Abandoning the Constitution! Who's to blame for our loss of rights? By John Silveira
Issue #121 • January/February, 2010

I walked into the offices of Backwoods Home Magazine the other day and heard a familiar voice exclaim, "Today, we can go to jail or prison for simply exercising the rights we used to assume were given to us by God. Our founders called them our Natural Rights. They were enumerated in the Constitution. Since childhood we have been taught that our soldiers died on foreign soil to protect these rights. But nowadays exercising them can land you in the clink."

It was the voice of O.E. MacDougal, the poker-playing friend of Dave Duffy, the publisher of BHM. I followed the sound into Dave's office and there they were, Mac and Dave. There was also an open bottle of GatoNegro merlot wine on the corner of Dave's desk along with an empty wine glass. Dave and Mac were already imbibing.

"Hey," Dave said when he saw me, "pull up a seat and join us. We were hoping you'd show up."

He nodded toward the empty glass. "Pour yourself some wine," he added.

I did. Red wines are my favorite and merlots are among my favorite red wines.

"This is great," I said after taking a sip. "Expensive?"

Dave said, "Nope. Mac bought it across the street at McKay's. It's $5.13 a bottle."

"Across the street? $5.13 a bottle?"

He nodded.

"How'd I miss this?"

I took another sip.

"Where's it from?"

"Chile," Mac said.

I enjoyed another sip, then asked Mac, "What were you saying about going to jail for exercising our rights?"

"What started the conversation was that Dave and I were talking about Plaxico Burress," he said.

"He's that football player who's gone to prison, isn't he?"

"Yes."

"I don't remember the details," I said.

So, Mac filled me in. "He was a wide receiver, first for the Pittsburgh Steelers, then for the New York Giants. He's retired, now, but he was in a New York City night club with a Glock handgun inside his waistband. It slipped down inside his pant leg and, in trying to regain control of it, he somehow set it off, shooting himself in the right thigh. He went to the hospital and, pretty soon, the police found out about it and he was arrested."

"The arrest being for...?" I asked.

"Having a concealed weapon without a permit, something that's almost impossible to obtain in New York.

"About a month later New Jersey police, along with police from New York, searched his home in New Jersey and found another handgun, some ammunition, and a rifle. They may well hit him with more charges unless he can present permits for those."

"Permits?" I asked. "You have to have permits to have guns?"

"In some states you do."

"And you don't think he should have been arrested?" I asked.

"That's what we were talking about. I'm saying we have a right to keep and bear arms and he was exercising that right, but there are many who think we don't. New York's politicians and bureaucrats are among them. Mayor Michael Bloomberg insisted Burress be prosecuted to the fullest extent of the law. He said any less than the minimum 3½ years for unlawfully carrying a handgun would be 'a mockery of the law.'"

"He did break the law," I said.

"He broke New York City's gun laws. But what Bloomberg conveniently left out is that the Second Amendment states, '...the right of the people to keep and bear arms shall not be infringed' is part of the Constitution, that the Fourteenth Amendment, also part of that document, makes it illegal for states to violate our rights, and the Constitution also says the document is, and I quote, '...the supreme law of the land.' Yet, he and the City of New York have virtually no problem violating that document, which ostensibly means that they're breaking the law. In fact, they're breaking a law that's supposed to be the most important."

"How many years should Bloomberg get?" Dave laughingly asked.

Mac just shook his head. "Well, apparently the voters of New York City think he should get another four years in office."

"That's right. They just reelected him," Dave said.

"So, what you're saying is that you think Burress should have the right to have been carrying heat despite New York City laws," I said flatly.

"I'm going further than that: I'm saying that until we change the Constitution, our politicians and bureaucrats should adhere to the supreme law of the land. They should obey the laws just as they expect us to. And, on that basis, he should have been allowed to 'carry.'"

I thought about all the gun laws I've heard about in this country and I said, "Well, I guess this sort of thing only happens with gun laws," I said.

"According to Mac," Dave said, "it happens with a lot of our rights."

"It does?" I asked Mac.

"Sure. There are asset seizure laws that violate your property rights that are not just illegal, but also discriminatory."

"Discriminatory?"

"Yes. In the first place, they're more apt to be enforced against minorities: that is, the darker your skin, the more likely you are to have your property seized. But more so, it's discriminatory because it depends on whose property it is."

"What do you mean it depends on 'whose' property?" I asked.

