How Many Constitutional Freedoms Have We Lost?

This post explains the liberties guaranteed in the Bill of Rights – the first 10 amendments to the United States Constitution – and provides a scorecard on the extent of the loss of each right.

First Amendment

The 1st Amendment protects speech, religion, assembly and the press:

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.

The Supreme Court has also interpreted the First Amendment as protecting freedom of association.

However, the government is arresting those speaking out … and violently crushing peaceful assemblies which attempt to petition the government for redress.

A federal judge found that the law allowing indefinite detention of Americans without due process has a “chilling effect” on free speech. And see this and this.

There are also enacted laws allowing the secret service to arrest anyone protesting near the president or other designated folks (that might explain incidents like this).

Mass spying by the NSA violates our freedom of association.

The threat of being labeled a terrorist for exercising our First Amendment rights certainly violates the First Amendment. The government is using laws to crush dissent, and it’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.  (And the U.S. is doing the same things that tyrannical governments have done for 5,000 years to crush dissent.)

For example, the following actions may get an American citizen living on U.S. soil labeled as a “suspected terrorist” today:

  • Taking any steps to protect your privacy (and see this)
  • Being a hippy
  • Complaining about the taste of your tap water
  • Being young (if you live near a battle zone, you are fair game; and see this)
  • Acting like a kid
  • Using social media
  • Reporting or doing journalism (and here and here)
  • Having “strange odors” or “bright colored stains on clothes” (what if you eat mustard or ketchup?)
  • Speaking out against government policies
  • Protesting anything (such as participating in the “Occupy” or “Tea Party” movements).  For example, Department of Defense training manuals classify all protest as “low-level terrorism”. And see this, this, this and this
  • Questioning war (even though war reduces our national security; and see this)
  • Criticizing the government’s targeting of innocent civilians with drones (although killing innocent civilians with drones is one of the main things which increases terrorism. And see this)
  • Asking questions about pollution (even at a public Congressional hearing?)
  • Paying cash at an Internet cafe
  • Asking questions about Wall Street shenanigans
  • Holding gold
  • Creating alternative currencies
  • Stocking up on more than 7 days of food (even though all Mormons are taught to stockpile food, and most Hawaiians store up on extra food)
  • Having bumper stickers saying things like “Know Your Rights Or Lose Them”
  • Investigating factory farming
  • Infringing a copyright
  • Taking pictures or videos
  • Talking to police officers
  • Wearing a hoodie
  • Driving a van
  • Writing on a piece of paper
  • (Not having a Facebook account may soon be added)

And holding the following beliefs may also be considered grounds for suspected terrorism:

  • Being frustrated with “mainstream ideologies”
  • Being a libertarian
  • Liking the Founding Fathers
  • Being a Christian
  • Being anti-tax, anti-regulation or for the gold standard
  • Being “reverent of individual liberty”
  • Being “anti-nuclear”
  • “Believe in conspiracy theories”
  • “A belief that one’s personal and/or national “way of life” is under attack”
  • “Impose strict religious tenets or laws on society (fundamentalists)”
  • “Insert religion into the political sphere”
  • “Those who seek to politicize religion”
  • “Supported political movements for autonomy”
  • Being “anti-abortion”
  • Being “anti-Catholic”
  • Being “anti-global”
  • “Suspicious of centralized federal authority”
  • “Fiercely nationalistic (as opposed to universal and international in orientation)”
  • “A belief in the need to be prepared for an attack either by participating in … survivalism”
  • Opposing genetically engineered food
  • Opposing surveillance

And see this. (Of course, Muslims are more or less subject to a separate system of justice in America.)

And 1st Amendment rights are especially chilled when power has become so concentrated that the same agency which spies on all Americans also decides who should be assassinated.

Second Amendment

The 2nd Amendment states:

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.

Gun control and gun rights advocates obviously have very different views about whether guns are a force for violence or for good.

But even a top liberal Constitutional law expert reluctantly admits that the right to own a gun is as important a Constitutional right as freedom of speech or religion:

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda.

***

It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “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.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

***

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

The gun control debate – including which weapons and magazines are banned – is still in flux …

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