Our Bill of Rights
by
Matt Giwer (c) 1995 <5/28>

      For some decades now there has been a public assumption that if the country were to repeal the 2nd amendment, the Right to Keep and Bear Arms, that people could be prohibited from owning guns. This is symptomatic of a fundamental misunderstanding of the concept of government upon which the United States was created. Most simply stated this is not more reasonable than the idea of repealing the 1st amendment would permit the government to force people to believe in a particular religion.
      This government was founded on the specific statement that "governments are instituted among men, deriving their powers from the consent of the governed." To that end the United States and the state constitutions created governments with specific powers. From the specific naming of those powers it is implicit that only those powers were given to the government.
      For example, there are many home-owners' associations and buying within such a community binds one to the decisions of the association. To understand what that will mean to us as new homeowners we read the charter and see what it can and can not do. If it says it can determine the colors of paint that can be used then it has that power. If there is no mention of the type of pet we can have then it has no power over pets.
      That appears quite clear. Let us go back a bit over 200 years and remember there was a faction that was against the adoption of a Bill of Rights. They had the very simple argument that if the power was not specific in the constitution then the government had no such power. That was the substance of their argument, that it was unnecessary.
      They looked at the Constitution as a home owners' association contract, if it is not written it does not exist. In that regard, as the US Constitution did not delegate the power to determine religion it did not have it. As it did not have the power to control speech, it did not have it. As it did not have the power to regulate gun ownership, it did not have it. It seemed perfectly clear to them.
      The other side argued, with excellent foresight, that despite the specifically delegated and limited powers to the government, that even this government would follow the natural tendency of governments to accrue power. Those powers would be accrued by taking the powers from the states and the people that were not delegated to it. Thus the instituted specific prohibitions that are in the Bill of Rights.
      Thus the used terms such as "Congress shall make no law," "shall not be infringed," "the right of the people," "no person shall be," and various other negatives regarding the powers of the US government. The conflict between the people who hold with the original intention, that the US government has only the powers delegated, and those who hold the US Constitution is a framework within which the government must find a way to act as any other government is based upon this point. When specific prohibitions were made, those who held for the "government as usual" interpretation, took the "they can not be absolute" approach.
      It is clear that if the people who wrote the US Constitution had wanted a "government as usual" in a new framework, voting rather than nobility, they would have clearly said so. They did not. Even the side that wanted to prohibitory guarantees would not have included the 9th and 10th amendments which are almost paranoid in light of the original intention of delegating only specific powers and none other.
      Rather the founders held as a working principle that people has the rights to speak their minds, to believe as they wished, to effect defense, to be judged by people in their circumstance rather than by an elite, to be held innocent until found guilty, not to be held accountable for the crimes of others and a host of other matters. Whether these are true or not. Whether or not anyone believes them they are a presumptive fact of our form of government.
      Should anything come to change these presumptions, there is the amendment process. If there is reason to hold, as there is, that a person does not have the right to judgement by their equals, then the amendment process is available to change the presumptions of the constitution. If the world of arms has changed so greatly that people no longer have the right to them, that is the right to effective self defense, then the amendment process is there.
      But, as this country started upon the assumption of pre-existing rights the only thing the amendment process can do is take away the protection of those presumptive rights from the government. To take away the presumptive rights themselves, an entirely new government would need be instituted to replace this one.
      And that this the obstacle to the "loose interpretation" school of the Constitution. The presumption under which the government was created can not be negated by amendment regardless of the validity of the presumption. It is fashionable to be atheist these days but that does not negate the presumption of our government of being "endowed by their creator" which is implicit in the Bill of Rights if people should hold there is no god.
      The bottom line is that if anyone wishes to hold rights are not god given but rather are granted by the government then they must start a new government based upon that new assumption. The US government is not based upon the assumption that the government can grant rights. (I will note here that "civil rights" laws are a popular name. There are two classes of them, prohibitions against denial as authorized in the Constitution, and the granting of rights under law that are in addition to the Constitution. The federal government has no power to do the latter.)
      One can not institute a new government piecemeal by changing meanings and expect others to agree. There is no ethical force to such a position.
      And as always, when political compromise fails, there is revolution. Both sides will claim the right. Only victory will determine the right. And the rest will be history.