On the meaning of the 1st amendment
by
Matt Giwer
To digress upon lexical analysis and the absurdity of
avoiding plain meaning by reading a desired meaning rather than a
plain meaning.
1st Amendment
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.
Clearly we have only a prohibition against congress making a
law abridging free speech or the press, the states having
retained the right to so (or the right to establish a state
religion within a state for that matter.)
We also note that "the right of the people" comes
specifically and separately in the last clause only. Thus the
federal government would appear to have the power to limit speech
or press to individuals else it would have to be held that only
existing organization can assemble and petition. More
interestingly in the prior clauses OR is used while in the last
we have AND. Thus this only applies to people who assemble for
the express purpose of petition.
It is clear that only an existing group of people have the
right to practice a pre-existing religion. This is supported by
the use of "an establishment" rather "the establishment" of
religion. "An establishment" refers to an existing religion
which was, by term of art of the time, an existing religion.
Congress can certainly prohibit the introduction of any new
religion or organizational bifurcation of an existing
establishment. Of course is the intention had been meant to
apply to new religions the alternate form "the establishment"
could easily have been used. And of course the individual states
would still have the power to do anything they wished.
Of course we know from the time that speech and press
referred to political speech and press and Supreme Court
decisions up until early in this century upheld the original
intent to be that, holding that a mayor could control what was
said and read in his town as much as a man could in his own home.
There is much more than can be done with these few words but
this method ignores the effects and consequences of such an
interpretation and also the spirit and reason of the law. Were
we to make much of the separation of "the right of the people"
and the difference use of and & or, an & the we can distort the
intention into unintended effects and consequences.
With religion as an example, it was not a celebration of
religious liberty, rather it was the only form of truce that
could be hoped to keep the peace between religions. Thus to
outlaw new religions or to regulate existing ones would lead to
the same religious discord that it was intended to avoid. Thus
we are lead to a general prohibition, a hand's off view of
government towards religion.
We do the same with speech and the press in extending it to
art for to deny art can be political is to deny the travels of
Gulliver. And therefore we accept the negative consequences of
imposing limitations upon art.
It is the same with assembly and petition that despite the
words we people assemblying to organize and a petitioner as a
single person else we prevent the new and deny a single person
can have a grievance. The committee of one is accepted so to
speak.
And in these the spirit and intent of these provisions was
clearly to prevent the government from interacting with the
people in such a manner that the people would object as the
result would be another revolution with causes much like the
recent one.
Which of course leads us to the 2nd Amendment. One can deal
with the words back and forth forever, debate means of
interpretation while not dealing with the effects and
consequences or with the spirit and reason of it.
It is clearly not the intention of this amendment to make it
absolute to everyone, period, any more than it is intended that
the provisions of the murder statutes apply to abortion
regardless of quibblings over the meaning of person. Clearly
people commit offenses that lose them many rights both human and
civil as a result of due process and as such convicted felons,
the insane, and the immature (minimum age laws) as applies to
voting and the like.
Clearly the consequences of restricting guns or certain guns
to everyone is to limit the freedom of many for the
transgressions of a few in light of the obvious, that the few
will not be harmed at all. That is certainly not the intention
of an amendment to limit guns only to those who are members of a
state or federal controlled militia.
As with the right to assemble to organize being permitted
certainly it is equally obvious that only armed individuals can
assemble to organize a militia. (A militia is distinct from an
army in that a militia provides its own weapons while and army is
provided weapons by the organizing agent that is not necessarily
the government.)
To hold that guns can be restricted based upon technology
would not be in the spirit of the acceptance of art as speech or
television as the press. That would certainly not be an intended
consequence of the law.
To hold that people can not have guns or type of guns equal
to those in the anathema standing army holds that intention was
to make rebellion against federal tyranny impossible except
through the medium of the states, even though the state powers
are not the subject of the same constitution.
To deal only with the meanings and words of the time of a
law excludes complimentary basis' for interpretation that lead to
a fuller and more correct meaning. To hold that what was
considered a right and protection in the 2nd for over a century
can on one hand be limited while a similarly indefensibly worded
1st (using only the strict reading of the words) can be expanded
after a similar period of time is to treat the amendments
differently.