While the national corporate media has covered the outcome of this case, their analysis has been (and will be) long on the sensationalism of the arguments between these two sides, and very short on what the opinion actually says. For those who are interested in the actual language and analysis of the Heller decision, as well as some educated guesses as to the likely directions this decision will take us in the future, this analysis will deal with the issues of importance that stand out to both practicing criminal defense attorney and political science professor.

The most important things about Heller, other than the mere fact that it squarely addresses the Second Amendment, are that it is far more comprehensive than the national media are explaining. This is no mere overturning of the District of Columbia's pervasive gun ban, it absolutely establishes that the Second Amendment does indeed protect an individuals right to own and use firearms, as separate and distinct from any government controlled military organization. Justice Scalia, writing for the 5-4 majority, carefully analyzes each and every word of the Amendment, and does so from both a linguistic, legal, and historical perspective. He defines "arms", "bear", "people", "right", "keep", "militia", "state", and fully deconstructs how they are put together. There is nothing left to define here, no words about which the meaning can be speculated, and no syntax structure left to be manipulated. Short of outright overturn of the decision (which every Supreme Court abhors to do), the individual nature of this right is now set in stone. Further, Justice Scalia (rightly) heaps scorn on some of the more obtuse and insultingly disingenuous arguments that have been made to eviscerate the meaning of the Second Amendment over the last few decades. We begin our examination of Heller with its disposal of those "chestnuts".

For at least a couple of decades, we've been forced to endure the catchphrase that the Second Amendment only would allow private ownership of muskets and muzzleloaders, since that was what the founders were calling firearms. This was what would be called a "compromise position" uttered by the self congratulatory, semi-educated, through a haze of clove cigarette smoke. Justice Scalia harshly brought them to reality with the following:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 19th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima faciae, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

The second venerable "chestnut" that has long been a lamppost for gun opponents to slouch against during any debate, has been to claim that the Second Amendment is only a "collective" right, indicating that it has to do with "militia service" or some existent group organized by the government, such as police forces, National Guard Units, or the proverbial "posse". While Justice Scalia spends considerable time on the exploration of the "militia" idea, before disposing of the gun opponents agenda for that phrase, he deals a swift death blow to the idea that the Second Amendment is some kind of "collective" right. He notes that the Second Amendment specifically says the "right of the people", and goes on to add that;

The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and Seizure Clause. The Ninth Amendment uses very similar terminology.[direct quote removed] All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.

In footnote here he says that Justice Stevens contention that the right is conditioned on membership in a militia, and is "primarily collective in nature", Justice Scalia calls "deadwrong", citing McDonald v. Smith, 472 U.S. 479(1985) which defined the historical origins of another individual right set forth in the Bill of Rights. Writing for the majority Justice Scalia notes that, "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right." In fact, he says, "We start therefore with the presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The opinion spends much of its length dealing with just how, precisely; the "militia" concept is entwined with the right to bear arms. In short, he says that the Second Amendment is divided into two distinct parts. The part that talks about "militia" is what he calls a "prefatory clause", a phrase used only to clarify or justify the important part of the statement, the "operative clause". The operative clause here is, "the right of the people to keep and bear arms shall not be infringed".

He clearly states that the operative clause is based on the long standing conflicts in England, where the government sought to disarm groups that opposed it, to better establish tyranny, and is the codification of a pre-existing right. Hence, the word "infringed", making it clear that the people already have a right to keep and bear arms. Had the amendment been designed to give a heretofore unknown right to the people, it would have read something like, "…does hereby grant to the people a right to keep and bear arms". (The founders were followers of the philosophy of the 18th century liberals philosophers, like John Locke, and believed that humans had inalienable rights, not that humans were only to be "given" rights by a sovereign.)

He says that the prefatory clause does not serve as a limit on the operative clause, and that "…operative provisions should be given effect as operative provisions, and prologues as prologues….[if]the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous [that] would cause the prologue to be used to produce ambiguity rather than resolve it."

