The Bill of Rights

While each of the first ten Amendments may not be misinterpreted very often (I would argue that the Second Amendment is misinterpreted more often than the rest), the Bill of Rights as a whole is widely misunderstood.

We've already discussed the nature of rights as inherent in each individual and being associated with personal property. With that understanding that rights are inherent and not granted by a higher power (except perhaps God, if you're a religious person, but that's another debate), you already know more about the Bill of Rights than most Americans.

It is widely understood that the Bill of Rights grants you your rights. The First Amendment grants you freedom of religion and freedom of speech. The Second Amendment grants you the right to keep and bear arms. And so on.

Absolutely not. I don't have freedom of speech because of the First Amendment. I have freedom of speech because damn it, I'm going to say what I want to say whether the government likes it or not.

The Bill of Rights gives us nothing. In fact, the Constitution doesn't apply to We the People. The Constitution was written by We the People to create and place limitations on government. The Bill of Rights doesn't grant us our rights, it protects those rights from the government.

Many people would only ratify the Constitution with the promise of a Bill of Rights. However, many others were able to predict the confusion we now see today. A Bill of Rights would be a good idea, they said, except that if we list certain rights, some people will think those are the only rights we have!

They were absolutely right, and one of the reasons I decided to write this book is to help people understand that we all have many rights which are not explicitly listed in the Bill of Rights.

Preamble to the Bill of Rights

Just about everyone knows the Constitution has a Preamble. Many people were required to memorize it in school (I'd prefer if they had to memorize the Bill of Rights). However, almost no one knows the Bill of Rights also has a Preamble.
One day, I was reading a book and I came across a discussion of the Bill of Rights and its Preamble. I'd never heard of such a thing! When I looked it up and found that indeed, the Bill of Rights does have a Preamble, my first thought was: "I'll be damned. Bob, you're a hell of an idiot."

Upon further reflection, I realized I was too hard on myself. I didn't know that the Bill of Rights has a Preamble because it's almost never printed. During this period of discovery for myself, I went to several local bookstores and found their copies of the Constitution. I looked through these copies of the Constitution-each bookstore had several types-and not one of them included the Preamble to the Bill of Rights.

Now, I think the Preamble to the Bill of Rights is a particularly important document, because it is very revealing. Perhaps this is why it's rarely printed. We don't want you to know what your rights are, or you might be able to protect them.
With that introduction, here's the Preamble to the Bill of Rights:

The conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government, will best insure the beneficent ends of its institution.

The Preamble to the Constitution lists the reasons we establish the Constitution. The Preamble to the Bill of Rights lists the reasons we establish the Bill of Rights.

It says we have a Bill of Rights to prevent the misconstruction (deliberate misunderstanding) or abuse of the powers granted to government through the Constitution.

The Bill of Rights is an addition of "declaratory and restrictive clauses." We aren't asking for freedom of religion. We're telling the government: "We have freedom of religion and there's nothing you can do to change that."

This coincides with the fact that the Bill of Rights grants us nothing, but only limits government.

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.

Everyone knows the First Amendment protects freedom of speech. Unfortunately, they consider it a privilege granted by the First Amendment, rather than an inherent right in every individual.

An observant reader will notice that the First Amendment doesn't say "you have freedom of religion." What the First Amendment actually says is: "Congress shall make no law…"

Personally, think the world would be a much happier place if the Founding Fathers had placed a period after "Congress shall make no law."

All sarcasm aside, there are several rights enumerated in-not granted by-the First Amendment. Let's break it down and see what the First Amendment really says.

No establishment of religion; no prohibition of the free exercise of religion; no violation of free speech; no violation of free press; no violation of the right to assemble; no violation of the right to petition.

We're going to discuss many of these issues in their own chapters, but let's briefly go through them.

No establishment of religion. This means we can't have an official religion in the United States. Government can't officially recognize one religion over another. Can a Congressman say a prayer before voting on an important law? Yes. Can he require anyone else to? No.

