The anniversary of The Bill of Rights
Our second great national holiday
December 15, 2002
Why is the government so resistant to a formal celebration of our founding freedoms?
Americans make a big hubbub over the Fourth of July.
True, the victory of 1781 was an amazing triumph, and the vision of those gathered in Philadelphia five years before — that men may rightfully form or disband governments at will, for the higher purpose of protecting our God-given individual rights — is still worth celebrating.
But that confederation of free men ended on June 21, 1788, when New Hampshire became the ninth state to ratify the new U.S. Constitution, making it the law of the land. At that point, the organization of free peoples created by the Declaration of Independence — the one we still celebrate each July — passed away.
Our government school teachers tell us this was necessary because the Articles of Confederation “weren’t working out.” But they are woefully light on specifics. Push them, and most will mutter uncertainly some trivia about seaboard states charging tariffs on goods transshipped to landlocked states. Point out that the first landlocked states — Vermont and Kentucky — weren’t admitted until 1791 and 1792, and they will usually fall into a puzzled, grumbling silence.
Anyway, there it is: The people fell for the siren song of “federalism,” accepting solemn promises that the powers of the new central government would be sharply limited to those expressly spelled out — funding a Navy, granting patents and copyrights, coining metal money. Not much more.
Fast forward 210 years. As a recipe for limited government, this Constitution now matches the creature it’s supposed to describe about as well as a Chihuahua’s carry-on “Pet Kennel” would fit a loping Irish wolfhound.
The prima facie proof of this failure now stares at us from every acre of the former marshland north of the Potomac, a granite necropolis and memorial park to our deceased freedoms at least a hundred times larger in manpower and frenzied ambition to control our lives than Mr. Jefferson could ever have imagined (though one suspects Mr. Hamilton would have smiled).
In the face of this unchained monster, our thin remaining hope against outright tyranny lies in the fact that Rhode Island and North Carolina (bless them) outright refused to ratify that Constitution until a Bill of Rights was added — while Massachusetts, Maryland, South Carolina, New Hampshire, Virginia and New York all ratified only on the condition that some such set of amendments be quickly appended, as was solemnly promised.
And so, on the day we should probably celebrate as our second great national holiday, Dec. 15, 1791, Virginia became the 11th state to ratify the first 10 proposed amendments — Mr. Madison’s “Bill of Rights” — though a better name might be the “Bill of Prohibitions” on government conduct.
Today, as usual, that anniversary will pass with the kind of afterthought mention on the daily news and propaganda broadcasts usually reserved for, “On this day 70 years ago, Commander Perry reached the North Pole.” Two days later, about as much attention will be paid to the 224th anniversary of the great event of Dec. 17, 1773. “The most magnificent movement of all. There is a dignity, a majesty, a sublimity in this last effort of the patriots that I greatly admire,” said future president John Adams of the tax-resisting militiamen who that day dumped 342 chests of tea into Boston harbor.
To their credit, Aaron Zelman and J.E. Simkin of the little Milwaukee-based Jews for the Preservation of Firearms Ownership battled for months, back in 1999, to get city councils around the country to adopt proclamations honoring Dec. 15 as Bill of Rights Day — succeeding with a small, proud band including Randolph County, N.C.; Cobb County, Ga.; the city of Asheboro; the town of Rainier, Wash.; and spunky little Valley City, N.D.
JPFO has also now brought out the latest in its line of “Gran’pa Jack” comic books, “It’s Common Sense to Use Our Bill of Rights … Or Lose Them!” suitable to explain the Bill of Rights to any kid, aged 6 to 60 … of which more later.
But against Mr. Zelman’s admirable efforts, the question remains: Why do the folks now in charge of our national offices — including the government schools — so pass over and ignore the historic ratification of those 462 little words which have made us for two centuries the envy of men and women seeking freedom the world around — this Bill of Rights?
Because they fear folks might actually read them?
They’re in plain English, you know. It was never intended we should need an attorney to tell us what they mean — let alone that we should tolerate courts telling us they don’t mean what we can plainly read there for ourselves.
It couldn’t be because they’re afraid we’d actually go read the First Amendment, could it, which begins, “Congress shall make no law respecting an establishment of religion …”?
What does it mean for a government to “establish” a religion? Why, clearly, to establish one religion as that enforced by the government, against all others … like the Church of England.
Let us suppose, for instance, that an extremist cult were to arise, which holds it is a mortal sin to plow under any weed, or to destroy any bug or small verminous rodent which we may find on our own property, providing the priests of this extremist cult should decide (based on divine revelation) to list that weed or bug in their own scriptures as “threatened” or “endangered.”
That would be no problem, so long as the priests of this weird sect had no legal authority to do anything but preach against us from their own, private pulpits.
But let us now suppose the government were to erect a headquarters for this sect in Washington at taxpayer expense, and issue them guns and badges, empowering them to enter onto our private property, arresting and jailing us and seizing our land and homes — or simply prohibiting us from making otherwise legal, profitable use of our own property, such as building vacation homes — if they should find us killing our own weeds and bugs, to which no one else can demonstrate any legal title?
That would be “an establishment of religion,” wouldn’t it, and thus banned under the First Amendment? Why, such extralegal usurpations might even tempt government agents to eventually storm, burn and massacre harmless citizens in their own churches of a Sunday afternoon, for practicing some religion not approved by Washington, mightn’t it? Thank goodness we have a First Amendment to prevent that kind of thing.