He notes that the Constitution itself empowers congress to make a Navy and to raise Armies, but that the militias are something different. He argues that the plain language and history indicate the militias were pre-existing to the government, and were composed of all able bodied men, armed with their personal weapons. He conveys that there were many reasons the founders felt that a militia would be "necessary to the security of a free state", among them repelling invasion. Though he does not mention it specifically, it is worth noting that Admiral Yamamoto advised the Japanese military ruling council against a land invasion of California, primarily because the large number of armed citizens would make it an ungovernable quagmire. This shows that the founders belief that the security of the nation would be bolstered by having an armed populace was borne out, at least through the 20th century. Scalia also draws attention to the writings of Hamilton describing that a nation of armed, able bodied men, are better able to resist tyranny, and also spends some time discussing the history of the struggles between Catholics and Protestants for control of the monarchy, as the origins of this knowledge of armed resistance to tyranny. Thus he illuminates that the prefatory phrase about the militia is merely explanatory as to the operative phrase of just why it is so important that the "right of the people to keep and bear arms shall not be infringed".

The fundamental right established, the remaining three elements of this decision, upon which so many people waited so anxiously, were how the court was to deal with "crime", "regulation", and the types of "arms" protected.

Justice Scalia repeatedly referred to the right to use firearms to protect oneself in the home or on ones property. Over and over again, this entered into his analysis at all levels. This established two things never before addressed by the Court. First, that the 2nd Amendment is now related to an individual's right of self defense, not merely as a mechanism for defense of the nation against foreign aggression or domestic tyranny. Secondly it clearly establishes the right of a person to use a firearm in self defense. This second point, while it has escaped comment in the popular media, was hammered home, by repetition, throughout the opinion. By choosing this language, Judge Scalia laid a bulwark against any future efforts to undermine this right of self defense, such as is currently happening in England. There, many recent cases have found persons convicted for using deadly force to defend themselves from violent attack. It seems likely Judge Scalia took this opportunity to prevent such a perversion of justice from finding roots here in America. He goes so far as to call it the "core lawful purpose of self defense".

The court acknowledges the difficulties posed to communities by "handgun violence" but says that the Constitution leaves communities with a variety of tools for combating the problem, "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table". To wit, governments and communities can't absolutely prohibit handguns, "held and used for self defense in the home".

As to the right of the government(s) to regulate ownership of firearms, the court clearly states that some regulations are permissible.. The court notes that like most rights, this right is not unlimited. Just as there are permissible limits on the freedom of speech, and the freedom to practice ones religions, so too there are reasonable limits that can be placed on ones right to keep and bear armaments. Scalia and the court note that the longstanding prohibitions which prevent convicted felons, or the mentally ill from owning firearms is permissible, as are restrictions preventing the carrying of firearms into sensitive locations. Specifically named are schools, and government buildings. Likewise the opinion specifically permits laws which impose conditions and qualifications on the commercial sale of arms. Scalia says these are merely examples, and are not to be seen as the complete list, so we can presume that many more specific restrictions will not be undone by this opinion. It seems the BATF officers who conduct checks on gun stores and licensed dealers will not need to be updating their resume's, nor will the wand wielding inspectors at our courts, schools, and airports. However, the strong wording on the right to use a firearm to defend oneself in the home makes it likely any "school zone" bans which overlap anyone individuals private residence are likely defunct.

Lastly, the court did give some guidance in the area of the types of firearms protected by the 2nd Amendment, the area of great interest to both the enemies of gun ownership and firearms enthusiasts alike. Over the last couple of decades, this has been the central arena in the battle over guns in the US. Though this decision in no way creates a definitive list of what specific guns can be regulated or to degree, there is some pretty strong language limiting the governments reach in this regard.. On several occasion in the opinion, the court specifically upholds the ban on sawed off shotguns, as an example of the type of permissible regulation of weapons that are "unsafe" and not typical of the weapons used by the average soldier. The opinion cites the colonial regulations on the storage of gunpowder to minimize fire damage, and a singular colonial era regulation on keeping a loaded firearm for its danger to firefighters. This analysis would indicate that the government may prohibit ownership of particularly unusual or dangerous armaments. Do not expect regulations prohibiting flame throwers, rocket launchers, explosives or heavy weapons to be invalidated. However, this does not seem to extend to any weapons commonly used by the average soldier, or citizen. The popularity and utility of handguns, for use in personal self defense is given a great deal of discussion, and it seems that any "handgun" ban is going to be absolutely unconstitutional. Justice Scalia notes that many people prefer handguns for defense within the home because of their ease of handling in close quarters, and the fact that they free a second hand to do such necessary tasks as dialing the police, and though he doesn't mention it, hold a flashlight.