No prohibition of the free exercise of religion. Just as government can't force you to practice any "official" religion, they can't prevent you from practicing your own religion. I don't believe in Buddhism. But that doesn't mean I can prevent my neighbor from being a Buddhist. Neither can government.

No violation of free speech. The idea behind protecting free speech was to ensure that the people could say bad things about government if they wanted to. However, it should not be construed to mean that this is the only valid application of free speech. I can say anything I want to say, whether you like it or not (including profanity).

No violation of free press. Following the same principles of freedom of speech, government can't censor the media. The Founding Fathers recognized that a possible loophole in the words "freedom of speech" would be: someone could construe that as meaning only the spoken word is protected, rather than all communication. So the freedom of the press was added to close that loophole. At the time the Bill of Rights was written, there was no radio, television, or internet. There were books and newspapers. Freedom of the press should be interpreted to extend to all communications media.

No violation of the right to assemble. This is another extension of the idea of free communication. It has been interpreted to mean two things. Some claim it means people can gather to protest the government. Others say it refers to freedom of association in general. I contend that it was written to do the first, but should be interpreted to extend to the second as well.

No violation of the right to petition. Since We the People are the only source of political power in this country, we need to have the ability to tell the government "we don't like what you're doing," hopefully without resorting to violence. That's where the right to petition comes in. It's an extension of free communication, relating to direct communication with the government.

It seems the right to petition has long been forgotten, however. A group known as We the People Congress, founded by a man named Bob Schultz, has been petitioning the government for a redress of grievances with relation to the income tax for a number of years. To date, their petitions have been ignored.

The First Amendment is the most frequently referenced clause in the Constitution. It's the most frequently referenced law in our entire nation.

Here in Colorado, there is an independent bookstore (Tattered Cover Book Store) which is devoted to the preservation of the First Amendment.

It's also frequently violated. The FCC regulates and censors media. There are "free speech zones" set up so people can speak their minds without getting in the way. Peaceful protestors of government are harassed, beaten and killed by police. Petitions go unanswered. People think we have freedom of religion, but if you can still claim we have complete freedom of religion after counting all the "faith based initiatives" in government today, you're out of your mind.

Second Amendment

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.

We have a right to life, Liberty, and property. We have a right to defend our life, Liberty, and property. This could be called "self-defense." It has been suggested by some people that we do not have an inherent right to carry guns, but that we have a right to defend ourselves with equal force as a potential attacker may bear.

That may well be valid, but personally, I think it overlooks a key principle: You have a right to use your property however you see fit. If that property is a gun, you have a right to carry it. You also have a right to acquire property through voluntary trade (a quid pro quo exchange).

Either way, it makes little difference. There's a reasonable expectation that a potential attacker may have a gun. Therefore, you have a right to own and carry a gun in order to protect yourself with equal force as that of your potential attacker.
Once again, this right is not granted by the Second Amendment, but protected by it. Let's pick apart a few common misunderstandings about this amendment.

There is a popular belief that the Second Amendment does not protect the right of individuals to keep and bear arms, but only the militia. Whenever that argument is used, they are speaking of the National Guard as the militia.

Already, we established that the National Guard is not the militia. We the People are the militia. That alone debunks that claim, but let's dig a little deeper.

The Second Amendment refers to a "well regulated militia." This also is the subject of much controversy. The confusion stems from a change in the language between 1791 and today. Today, "well regulated" means we have tons of laws. When the Bill of Rights was ratified, however, "well regulated" meant "well prepared" or perhaps "well trained."
So how can we interpret the Second Amendment's requirement of a "well regulated militia"?

We can interpret it to mean that We the People need guns. If you turn back to 1.8.16, you'll remember that there is the possibility that Congress is required to supply us with guns. You'll also remember that this has never been done, because during the Revolutionary War, and throughout American history until very recently, almost everyone had his own guns.

And just in case anyone still doesn't get it, the Second Amendment finally says that the right of the people to keep and bear arms, shall not be infringed.

Third Amendment

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.

It's very unlikely this will ever be called into usage again, because of the change in the way we fight wars. In the eighteenth century, it was not uncommon for soldiers to march into a town and set up camp in whatever house they wanted. They had all the guns and power, so who was going to stop them?

