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Follow-up to invasion of the personal liberty snatchers By James Higdon 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 . —Second Amendment to the Constitution of the United States of America 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. —Fourth Amendment to the Constitution of the United States of America) April 29, 2001 It is said that one of the primary differences between the political right and the political left is reflected in the support for these two amendments. The right wing supports the Second Amendment (and the Tenth) as the guarantee of a free society, and the left supports the Forth (and the other seven). I contend that all ten are paramount, in addition to a reasoning judiciary that fully comprehends that the founding fathers intended a government of, by, and for the people. Addressing the Second Amendment, it is my personal belief that there is some confusion created by the founding fathers in the wording. I believe that it may indeed be that its authors intended that all citizens hold the right to possess fire arms. Further, most legislation fails to address the issue of gun control in a reasonable constitutional manner. That said, I still believe that legislation can be passed that addresses the reasonable state (i.e., of, by, and for the people) interest in protecting the lives and welfare of children and society. The NRA makes a fatal mistake in not addressing the issue of gun control on these terms; that it is in all of our best interests to be safe in our homes, in our schools, in our post offices, and on the streets. The extreme right wing believes that the primary purpose of the second amendment is to allow citizens to arm themselves against a renegade government. This may have been the founding fathers' intent; we can never know. But logic dictates that such an assumption in this day and age is pure folly. If this is a government by our own hand, we are only arming against ourselves. And unless we arm every citizen with high-tech weaponry, including gas, bombs, helicopters, and F16s—as Bill Maher once said, "If Janet Reno wants to come in, she's coming in." How much better it is to legally limit Janet Reno's (or John Ashcroft's) power to enter in the first place. And that is where support of the Fourth Amendment is of a fundamental necessity. The Fourth Amendment allows intrusion, by the state, into our homes, effects, or persons only when it acts reasonably to protect the people. Whatever differences I have with fellow citizens who are of a more conservative bent are only by degree. Our differences can be resolved by free and open public discourse, and ultimately resolved by free and open elections. Any reasonable person, conservative or liberal, would not disagree. George W. Bush, our first appointed president, is not a conservative (compassionate or otherwise). He is member of the power elite whose aim is purely to entrench the interests of political and financial power. He seeks to accomplish this mission by appointing a judiciary whose society is formed, financed, and groomed by the same power structure that gave him his political birth. George W. Bush understands that an armed citizenry cannot defend itself from the might of the federal military machinery. But while perpetrating the fears of the far right, that liberals and moderates seek to eliminate the power of the people by taking away their guns, he sets about to remove the possibility that the people will be able to protect themselves by law. While the Federalist Society, and the Bush administration, claim that moderate judges have proven to be judicial activists, they seek to claim an intellectual monopoly on legal reasoning by proclaiming an "originalist" point of view. According to their theory, anything that is not specifically written in the Constitution does not belong there. Any conflict in interpretation must be resolved by construing the intent of the founding authors. But delving into the minds of people who have been dead for nearly two hundred years is not possible. The founders' personal thoughts are infinitely more obscure than anything written on the guiding document they left us. They did, however, leave us with the knowledge that the Constitution of the United States was written upon common law principles. Contained in the common law (developing over 500 years) are guiding principles for constructing expanded interpretations for laws written at a time when modern situations and facts occur that could not be anticipated by the original authors of those laws. What we now recognize as the powers of the Supreme Court were constructed from these principles in a dispute between John Adams and Thomas Jefferson during a time when, obviously, the founding fathers still lived. Personally, I find the arguments of the Federalist Society (who recognize Rehnquist, Scalia, Kennedy, and Thomas as among their guiding lights), specious at best, and cynically misleading at worst. They seek to create a situation where only they can truly understand the law that removes power from the hands of the many, and places it in the hands of the few. A case in point is Gail Atwater (soccer mom) who got caught, by a Lago Vista police officer, driving without her seat belt fastened. In the State of Texas, this normally would subject her to a $50 fine. She paid the $50, but not before being verbally berated by the police officer, handcuffed, and arrested in front of her frightened children, then taken downtown to be booked, finger printed, arraigned, and forced to put up a bail bond of more than $300. The Constitution provides that citizens my seek a remedy from the courts when their fundamental rights are violated. Ms. Atwater did, eventually taking her case before the Federalist Society's favorite four on the United States Supreme Court. In a stunning 5–4 decision (Rehnquist, Scalia, Kennedy, Thomas, and Souter, in the majority), this court, while recognizing that there was no reasonable basis for the state to make such an arrest, insisted that it was permitted to do so. In short, this court ruled that any state may handcuff and take into custody any citizen who violates even the smallest offense that the state has devised a statute against. That bears repeating: The United States Supreme Court has ruled that any state may handcuff and take into custody any citizen who violates even the smallest offense that the state has devised a statute against. Such unrestrained authority grants the state and the police "a power that places the liberty of every man in the hands of every petty officer." (Legal Papers of John Adams) Our liberty now depends on "the state of digestion of any officer who stops us or, more likely, upon our obsequiousness, the price of our automobiles, the formality of our dress, the shortness of our hair or the color of our skin." (Amsterdam, Perspectives on the Fourth Amendment, Minnesota Law Review (1974)) I pray you keep this in mind, whether you feel yourself liberal or conservative, as George W. Bush makes his appointments to the federal courts. And if you have been a long time supporter of the NRA, and agree with George W. Bush that the biggest threat to our country is the regulation of handguns, ask yourself this: If you value your liberty and your right to be free from being unreasonably taken into custody, and you are being pulled over for a minor traffic violation; would you rather shoot it out with the police by using the handgun in your glove compartment, or would you rather feel secure that you can vindicate your rights by petitioning a fair and balanced judiciary? Once you have been forced to vindicate your rights at the point of a gun, against the vast power of the federal government, instead of in a court of law, your liberty has already been lost. |