Of great interest in light of the recent battles fought over "assault style weapons", was a singular paragraph of great depth and analysis, that this author has yet to see addressed in the popular media. It is almost a summation of the entire analysis of the 2nd Amendment;

It may be objected that if weapons that are most useful in military service-M-16 rifles and the like- may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendments ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias of the 18th century, would require sophisticated arms that are highly unusual in society at large….But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

This seems to say that like the analysis of the right of speech to be extended to our fax machines and cell phones, the right to militarily useful weapons should be protected. Light machine guns, and squad automatic weapons are probably not protected and may be "infringed", but the average infantryman's rifle, "M-16 rifles and the like", appear to be protected specifically by the Second Amendment. At least, for as long as the Supreme Court stands as it does today.

That said, the opinion does expose some weaknesses in the protection if affords. The exceptions made for regulation and licensing of firearms would be deeply disturbing if adopted on a wider scale than by the small political areas that will now be losing their comprehensive bans. The weakness in the decision, specifically, is that there is great deference shown to "licensing", which is treated as an acceptable accommodation to the right, for the District of Columbia. If licensing is a permissible way to regulate handguns, then by analogy, it would be permissible for the Federal government to potentially require licensing of all firearms. To allow this to occur would build a fatal weakness into our basic freedom, since registration makes later confiscation, by tyrant or invader, not only possible but likely. Historical examples of registration based confiscation are common, and not limited to the activities of the Nazi's, both in Germany and immediately upon conquest of a neighboring state which "enjoyed" a gun registration scheme.

Also, there is the phraseology that places it within governmental power to regulate the commercial sale and interstate commercial transport of arms. This may be the single greatest threat to our continued enjoyment of the benefits of the Second Amendment. There have been and continue to be ongoing attempts to prohibit or limit the person to person sale of firearms, without involving a "licensed" intermediary. These efforts to "close the gun show loophole" are largely unopposed by the firearms manufacture and retail industries, because they see the used gun market as competition to their revenue flow. However, this simple custom in the law is the razor thin edge between our current system and de facto national registration. This is not merely speculation, for this author personally seen basic, simple, felony criminal cases in Arizona, which directly demonstrated the existence of national gun registration as early as the year 2003.

In the several months before these cases went to trial, the prosecution was able to send the serial number of a pistol to the BATF, who contacted a licensed gun dealer in an outlying city in Arizona. That dealer FAXed the firearm purchase form, which had been filled out nearly 10 years prior, at the purchase of the pistol by an individual now accused of the crime. During trial, the local deputy county prosecutor was able to produce a copy of the actual form filled out by the defendant, with his handwriting, and signature, from a lawful purchase nearly a decade old. Bear in mind, this was not a federal crime, or even a high profile crime (the accused had no criminal record, and there were no injuries). If a low level, local, prosecutor, chasing down a simple local crime, can easily acquire the purchase forms from a lawful firearms purchase, nearly a decade old, from merely a manufacturers serial number, how is that not a national registration scheme already in place? The only current limitation on this registration scheme is that if a "gun confiscator" came to the addresses on each of those forms, the persons named could now answer, "I sold it to some guy 5 years ago". If the Heller decision permits laws to be passed which require all purchases to be either from licensed dealers, or that the transaction be done through a licensed dealer, the we automatically have national gun registration. The first and most important step for confiscation by either invader or tyrant.

While Justice Scalia concludes the majority opinion by writing "it is not the role of this court to pronounce the Second Amendment extinct", it will unfortunately require ongoing activism and vigilance to make sure another government body does not make it moot.

By David Roth

David Roth is a Generation X, former political science professor, now practicing law in Phoenix.

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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The sad snake oil sold to the American people is that a lawsuit is the economic equivalent of winning the lottery. They are told, and believe, that for every wrong there is a remedy and that courts are simply tools for the enrichment of those who have suffered some disappointment. As a result, courts throughout the nation are clogged with anxious plaintiffs complaining of simple slights that should never have seen a courtroom. A recent case was filed in San Diego by an electrician who got into an argument with a co-worker and was dismissed with a common epithet comprised of two words, the second of which was "you." It seems the poor dear experienced extreme emotional distress from this egregious act and asked for court intervention to relieve his suffering.