Well, that's one of the reasons we signed the Declaration of Independence and fought the Revolutionary War. We got tired of British soldiers invading our homes.

In modern times, the military is much more sophisticated, so there's little reason to think this will ever be relevant again. However, we should also note that it offered less protection than it should, because it includes a loophole. That loophole is that in a time of war, soldiers may, under direction of law, enter a home without the owner's consent.

Of course, that loophole was fairly well closed by the Second Amendment. It would be more convenient for the soldiers not to invade my home if they're afraid I might actually defend it.

Fourth Amendment

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.

This is one of the most important amendments. If you want to protect your Liberty, you must understand this. The Fourth Amendment protects you from the police or other government agents. It's fairly easy to understand, but it's also rarely obeyed by the police.

Let's break it down.

You're secure in your persons, houses, papers, and effects. Your person is your body. Your house is your home. Your papers include identity cards or other forms of identification. Your effects are all your other property.

No one may look search your physical body for contraband; no one may enter your house and look around; no one may demand to see your papers; no one may search any of your other property….

No one may arrest you or kidnap you; no one may take your home from you; no one may take any of your papers; no one may take or steal any of your other property…

Unless they get a warrant.

So, yes, the police can arrest you. They can search your property. But they must get a warrant. The warrant must be based upon probable cause, supported by oath or affirmation.

There's a possibility that they can get a warrant and find out you really didn't do anything wrong. They've then violated your rights.

Because the accuser has to swear an oath before he gets a warrant, if he turns out to be wrong, you may file a lawsuit against him for wrongful prosecution.

Today, the government believes that they don't need a warrant to search your home. They believe they can arrest you without a warrant if they have a "reasonable expectation" that you committed a crime.

In fact, the only time an officer does not have to get a warrant, is to stop a crime in progress (so does any person who witnesses a crime in progress-citizen's arrest).

When you're driving down the highway, and you come to a checkpoint, the police will pull you over and demand to see your driver's license. You are not obligated to give them your papers. They will want to search your car. You are not obligated to allow them to search your car.

They may be very frustrated with this. They might say something like "Well, we'll get a warrant." You can call their bluff, and make them get a warrant. And when they don't find what they're looking for-this must be listed on the warrant-you can sue the officer(s) involved.

Fifth Amendment

Anyone who watches TV or movies is familiar with the Fifth Amendment to a certain degree. We've all heard "I plead the fifth." Well, that "the fifth" is a reference to the Fifth Amendment, but it's only just one small part of the Fifth Amendment. Let's have a look at it.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Certainly there's much more here than just what they talk about on the television. There are lots of rights listed in just this one amendment. What they all have in common is that they are related to your rights during a criminal trial.

The first protection is that you cannot be held accountable for a crime except by indictment of a Grand Jury. This isn't a conviction. But the Grand Jury has to decide that a crime took place, and that it seems probable that you may have committed the crime. Then the trial begins and you may or may not be found guilty.

Military men (soldiers and sailors) or Militia men, when in service in time of war or emergency do not have this same protection. They don't go to a court. They go to a special tribunal known as a Court Marshall.

There is also the famous "double jeopardy" clause in here. It means you can't be tried for the same offense more than once. If you're found to be innocent, then you're innocent and that's the end of it.

"The fifth" everyone remembers is the next clause which requires that you are not obligated to incriminate yourself. Since 1966, it has become standard procedure for police to inform you of this during the arrest process, because of a Supreme Court case a conviction was overturned due to the fact that it was based on a confession the defendant was unaware he did not have to give.

You may not be deprived of life, Liberty, or property without due process of law. Due process means you have a right to a common law court in the state where the crime was supposedly committed.

The Fifth Amendment also specifies that private property can't be taken without just compensation. Unfortunately, just compensation is not defined. And the implication is that the government is allowed to take private property without the consent of the owner as long as they provide just compensation. That idea is not compatible with Liberty.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence (sic).