So that couldn’t be the one they don’t want us to read.
It couldn’t be because they’re afraid we’d actually go read the Second Amendment, could it? The one that says, “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”?
What’s that word “free” doing in there?
Mr. Madison knew full well that no citizen-militia was necessary to protect the security of the kingdoms of France or Russia. Mercenary, professional, standing armies did just fine to protect their borders — at the price of their own disarmed populaces being subject to tyranny under the same muskets.
Only a “free” country requires that the bulk of the potential armed forces consist of free, private citizens better armed than the men commanded by the central government, just as the unofficial “Fairfax County Militia” of Mr. Washington and Mr. Mason had been better armed than the special militia or “National Guard” available to obey the orders of the crown’s “governor of Virginia” in 1776 … else the Revolution still fresh in Mr. Madison’s mind could never even have been launched, let alone won.
What the Second Amendment clearly means is that — as a guarantee against the threat of internal government tyranny — any law-abiding American adult not obviously insane or profoundly retarded has a right to own and carry with him a belt-fed .30-caliber Browning machine gun or a shoulder-launched heat-seeking missile. (You’re not going to argue we could stand up to the FBI, the ATF or the 101st Airborne with a Ruger 10-22 and a few old muzzle-loaders, I hope?)
For when the Second Amendment says that right shall not be “infringed,” I would submit that means neither the weapon, nor its ammunition, nor the buying or transport of either, may be taxed, regulated or subjected to any “permitting” process. The government can’t even require that the store clerk who sells me my machine gun “check my ID,” or write down my name.
No; that’s all clear enough. So the Second Amendment can’t be the one they don’t want us to read.
Could it be they’re afraid we might read the Sixth Amendment, which begins, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”
The high court, of course, now holds this doesn’t mean what it appears to mean to us non-lawyers, at all. Rather than see the courts grow too crowded, her eminence Sandra Day O’Connor now informs us no trial is required if the state agrees to jail us for fewer than 180 days … or even for fewer than 180 days on each charge.
And by the way, what’s that word “impartial” doing in there?
The British common-law jury system with which the Founders were familiar made no provision for the judge to ask potential jurors in advance whether they favored the enforcement of the law in question … which is why the misguided government could never get any convictions in the North in the 1850s on charges of violating the hated Fugitive Slave Act, any more than a government saddled with the same jury system could convict William Penn in London, some years before, on charges of preaching a Quaker sermon.
Importantly, it is only the defendant who is guaranteed an impartial jury — we find here no guarantee that “the state shall enjoy … “
When the judge asks the jury pool whether anyone would have a problem sending someone to jail for smoking pot, or for owning an ancient collectable World War I machine gun without having previously submitted his fingerprints to the ATF, or for declining to pay a federal income tax on wages — and when that judge promptly sends home anyone who raises his or her hand — he is not empaneling an “impartial” jury; he is pre-screening a jury guaranteed to be predisposed to the government’s case. He is violating the Sixth Amendment.
The original term for a jury trial was a trial “en pays,” or “on the country.” The jury is supposed to represent a cross-section of our fellow citizens. Unless a law has broad public support — 94.5 percent, actually — the chances are that a randomly-selected group of 12 citizens will include one member who finds the law a hateful abomination, and who will refuse to convict. Hung jury: Defendant walks.
That is the meaning, and the intent, of the Sixth Amendment prohibition on government taking away our life, liberty or property without “a speedy trial … by an impartial jury.”
Do you suppose that’s the one they don’t want us to read?
And what about the 10th Amendment, which specifies, “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 means 90 percent of the laws, agencies, orders and regulators now pouring forth from Washington like a torrent from a broken dam are null and void — deformed, fatherless creatures, apt to melt away like Goblins if ever tested in the harsh daylight of the Bill of Rights.
A few fans of totalitarianism, having been coached by the slyest of lawyers and union schoolmarms, will point out that the preamble to the Constitution advises us the purpose of the document is to “promote the general welfare,” whereupon they will contend this plainly means the Congress is allowed to enact any law and do anything which a temporary majority of the two houses shall determine tends to “promote the general welfare.”
But if that were the case, surely the whole document need take up only 28 words: “The Congress may enact any law which the majority of both houses shall determine to their own satisfaction tends to ‘promote the general welfare’; have a nice day.”
What’s all the rest of this plodding exposition of limited powers doing in here?
Anyway, the best and most authoritative answer to this sneering, cynical justification for unlimited, Bonapartist tyranny was provided in the final year of his life by no less a figure than Thomas Jefferson, in the “Declaration and Protest of Virginia,” 1825.
“We … disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think or pretend would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare by the various acts of power therein specified and delegated to them, and by no others.”
Jefferson, for heaven’s sake. This is not merely some commentator on what the founding fathers may have meant. This is a virtual deathbed declaration of The Founding Father!
Ah, so many restrictions on government power, in this modest little Bill of Rights. So concise and clearly written. How strange, that all of them would now turn out to be moot, or out-of-date, or of no practical bearing, or not to mean what they would appear to mean to a mere layman, who foolishly assumes they were written in plain English which we should all be able to understand without an advanced degree in Canonical Sophistry.
Go buy a copy of the Declaration of Independence and the Bill of Rights and read them to a child.
It’s our next-to-last best hope.
Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal.