillery, actually) tells the federal government it has no power to approach the fringes of this issue.
David is a perpetual student of religion, politics and American history. He lives in Southern California with his wife and their three children. Writer, thinker, speaker, blogger, he is the author of many articles as well as the book, The Conservative Directory – The Little Black Book of the Cultural Counter Revolution (1994). The book was honored with praise from Charlton Heston, Bay Buchanan, Joseph Farah among many others. You can follow him on Twitter @cogitarus. He’s available for speaking engagements upon request.