This Sixth Amendment continues along the same lines as the Fifth Amendment, protecting your rights during that time when your Liberty is most at risk-when you've been accused of a crime. Depending on the crime, if you're found guilty, you could lose some of your property, you could your Liberty (imprisonment), or for particularly serious crimes, you might even be put to death. This is serious stuff.

You have a right to a speedy and public trial. It must be speedy, because it would be very unfortunate if you were arrested, kept in jail for five years, and then found to be innocent. Oops. We've just taken five years of an innocent man's life.

There is a reasonable expectation that, if you're accused of murder, you can be held in jail until your trial because you might be a threat to the lives of others. However, there is also a reasonable expectation that if it turns out you didn't actually kill anyone, you won't have spent months or years in prison before your trial.

The trial also has to be public. Perhaps it would be nice to keep certain trials under the radar. After all, if you're accused of rape, you don't want everyone to know about it. However, that inconvenience isn't so bad when placed into the context of star chambers.

In many third world countries, a person would be arrested (usually around two in the morning), taken behind closed doors for a "trial," never to be heard from again. If anyone ever had the audacity to ask what happened to that person, they were just told, "He was guilty. Now he's dead."

That's why a public trial is important. It prevents "star chamber trials" wherein there is no way to ensure the government is playing fair.

"But that's just in other countries," people are certain to say. "That happens in Soviet Russia, Nazi Germany, maybe in China. Certainly it could never happen in the United States!"

Yes it could. Recently passed legislation presumes to allow star chambers right here in America. I'm not sure if it has ever been used (since it's not a public trial, one is less likely to find out about such a thing).

The reason people think it can't happen, though, is because of the Sixth Amendment. They may not know what the Sixth Amendment says, but they have an understanding of the idea that criminal trials are public.

You also have a right to a trial by jury. Of course, juries are not perfect. But let's take a quick informal survey. Would you rather trust your fate to a single judge, or to a panel of We the People?

The trial must be in the same district as that in which the crime was committed, and the jury has to be from the same district. The districts are determined by law before the trial. In theory, these districts can change…but they can't change a district on you all of a sudden in order to make your trial harder. It has to have been changed before your prosecution begins.

You have the right to know the nature and cause of the accusation. The nature of the accusation is whether it is a criminal or civil accusation. The cause is the specific crime in question (am I accused of murder? Theft? Rape?).

If you don't know these things, you will never be able to prepare a defense for yourself in court.

You have a right to be confronted with the witnesses against you. If someone is going to accuse you of a crime, they have to be willing to say it to your face. Otherwise, it's too easy for them to lie (perhaps as an attempt to settle some grudge). Unfortunately for all of us, many drug arrests today are based on anonymous tips.

It will take considerable time to force the police to start obeying the Constitution they've sworn to defend. In the meantime, you can do your part to defend Liberty by NEVER giving police an anonymous tip that may land someone in trouble. It's not only the ethical thing to do, it's the Constitutional thing to do.

You have compulsory process to obtain witnesses in your favor. That means, if someone sees something that will get you off the hook, you can force them into the courtroom to give their sworn testimony on your behalf. Speaking in terms of Liberty, this is a shaky situation. On the one hand, it allows the accused to present his case to the best of his ability, and with a fullness of information. On the other hand, the witness who is forced into the courtroom loses some of his Liberty.
One would hope witnesses would voluntarily defend an innocent man if their testimony could keep him out of jail. However, having compulsory process guarantees it.

You have the right to have assistance of counsel for your defense. This does not mean that you have to hire a lawyer. In a common law jurisdiction-the highest legal jurisdiction in the United States, and sadly, the least popular-you may represent yourself, or you may ask anyone to assist you. But they are your assistant, not the other way around.

When you hire a lawyer, you become incompetent in the eyes of the court. You're expected to stay in your seat and let the judge and lawyers decide your fate. Presumably, the lawyer would know more about law than you do, however, the lawyer is an officer of the court. If you're standing trial, do you want an officer of the court to speak for you?

At this point, we're getting into some very complicated issues, so I'm going to leave this discussion open for the time and proceed with the Bill of Rights. We'll get back to jurisdictions and lawyers in a later chapter.