Though the case was dismissed, it consumed court and attorney time and resources – and is symptomatic of the resort to courts for civil relief for the slightest of insults. It arises at least in part from our culture of victimhood and the plaintiff's bar's success at squeezing ridiculous results out of juries. It comes, too, from the Left's success in getting the American people to buy the idea that companies should pay when someone is annoyed, irrespective of whether or not the companies have done anything wrong. And so plaintiffs roll the dice and see if they can cash in, encouraged by mobs of plaintiff's lawyers by promises of undeserved riches.

At the same time, the revolution wrought by Supreme Court jurisprudence in the 1950s and '60s convinced the public that they, by gosh, have rights. The Court found in the penumbras of the Constitution newly minted rights and issued attenuated opinions enshrining protections never contemplated by the Founders. A nation that freely accepted the death penalty at its founding suddenly discovered that it might violate the prohibition against "cruel and unusual punishment." Put aside the fact that the Congress that passed the amendment making that prohibition existed at a time when the death penalty was in full and frequent use throughout the land; a fact that did not seem to trouble those who passed the prohibition and who saw no contradiction in the act.

Criminal defense lawyers pressed ever more creative Constitutional theories and suggested inventive new remedies for their violation. So it was that criminals were set free by courts on the flimsiest of grounds to further engage in their predatory acts. The unsurprising result was an explosion of crime in the late '60s and throughout the '70s, as those inclined to criminality concluded that they were unlikely to be caught, less likely to be convicted, and still less likely to be punished if they were.

This prompted in the advocates of expanded readings of Constitutional rights no word of protest from their lofty perches high above the mean streets the citizenry had to navigate. It was easy to self-righteously suggest that this was an appeal to the best in us when they paid no direct consequence for it. Those paying the highest price were, as usual, the poor and most vulnerable who suffered a virtual holocaust of crime because modern Constitutional theory encouraged increased criminality. That is the trouble with idealism unleavened by experience and common sense. It is easy for a judge to let an obvious criminal free when protected by bailiffs and metal detectors in the armed citadels we call "courthouses."

It was only when the public, genuinely outraged by the excesses of a criminal justice system warped by Leftist academic legal theories, rose up in protest and handed votes to every politician who suggested he would fight crime and bring the courts to heal. It is no accident that Republicans who, until the late '60s appeared to be a permanent minority, began their inexorable political assent. They were for the death penalty. They were for determinate sentences. They were for putting the bad guys behind bars and leaving them there. And they were rewarded with votes.

But the impetus to odd Constitutional theory goes on. Today, the Supreme Court will hear arguments in Boumediene v. Bush, a case bearing on the "rights" of Guantanamo detainees. It is the next in line of a series of cases pressed for the purpose of vindicating odd notions of rights during wartime and the success of which would result in the same geometrical increase in international crime that was the result of the proponents' efforts during the Warren Court era.

The effort is no less than the ambitious attempt to apply all of the attenuated Constitutional theories that resulted in our last major national crime wave to international terrorism. It is an effort to extend American rights to non-Americans committing their crimes far from America against Americans. And it is being sold with same self-regard and self-righteousness that was employed in the '60s: "We are better than that. We must live up to our ideal of equal justice under the law." Equal justice under the law applies to those in the United States and only to those in the United States or subject to its laws.

The immediate question before the Court is whether Congress can oust the courts of jurisdiction to hear habeas corpus petitions. That is hardly a question worth debating. The "checks and balances" Leftists tout in other contexts exist so that each branch can, one way or another, limit the power of the others. Congress has always had the power to oust the federal courts of jurisdiction over matters of controversy. Indeed, the federal courts below the Supreme Court are a matter of grace by Congress, not a mandate of the Constitution. Congress has the power to repeal the various judiciary acts that create them without running afoul of the Constitution, which does not require that they be established.

Although the immediate matter before the Court is the more esoteric one of jurisdiction and Congress's power to limit it, there is no question but that the greater issue is whether American rights extend to other than those in the United States, subject to its laws. It has never been the law of this nation that the rights protected under our Constitution extend to every human being in every place on the globe. Law is a function of the culture in which it takes root. The United States was founded largely by the children of the enlightenment whose lives were informed by the profoundly civilized philosophical project of individual liberty. As a cultural institution, it depends on the underlying assumption that those who inhabit the culture have similar, if not congruent, social values and have bought into the overarching cultural assumptions that give cohesion to their society. Without the embracement of basic cultural and ethical norms, cultural standards will not be achieved by citizens, and the assumptions that make up voluntary obedience to law will not exist.