"You want examples?"

I nodded.

"Say you borrow my car and pick up a hooker. You're caught, in my car. The police can now seize my car and keep it."

"On what basis?" I asked.

"It was used in the commission of a crime. So, I'm just out my car despite the fact I had nothing to do with your actions."

"They can do that?"

"They can, and they do, everyday."

"Well, maybe that makes sense," I said.

"But, if you are caught with a rental car..."

"Don't tell me they don't take it," I said.

"Sorry, but I've got to tell you: They don't take it. Yet, the rental car has got to be just as guilty as my car.

"In fact, to make matters worse, many jurisdictions are now not seizing cars that aren't paid for because the banks started to complain that the erstwhile owners stopped making payments. So, police in those jurisdictions have stopped seizing them but continue to seize those that have been paid off. Still, under the logic—if we can apply that word to legal and bureaucratic thinking—of the asset seizure laws, the unpaid-for car is just as 'guilty' as the paid-for car.

"The same goes for houses. If you sell drugs from my house, even without my knowledge, my house can be seized. They'll actually take the house to court and it'll be the state of Oregon vs. The House at 123 Anywhere Street, or whatever, because it was used in the commission of a crime, and it's not up the law enforcement agency to prove anything, but up to me to prove my house is innocent. The difference is, unpaid-for houses can still be sold for a profit, so they're apt to take a house even though it has a mortgage on it, sell it, pay off the lender, and keep the profits."

"Wait a minute!" I said, "I thought you're innocent until proven guilty."

"That's me and you. We have rights, and the courts recognize that. But, according to their logic, property doesn't have any rights. So, I have to prove my house is innocent, something that's next to impossible.

"However, if you were selling drugs out of a Hilton Hotel, they won't seize the hotel even though, under the logic they use, the hotel is just as guilty as my house.

"Another real-life case," he continued, "was a doctor who owned a yacht. He had hired crew to man it for him. He pulled into port and the Coast Guard boarded for an inspection. They found remnants of a joint on his boat and seized it.

"In court, he argued the joint belonged to one of his crew. The prosecutor argued that it didn't matter because he couldn't prove his boat wasn't involved, so the doctor lost his boat.

"Now, let me ask you, do you think for even a moment the Coast Guard, or any other law enforcement agency, would seize a Princess Cruise liner, even if they found a suitcase full of marijuana on it?"

"I guess not...but why not?"

"They only seize from those who can't afford to fight back," Dave said.

"Now, you're getting it," Mac said. "Corporations can afford to and will fight back. Corporations are also campaign donors. Can you imagine the havoc politicians would raise with law enforcement agencies when their donors raised a hue and cry about unconstitutional laws being applied to them?"

"What's it take to prove your property innocent?" I asked.

"I don't think anyone's ever won one of those cases. Consider the poor guy that had several thousands of dollars on him and had it confiscated."

"Why was it confiscated?" I asked.

"It was too much money. The argument police and prosecutors use is that carrying too much money—though it's your property—is suspicious. So, you have to 'prove' it's not tainted to keep it.

"The guy thought he was going to win in court because he'd recently won a huge lottery, so it would stand to reason, or so he thought, that it made sense he could have a few thousand dollars on him. But the court ruled otherwise because he failed to prove he hadn't gotten the money illegally."

"Being a millionaire doesn't constitute some kind of reasonable proof that the money you're carrying is legal?" I asked.

"No!"

"So, they just take your property without any kind of real due process?"

"Today, under the vague wording of the Racketeer Influenced and Corrupt Organizations Act, or RICO, as it's known, they can and they do.

Violations of the 4th Amendment

"Today," Mac continued, "the Fourth Amendment, which prohibits unreasonable searches and seizures and prohibits warrantless searches, is badly limping if not almost dead. There are "sneak and peek" provisions in the PATRIOT Act which are clearly in violation of the Fourth Amendment, but that Act was duly passed by Congress and signed by President Bush without any regards to the Constitution."

"Sneak and peek?" I asked.

"Yes. Search warrants are supposed to be presented to enter and search property. What we have now are secret warrants, that allow law enforcement to enter property, search, plant bugs, and do whatever else they want without your knowledge.

"We also have warrantless eavesdropping. The Threat and Local Observation Notice database, otherwise known as TALON, and now superceded by the FBI's Guardian Tracking System, shows the government has spied on the Quakers, People for the Ethical Treatment of Animals, Veterans for Peace, and others, all without search warrants or any demonstration of probable cause, all also in violation of the Fourth Amendment."

