The first 10 Amendments to the U.S. Constitution are collectively known as The Bill of Rights.
I know you know that, but do you know why?
According to History.com the concept’s beginnings go back to 1215 when England’s King John accepted the terms of the Magna Carta.
Shifting ahead about 575 years, some delegates to the Constitutional Convention thought that there should be a list of rights reserved to the people at the start of the U.S. Constitution. An expanded preface.
That idea was defeated and, after adoption of the Constitution in 1789, James Madison of Virginia sifted through the Bills of Rights included I the states’ own constitutions and chose 12 to be sent to the states as the first Amendments to the Constitution.
Ten – the Bill of Rights – were approved. Two were not. They dealt with the compensation of Members of the Federal Congress and the number of Members of the U.S. House.
The constant was this: The Bill of Rights set limits on the Federal government’s powers.
Article I: Congress shall make no law …
Article II: … shall not be infringed.
Article III: No soldier shall …
Article IV: The right of the people …
Article V: No person shall …
Article VI: … the accused shall enjoy …
Article VII: … the right to a trial by jury shall be preserved …
Article VIII: Excessive bail shall not …
Article IX: The enumeration of certain rights shall not be construed …
Article X: The powers not delegated to the United States … are reserved to the States respectively, or to the people.
None of these protective Amendments is absolute. Most famously, is Justice Oliver Wendell Holmes’ 1919 caution about the First Amendment in Schenk that
“The most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theatre and causing a panic.”
Note the word, “Falsely” which is too often left out. Shouting ‘fire’ when there really is a fire is a good thing.
The holding in United States v. Schenk was partially overturned in 1969 when the Court held that speech is protected unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
I point that out so that if Donald Trump is charged with inciting the January 6th insurrection you can quote Brandenburg v. Ohio at the Keurig machine.
Justice Antonin Scalia, writing for the majority in the Heller decision which affirmed the right of an individual to “keep an bear arms” wrote:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
You can even own a bazooka or a .50 caliber machine gun, but the hoops, background checks, and fees the Bureau of Alcohol, Tobacco, Firearms, and Explosives will exact might not make them the perfect Father’s Day gift.
In a bond proceeding, a million dollar bail to a billionaire who has access to his or her own business jet might not be excessive. A million dollar bail to a serial Times Square pickpocket would almost certainly run afoul of the Eighth Amendment.
And, as those of us old enough to remember the days when anti-war activists could purchase a certificate certifying the bearer as a member of the clergy to avoid the draft was not seen as a protected activity under the First Amendment.
I had typed “honest-to-God member of the clergy,” but I don’t want to run afoul of the authority higher than the United States Supreme Court.
END SIDEBAR II
Language guru Frank Luntz has suggested we change the discussion over firearms from “gun control” to “gun safety.” I agree.
It is time for the Republicans and the Democrats in the House and Senate to enact legislation that will have a real effect on gun safety in the United States.
See you next week.