The fundamental mistake made by those who argue for American rights for Guantanamo detainees is that American law is effective for governing people who share neither American values nor American cultural norms. Law is the governmental imposition of the basic rules of a society. It is about the enforcement of fundamental cultural norms on those who accept an overarching cultural standard. Our treatment of foreign terror suspects is not about our values, it is about theirs. Our values are intact, but our constitutionally protected liberties can extend only to those who accept the basic cultural values that make them work. Those who reject those values do not accept the duties that go with living in the society that embraces them and, without the acceptance of those duties, the protections that accompany them for those who do, give only advantage to those who have no call on that benefit.

It is odd that the very people who argue that President Bush is hopelessly naïve in thinking we can promote democracy in countries that have no historical understanding of it, are the very same people who think that the complicated mechanisms of American law should be set to the wholly unprecedented situation of an inchoate international terrorist effort. The fact is that planted democracy is much more likely to take root than the imposition of American standards of constitutional protection is to serve the very function of law: to protect the innocent.

Extending American due process rights, including habeas corpus, to foreign nationals in time of violent conflict, has not only never been done by any nation at any time, it will lead to nothing but chaos and confusion in our soldiers who will be expected to understand legal norms that most lawyers do not even comprehend. The battlefield is a bad place to test new jurisprudential ideas and it is destructive to the mission. It has been said that the Constitution is not a suicide pact and where you are fighting people who will not be bound by the cultural values that serve as the basis for law, extending the protections of that law is not only inappropriate, it is wrong-headed.

That is why the plaintiffs in Boumediene are wrong. The cases are legion in which court after court, including the United States Supreme Court, has concluded that American Constitutional rights are enjoyed by Americans and those who commit crimes in our country. That is the conclusion of Johnson v. Eisentrager, a 1950 United States Supreme Court case in which it was decided that German detainees at the end of World War II were not entitled to habeas corpus. In ruling, the Court observed that extending the right to habeas corpus to foreign nationals in foreign countries would "hamper the war effort and bring aid and comfort to the enemy." Just so.

We live in a dangerous time with dangerous and determined enemies not tethered to formal governments. As such, they are not entitled to the protection of the Geneva Conventions. We have extended to them far more rights than any nation ever has enemy combatants. They have contested hearings before military judges; the same types of tribunals our military men and women get when accused of crimes in uniform. They have a review right in a federal court. For those who say "we are better than that" as if, somehow, extending less than the full protection of the Constitution of the United States to those not entitled to any of its rights is less than we should do, we must ask: how many nations provide due process to their own citizens as great as those we do these detainees? Why should these detainees receive more rights than our own soldiers?

Who, among nations, is in a position to criticize our handling of these prisoners? What nation would extend the protections we do? Where, then, does anyone get the idea that we lose our respect among nations when we provide more rights to these detainees than any of them would? Any nation or national leader who suggests that we are betraying our ideals in this regard is simply playing for political advantage. And, any such leader should be challenged to meet even these standards in his own country.

In the end, our treatment of these detainees is more civilized than they have any right to expect and certainly more humane than they would receive at the hands of any other nation. I spoke with a nationally known liberal radio talk show host who vigorously disagreed with my position in this regard, accusing me of being inhumane. When I pointed out that if we want to keep terrorists from being released by federal courts to terrorize again, the only alternative would be for soldiers to kill rather than capture them; he said that that would be more acceptable. So much for liberal compassion.

The original article can be found at http://www.familysecuritymatters.org/

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The only explanation most people express is one of racism. If it was no big deal to have to stand, then why did the caucasian man demand to be seated? His action asserted a societal convention of racial superiority prevalent in the old South nearly a century after the end of a civil war, a convention that said no black person had ‘any right’ that a white man was bound by law or courtesy to respect, even in inconsequential things such as standing or sitting on a bus.

Most would argue that the man who was demanding Rosa Parks’ seat in the so-called colored-section of the bus, and the bus company that acceding to it, proved that the doctrine of "separate but equal" (that had existed before being outlawed by Brown v. Board of Education in 1954) was a lie. The demand for separation in itself created an entitlement of one race over another that violated basic notions of fundamental fairness and fundamental rights, as equal opportunity policies today shamefully do (with your acquiescence) in reverse. Do you understand the point?