"Is that such a big deal? If you're not doing anything wrong, what's there to worry about?" I asked.

"That's not even close to the question you should be asking. You should be asking, 'If I'm expected to obey the law, why aren't politicians and bureaucrats expected to?' These rights we're losing are supposed to protect us from our government. Our government now either denies they exist or they treat them as privileges."

"What's the solution?" Dave asked. "What should we do?"

"If we're now deciding we want a country without privacy, property rights, free speech, the right to arms, and whatnot, let's change the Constitution, not just disregard the law. What's the point in having rights if they're not respected? What's the point of having them when those rights are there to protect us from the very people taking them away?"

"What other rights are we losing?" Dave asked. He seemed concerned, now.

"Free speech comes to mind. We now have, as a matter of course, so-called free speech zones. It's government's attempt to sequester those who speak their minds at political rallies. You should also recall that people were not allowed to wear T-shirts that protested Bush's policies in his presence. This included along parade routes he attended.

"Under the new so-called anti-terrorism laws, our own government claims the right to arrest and hold citizens, indefinitely, without even pressing charges, providing witnesses against them, or allowing either the right to legal counsel or a speedy trial. This is a violation of the Fourth, Fifth, and Sixth Amendments.

"These violations go on and on and on. We're being denied our rights and, in the case of someone like Plaxico Burress, we can often be jailed for exercising them."

"But Burress has always been in trouble," I said.

"Are you under the impression the law would be kinder to you?" he asked.

I didn't answer.

Your rights and the mass media

"Why aren't there news stories about these violation of our rights?" I asked.

"Don't expect the mass media to protect you, because they've had chances to do that for decades. Although they've stepped up to the plate in some cases, by and large they've failed us year in and year out. The reason is, with the exception of guys like Vin Suprynowicz of the Las Vegas Review-Journal, reporters and other media people are woefully ignorant of what's in the Constitution so they don't have a clue as to when it's being violated."

"How could guys in the media not know this," I asked.

"Sometimes they do, as in Second Amendment cases, but most of them are anti-gun, so they ignore it.

"But often it's a case of 'where are they going to learn it?' Most journalists get their education in college and most colleges have enacted rules that violate the Bill of Rights. There are speech codes, there are rules against certain kinds of campus assemblies..."

"So they come out of college thinking it's okay," Dave said.

"That and the fact that colleges often convey the message that it may even be morally imperative to violate what some call constitutional rights if you think maintaining them will hurt someone's feelings.

"Even movies promulgate false ideas about our rights. Worse, they disregard the Ninth Amendment, which states that the rights listed in the Constitution are an enumeration of only some of our rights, and convey the notion that we have no other rights than those listed in the Constitution."

"Name one right and the movie that denies we have it, " Dave said.

"Well, we're back to property rights and the movie is Traffic. In that movie, Michael Douglas, playing the part of a judge, says from the bench that there is nothing in the Constitution granting property rights."

"Is there?" I asked.

"Do you think George Washington, John Adams, Thomas Jefferson, George Mason, James Madison, and other Founders didn't believe we had property rights? Violation of property rights by Parliament and the Crown were among the things that precipitated the Revolutionary War. Property rights are included in the Fourth Amendment and inferred by the Ninth Amendment."

"Then why do they—Congress, state legislatures, and the like—pass laws like that?" I asked.

"Do you think legislators whip out copies of the Constitution to see if the laws they're passing are in violation of it?

"Of course they don't," he said, answering his own question. "In fact, I'll bet 95 percent or more of them have no idea what's even in the Constitution, and most of those who do know realize that you don't.

"The only guy on Capitol Hill who's consistently constitutional is Ron Paul, the Republican congressman from the 14th District in Texas. All the rest have no compunction about violating the law of the land when it suits their purposes or when it serves their special interests."

"What if you take illegal or unconstitutional laws to court?" I asked.

"At the local and state level, the courts will enforce the local and state laws, even if they're at odds with the Constitution."

"Even though the Constitution is the law of the land," Dave said.

"That's right," Mac said.

"Why can't we just take that stuff to the Supreme Court," I countered.