Seventh Amendment

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Again, we see a reference to common law. Perhaps now you're beginning to realize its importance (though we won't fully explore it until a later chapter).

The Seventh Amendment simply protects your right to have civil cases tried by a jury. However, this only applies to common law jurisdiction. Most civil cases are not tried under common law.

Remember than if you're in a courtroom without a jury, either less than twenty dollars are at stake, or it's not common law. The question becomes: how do you get a common law venue? I'll tell you right now that it's very difficult, but we'll go into more detail when we talk about jurisdictions.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment is very straightforward, sounds very good, and offers little to no protection. It demands that excessive punishments cannot be imposed. Unfortunately, it does not define what is or is not excessive.

Some people believe the death penalty is cruel and unusual punishment, some people support it. If people can't even agree whether or not something as massive as death is cruel and unusual, certainly they won't agree on whether or not other, lesser punishments are excessive.

My suggested repair for this is to require a jury to decide whether any specific bail, fines, or punishments are excessive, given the situation at hand. Admittedly, this would not be a perfect system either, but it offers at least some level of protection, whereas the Eighth Amendment as it stands really does not.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

One of the greatest arguments against having a Bill of Rights was that people would, by some sad series of events, come to believe that only those rights listed in that document actually existed. Logically, if you carry this line of thinking to its natural end, it means people will think their rights are somehow granted by the Bill of Rights.

Of course we know better than that, but many people do not. I have seen Bill of Rights memorabilia, produced by organizations devoted to the study of history, which imply that our rights are granted by the Bill of Rights. If historians get this wrong, of course average people like us are prone to.

The Ninth Amendment (and the Tenth Amendment, actually) acts as a legal bookend. Our Founding Fathers included this so that people would understand that, yes! We have all of our rights, not just those listed in the Bill of Rights.

Whenever someone claims the Bill of Rights grants us our rights, you can point them to the Ninth Amendment and say "No it doesn't." The Ninth Amendment does not say, "The granting in the Constitution of certain rights." It says, "The enumeration in the Constitution of certain rights." This is proof positive that the Constitution and its Bill of Rights don't give us anything. They protect our already existing rights.

If anyone ever calls one of your rights into question, you may point to the Ninth Amendment to demonstrate that this right is also Constitutionally protected. However, you must be careful to understand what your rights are. It would not do anyone any good if you claimed the Ninth Amendment protected something that really isn't a right at all, but only a privilege.

Basically, we have thousands of rights. Maybe hundreds of thousands or possibly even millions of rights. And just because a handful of important ones are listed in the Bill of Rights doesn't mean any of the others are less valid.

Tenth Amendment

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.

This is another "legal bookend." The Founding Fathers knew they couldn't think of everything they don't want the government to do, and certainly there wouldn't be room to list them all in the Constitution (otherwise, it would be thousands of pages long).

The Tenth Amendment establishes that if a power is not explicitly listed in the Constitution as having been granted to the United States, they can't do it. The states may be able to, but not the United States.

Of course, this is frequently ignored by a Congress that wants more power than they rightfully have.

Note that the states may do things not explicitly listed in the Constitution. Certainly this is better than at the national level, but We the People must be ever watchful of the states as well. The Constitution does not place as many limits on them, and they frequently abuse their powers.

You can see that the Bill of Rights offers us a lot of protection from the government. You can also see that it is frequently ignored by politicians who view it as nothing more than an inconvenience.

Ultimately, it is up to We the People to defend our rights. The Bill of Rights offers us formal protection, but it's not enough. It is also possible that, by a sad series of events, the Congress may decide to repeal the Bill of Rights. While they could, in theory, do so, it makes little difference. They can burn the Bill of Rights and I will mourn the loss of a beloved monument to Liberty, but they cannot take away my rights.

The only difference it makes is whether or not the government still recognizes those rights. While the Bill of Rights is still fortunately intact, it is clear for me to see that the government doesn't recognize our rights anyway.

It's time to wake up and smell the tyranny.

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