Setting aside the emotional notions of race, what was the fundamental right, by staying seated in the face of a threat of arrest and jail, that Rosa Parks was asserting? As she told National Public Radio in a 1992 interview, "I did not want to be mistreated; I did not want to be deprived of a seat that I had paid for."

“I did not want to be deprived of a seat that I had paid for."

In short, Rosa Parks was asserting a fundamental property right. Rosa had purchased her ticket, and paid for it by the fruits of her own labor. She had boarded the bus first. She even sat in the section designated for her. Since she had purchased that seat and the bus company had sold it to her, nobody had a right to take her seat away from her. Rosa Parks' simple act of defiance was as profound a declaration of property rights and of freedom - as any in American history.

In her auto biography, "My Story," Rosa Parks wrote:

"People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in."

As far back as the Magna Carte in the 13th Century, it was established that "[n]o freeman shall be taken, imprisoned, disseised [i.e. dispossessed of property] ... except by the lawful judgment of his peers and by the law of land."

Rosa Parks’ rejection of the bus system's attempt to dispossess her of her seat was in line with what John Locke in his Social Contract theory would argue was the right to object by any individual denied his basic property rights, which governments are originated to defend, not offend.

Or, as Adam Smith in Lectures on Jurisprudence, declared:

"The first and chief design of every system of government is to maintain justice: to prevent the members of society from encroaching on one another's property, or seizing what is not their own (including earned wealth). The design here is to give each one the secure and peaceable possession of his own property."

Our most basic founding documents state, "all men are created equal, endowed by their creators with certain inalienable rights, life, liberty and the pursuit of happiness." What happiness can be pursued if government can simply take away anything that by "right" is supposed to be yours and yours alone? Maybe the government is telling you that what you think is your property is not yours, but belongs to the government.

Who will be the Rosa Parks of Eminent Domain property rights? Who will refuse to give up their seat on the bus that they have paid for and are entitled to keep, free from interference or seizure by the state, local municipality or corporate pirates? When that day comes, the whole nation will be in the bleachers cheering for the private property owner.

Who will be the Rosa Parks of gun ownership and refuse confiscation or registration of their privately owned and constitutionally safeguarded guns and ammunition?

Who will be the Rosa Parks of freedom of speech, the first to refuse political correctness? Don Imus had the opportunity but failed to rise to the occasion.

For that matter, who will be the next Rosa Parks? Are you willing to defend your property rights?

While you're thinking about it, keep in mind that everything is 'property rights,' at least in a free society with "liberty and justice for all." Conversely, whatever property it may be, if the State taxes it, the State owns it and rents to you the privilage of possession, transfer and/or personal use. If the State can take "your" property from you by any artifice for failure to pay taxes, then you never owned it.

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and while many scholars attribute their intention to limiting the power of the federal government, the fact is that they were intended to protect your private property rights. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, a strong central government would eventually become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of (property) Rights became part of the Constitution.

An "Amendment" is a change to the U.S. Constitution as it was originally written and ratified. The Constitution provides for several mechanisms for change, none of which include a judicial fiat, congressional legislation, or executive disdain for the rule of law.

A general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became your Bill of Rights in 1789 were:

First (property right) Amendment: addresses the rights of freedom of religion (prohibiting the Congress' establishment of any religion over another religion through Law and protecting the right to free exercise of religion), freedom of speech, freedom of the press, the freedom of assembly, and freedom of petition.

Second (property right) Amendment: declares "a well regulated militia" as "necessary to the security of a free State", and as explanation for prohibiting infringement of "the right of the people to keep and bear arms."

Third (property right) Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners.

Fourth (property right) Amendment: guards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. Some rights to privacy (another property right) have been inferred from this amendment and others by the Supreme Court.

Fifth (property right) Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy (repeated trials), except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the fifth" or "Pleading the fifth"). This is regarded as the "rights of the accused" amendment. It also prohibits government from taking private property without "just compensation," the basis of eminent domain in the United States.

Sixth (property right) Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.

Seventh (property right) Amendment: assures trial by jury in civil cases involving anything valued at more than 20 United States dollars at the time, which is currently worth $300, when accounting for inflation.