"First of all, it typically takes years and even decades for things to reach the Supreme Court. Second, it takes money. Third, the court has to agree to take the case; if they don't, it doesn't get tried. Fourth, these guys are political appointees, some of whom have declared themselves as activist judges who will willingly reinterpret the Constitution in the government's favor and prospects of winning before them may not be good. Fifth, some don't even know what's in that document. Justice Scalia is on record as not knowing what the Ninth Amendment says and, when shown it, said it only pertains to the states.

"All of these things conspire to make bad laws—unconstitutional laws—linger."

"But isn't it the Supreme Court's job to interpret those according to our needs?" I asked.

"They've made it their job but, no, it's not their job. There's nothing in the Constitution that gives the Supreme Court the right to interpret your rights. The Supreme Court's power to do so came about when, in the case of Marbury vs. Madison, they ruled the Judiciary Act of 1789 unconstitutional and established the concept of judicial review. In other words, they ruled an act of Congress unconstitutional and it has traditionally been their power ever since.

"I'm not saying the Supreme Court hasn't done a good job—at times. But it's also done a lousy job at other times."

"You don't really trust them, either," I said.

"No."

"So, who's supposed to protect us then?" I asked.

"You are!" he said so fast I had barely finished my question when he had finished his answer. "We, the American public, are responsible for knowing what our rights are and protecting them."

"That's the answer to the question I was going to ask," Dave said.

"What question?" I asked.

"What's the solution?" he said. "And the solution is," he continued, answering his own question, "that there isn't a solution unless a significant number of Americans begin realizing what's in the Constitution and doing something about it."

"That's right," Mac said. "We should be guarding our rights at the polls. Inform yourself as to what's in the Constitution—your Constitution—find out how your elected officials and the people they appoint act, and vote them out when they act unconstitutionally.

"If you write to your congressmen or the editors of your newspapers or magazine, you should be pointing out what parts of the Constitution are being violated. It's important that they realize you know.

"It won't even take a majority to change things. If 10 percent of the American public knew when the Constitution was being flouted, and we expressed our disapproval, including at the ballot box, it would be a chorus of voices impossible to ignore. Entire elections are often decided on shifts of even less than 10 percent.

"But the problem is, I would guess that it's less than one percent of the electorate that acts this way, and that's why we have the world we do."

Dave interjected, "My guess is that it's woefully less than one percent."

"And it won't get better unless 'We the People' do something about it," Mac said.

"But it's a legal document," I protested. "Shouldn't it be left to lawyers to decide?"

"It was written for us. The Founders weren't just a bunch of lawyers, they were also doctors, farmers, merchants, and more. They wrote the document in a language anyone with a half-decent education can and should understand."

"What if voting, letter writing, and the rest doesn't work?" I asked.

"Then let's change the Constitution. Our rights can't just be pretty decorations on a piece of paper that we ignore or, even worse, are not allowed to exercise because of the opinions of a special interest group, a politician, or a bureaucrat. Let there be an amendment or amendments presented to the states and to the people saying we have agreed that, unless we get permission, that we're not allowed to have weapons, free speech, that we don't have the right to face our accusers in a court of law—with legal counsel—in a trial before a jury or our peers, that police are allowed to make random searches or to eavesdrop on phone calls without warrants."

"Something like that would never fly." I said.

"Of course it wouldn't," Mac said. "And why? Because the people will finally start reading the Constitution and the Bill of Rights and see for the first time in their adult lives what they really have, have failed to exercise, and how we've been losing it. And, hopefully, they'd wake up."

"You'd have to hope so," Dave said.

"Our rights are being taken away right in plain sight," Mac said. "There's no trickery going on, it's not being done in closed rooms, and it's not being done by people we don't know. It's there for all to see. The problem is us. We're not paying enough attention so we can know what we're losing and, worse yet, apparently we don't care.

"Let me ask you guys something," he said: "What's the difference between losing our rights to our own politicians and losing them to a foreign invader?"

"For our politicians, we roll over," Dave replied. "If a foreign invader tried to take them, we'd fight back," and he added, "and that makes our politicians—and our mass media, for not reporting on them—all the more dangerous."

"Exactly," Mac said with just a hint of exasperation I'd rarely ever heard in his voice.

"So much for troops dying to protect them."

We were quiet for a moment and Dave said to me, "I'll buy if you fly."

"More of the $5.13-a-bottle stuff?" I asked.

"Of course."

"Let me go with you," Mac said. "We'll take my car. I like this town."

And, with that, we left.

Read More by John Silveira Read More Opinion / Commentary
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