You can count on the Bill of Rights. Except when you can’t.

Photo: David Jones via Flickr

The Bill of Rights — the first and most important ten amendments to the U.S. Constitution — spell out our sacred and irrefutable rights in America: free speech, the right to bear arms, and so on. In the vast and powerful imagination of Americans, these rights are inviolable. In reality, every one of them is hemmed in, regulated, squashed, and hedged. That includes the Second Amendment. This is your Constitution. You ought to know what’s in it and what it means in practice now in America, not in fantasyland.

The First Amendment protects free speech, with lots of exceptions

According to the First Amendment, “Congress shall make no law respecting an establishment of religion . . . or abridging the freedom of speech, or of the press.”

So say anything you want. Unless you are inciting people to riot, libeling someone, spreading child pornography, or plagiarizing. There are laws against those.

Regarding the “establishment of religion,” for various periods for time, stores in Massachusetts and Texas couldn’t sell liquor on Sunday mornings. Why Sundays? Because some religions hold their services then and it’s the sabbath for Christians. If you’re Jewish, Muslim, or atheist, these laws violate your First Amendment rights.

The Fourth Amendment protects you from unreasonable searches, but not always

The Fourth Amendment states “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 . . .” Despite the passive voice, this tells you that the police can’t just search your house or car any time they want.

Except that they can rush into your house if they perceive an emergency or there’s something illegal in plain view.

They can search you or your car incident to a lawful arrest.

They can use anything they find in a search, even an illegal search, in grand jury testimony.

And apparently, they can monitor everyone’s phone connections and emails in case some of us are terrorists.

The Fifth Amendment guarantees you a fair trial, so long as you’re not a terrorist

The Fifth Amendment guarantees you rights including:

  • A trail requires an indictment by a grand jury.
  • You can’t be tried twice for the same crime (double jeopardy)
  • You can’t be forced to testify against yourself (“taking the Fifth”)
  • They can’t take your property for public use without compensation.

Of course, we’re trying terrorists now in military tribunals. We’re trying people for the same crime in state, federal, and civil lawsuits (ask O.J. Simpson). And states are taking people’s private land and then using it for non-public projects like stadiums.

The Sixth Amendment protects you against hearsay, usually

According to the 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.” And the accused is allowed to be “confronted with the witnesses against him” — that’s why hearsay, or second-hand testimony (“I heard her say that he did it”) isn’t admissible.

Of course, the 45 remaining “detainees” held in Guantanamo Bay for over a decade are a long way from a speedy trial.

And if somebody accuses you in an “ongoing emergency” or as they’re dying, that hearsay is admissible and you never get the chance to confront them.

The Seventh Amendment guarantees you a jury trial, so long as your case isn’t too complex

The Seventh Amendment states “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ” Again with the passive.

But in complex cases like patent disputes, sometimes the case is too complicated for a jury, so we just ditch that amendment and have a judge decide. And if you’ve ever signed an agreement with an arbitration clause — which includes an increasing proportion of consumer contracts these days — you won’t get a judge or jury. You’ll have to settle for an arbitrator.

The Eight Amendment protects you from cruel and unusual punishment, unless you’re a really bad hombre

According to the passively written Eight Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Apparently that doesn’t apply in SuperMax prisons, where prisoners like Oklahoma City bomber Timothy McVeigh spend 23 hours per day in solitary confinement. It’s difficult to estimate the total number of people in America in solitary confinement, but 80,000 is a good guess. Depriving people of all human contact is cruel, unusual, and common.

The Ninth Amendment is a joke

Did you ever read it? Here’s what it says:

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

What rights does this protect?

Does it protect my right to take heroin? To drive on the White House lawn? To smoke on an airplane?

Obviously, the government has an interest in preventing all sorts of behaviors. So it disparages and denies my rights all the time.

In case you are wondering, the Supreme Court protected the previously unspecified rights to get an abortion or get married to someone regardless of gender under the Fourteenth Amendment, not this one.

The Tenth Amendment is full of holes, too.

It reads:

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.

So states have the power to regulate marriage, car registration, and health care. Except that the federal government decided that they can’t prohibit same-sex marriage, that cars seat belts and air bags, and that we all need to have access to health care.

What about the Second Amendment?

You’ll notice I left out two amendments: the Third and the Second.

The Third Amendment is about quartering troops in time of war. It’s never been the subject of a Supreme Court decision. Unless somebody invades America, it’s not likely to come into play.

The Second Amendment, of course, is the controversial and queerly written right to bear arms:

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.

There is no constitutional or historical argument that maintains this is an inviolable right to own any weapon you want, any more than the First Amendment protects your right to libel somebody or the Fifth protects you from civil suits.

Even putting aside the ambiguous initial phrase about the Militia, the federal government clearly has a right to insist on gun registration, prevent you from owning a bazooka, outlaw fully automatic weapons, or restrict the size of the ammunition magazine in your gun.

Whether these regulations are wise or even possible is a good question. I’d like to see some clarity and science applied to that question; I’d also like to see the CDC research guns, which is currently prohibited.

But spare me the Second Amendment purism. Every other Amendment in the Bill of Rights has exceptions, regulations, and caveats. The Second is subject to the same limitations in the name of public safety.

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  1. Via New York Times: “I think it’s premature to be discussing a legislative solution,” McConnell told journalists. Premature for Sandy Hook? Orlando? Premature for the 59 dead and the not yet dead from the next massacre?

  2. There are hundreds, perhaps thousands, of excellent law review articles on the Second Amendment. Precisely because these articles are thorough and detailed, they do not lend themselves to one- or two-sentence summations. But the analyses are there. Congress does not need more analysis. It needs the WILL and backbone of members to stand up to the NRA.

  3. “If that psychopath had driven a truck into that crowd and killed 50 people, would we be talking about truck control? “

    We wouldn’t have to. Trucks are already registered by the State. You need to buy insurance in case you cause injury with your truck. You have to get a license (with restrictions, if you have a disability). To get a license, you have to pass a two part test to make sure you understand the law and are physically able to drive the truck. You have to retake the tests every few years to prove you can still operate the truck. The State takes your license away if you’re caught putting people in danger multiple times with your truck. The State also taxes trucks to pay for the roads and services required to maintain a safe operating environment. Finally, trucks aren’t specifically designed to kill people. In fact, technology has made them safer than ever.

    So, yes, I think we should talk about regulating guns like we regulate trucks.