Eighth (property right) Amendment: forbids excessive bail or fines, and cruel and unusual punishment.

Ninth (property right) Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.

Tenth (property right) Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are "reserved to the States respectively, or to the people."

Your life is your property, as is every other form of your "property;" even your job is a form of property. Property rights are guaranteed to you by the U.S. Constitution and the Bill of Rights (first 10 Amendments). If you think the State, or your state, has extended their control to some aspect of your life in contravention of the Bill of Rights, then the State has diminished or seized (taken from you) some aspect your private property.

What specifically do you think you still own as private property that the State has not already seized (evidenced by the imposition of taxes) or regulated in some fashion? Do you even have freedom of speech?

Red State Patriot

Comments are welcome at redstatepatriot@hughes.net. Please include the title of the article as your subject line. Selected responses, in whole or part, may be published (appended to the article).

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When I first had this intuitive grasp of reality, this epiphany, my reaction was, "It couldn't be." However, Democrats, in their contemporary view, clearly consider the courts to be the legislative branch of the federal government. They see the Democratic Party's role being, not to attempt to legislate their agenda in Congress using a procedure constitutionally and historically based on a representative plurality of Americans, but instead to install activist jurists in State and Federal courts (with life tenure) who will legislate according to a Democratic Party agenda of advancing socialism. Who needs elections?

But the more I considered it, this truly is the understanding of the three branches of government that most liberals have. More importantly, it explains a great deal about the behavior of Democrats and liberal Republicans for the last 60 years. Today Democrats are obstructing all legislation (and all but the most liberal court nominees to a Judiciary out of constitutional control). The American Judiciary has become that hard nucleus about which liberals have formed in their quest for power. Emboldened by the Judiciary’s defiance of Congress and every legislature across the country, and most recently in KELO V. NEW LONDON (04-108) 268 Conn. 1, 843 A. 2d 500, affirmed., there is no doubt about what Americans can expect in the future. One can only hope liberals, misguided and ignorant of history, are going to like what they are going to get.

The focus of liberal socialism is nothing less than power and control, whereas the focus of conservatives is liberty with all its commensurate freedoms, i.e., freedom in each and every aspect of life. God, family and country are frequent references to a conservative’s core values. The one and only core value of liberals is “self.” Liberals state that ‘truth’ is relative and that each man and woman must decide for themselves what is right and what is wrong. Conservatives on the other hand see nothing relative in the concept of truth.

Yes, each man and woman must decide to do what is right and avoid doing what is wrong, and there are finite consequences to every decision we make. At issue is the foundation for each individual choice. If there are no rules that govern individual behavior that society will respect, that minorities of the population will accept when decided by the majority, then by definition there can be no laws. At that point, any laws take on a different intent, i.e., to passify and control a submissive population, advance an agenda, and maintain control. Why is that? Would you be surprised to learn that the basic tenet of atheism, secularism, and even Satanism are identical – that each individual should do as he or she pleases? The ultimate result of this philosophy is first anarchy and later totalitarianism in an effort to regain control of a society without rules. It would be easy to argue that we are very close to anarchy in every aspect and at every level of society, from border to border and sea to shinning sea.

Why are liberals and particularly Hillary Rodham Clinton, Harry Reid, Nancy Pelosi, Ted Kennedy, Barbara Boxer and the likes of John Kerry still proudly proclaiming their socialist ideals and egalitarian objectives? It is a fact that centuries of socialists' experiments, whether by utopians, Marxists, or Fabians, have always (without exception)ended in economic failure, destitution and a loss of personal liberty. More than a fact, since there are no exceptions, it is a universal truth. Another universal truth is the unchanging motivation of liberalism, i.e., self interest of the political elite, which increases exponentially in the form of power with each incremental loss of our personal liberty.

What then is the solution? Here is a hint: Without private property, which is the legal, moral and intellectual concept behind every one of the Bill of Rights, liberty cannot exist. Each and every "right" protected in the Bill of Rights is a form of private property.

You may think because you are an American, you are free, but you would be wrong. You may think you have freedom, but freedom is relative because without private property, you only have as much freedom as the government decides to let you have - and that is not liberty. Private property ended in the United States with the passage of the 16th Amendment to the U.S. Constitution, and with it our freedoms began to erode with each and every small step toward socialism.

Sadly, Americans have choosen to listen to the sirens of liberalism whose sweet song lures them to their doom - rather than heed centuries of warnings by failed example. Americans are steering their own ship of state onto the rocks. The few who have stopped up their ears with wax remain conservative (with value systems still intact and a healthy respect for the original U.S. Constitution) and can only watch in disbelief as the shoals draw visibly closer.

Red State Patriot

“Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.” —Patrick Henry

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When Reagan left office, the Supreme Court was still controlled by a majority of activist justices, as it is today.

I believe the Supreme Court is so broken it cannot be fixed simply by naming seemingly good candidates to the court, then hoping they vote like originalists during their life-long terms.

Institutional Reform

The Supreme Court needs to be reformed as an institution. It needs systemic solutions. Two I favor are limiting the terms of justices and giving Congress the power to veto a Supreme Court decision with a super-majority vote in both houses. Both reforms would require constitutional amendments. But it is time for conservative political leaders to start advocating them aggressively and making the case for why they are needed to the voters.

Originalists in the Reagan mold believe the federal government possesses only those powers specifically granted to it by the Constitution. Under the Constitution, the role of the courts is strictly limited. Their job is neither to make laws nor amend the Constitution but to interpret the laws and the Constitution as written, guided by the plain meaning of the words and the intent of the Framers.

“Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the Framers,” Judge Robert Bork once explained. “[J]udges may look to the text, structure, and history of the Constitution, but are prohibited from inventing extra-constitutional rights.”

Bork himself paid a high price for fidelity to this principle, and the Reagan Administration’s experience with his nomination helps illustrate why reform of the Supreme Court itself is needed.

When Reagan nominated Bork to the Court in 1987, liberal politicians and their allies in the media and in special-interest groups targeted him for character assassination. His views were systematically mischaracterized and maligned.

Even though Bork had been a law professor at Yale and had served with distinction as a judge on the U.S. Court of Appeals for the District of Columbia, four members of an American Bar Association review panel had the audacity to rate him “not qualified” to serve on the Supreme Court.

What they really meant is that they feared Bork’s intellectual power and commitment to an originalist interpretation of the Constitution.

Left's Desperation

The liberal elite are desperate to keep the Supreme Court on their side to advance liberal policy priorities that lack the popular support to win approval from state legislatures or Congress. It was not elected lawmakers who expelled God from the public square, conferred due process rights on al Qaeda terrorists and forced states to educate illegal aliens. It was unelected justices on the Supreme Court. For decades, this is the way the American left has won its most important political battles—not at the ballot box, but in court.

Because this is so, the liberal establishment will do whatever it can to stop the confirmation of originalist justices. If it cannot stop the confirmation, it will attempt to seduce the justice into its own ranks once he is sitting on the court. As I wrote in Men in Black, President Nixon clearly understood this when he was trying to decide whether to nominate Harry Blackmun to replace Justice Abe Fortas after the Senate had rejected Nixon’s first two choices for that vacancy.

Blackmun later recalled that Nixon asked him, “What kind of woman is Mrs. Blackmun?” When Blackmun wondered what this question was getting at, Nixon said, “She will be wooed by the Georgetown crowd. Can she withstand that kind of wooing?”

Blackmun contended she could. But, later, when Blackmun was contemplating whether the Constitution protected a right to privacy that encompassed a right to abortion, Mrs. Blackmun turned out to be the best-placed lobbyist for the pro-abortion movement. As Bob Woodward and Scott Armstrong revealed in The Brethren, the justice’s wife told one of Blackmun’s pro-abortion clerks: “You and I are working on the same thing. Me at home and you at work.”

The result was Blackmun’s Roe v. Wade opinion, which took the abortion issue away from state legislatures, where it had always been, and elevated abortion to a constitutional right.

After the eventually disappointing nomination of Sandra Day O’Connor to the first Supreme Court vacancy of the Reagan presidency, the Reagan Administration developed a very good system for vetting judges. But even this system did not always succeed.

Potential Reagan nominees were not subjected to a litmus test, but they were carefully interviewed about their overall judicial philosophy. The guide for this interview was the Constitution itself. Anthony Kennedy got through the interview.

On the surface, Kennedy looked good. He was an intelligent man who had compiled a good record serving in the hostile, liberal environment of the U.S. Court of Appeals for the 9th Circuit, which is based in San Francisco. On the West Coast, Kennedy hadn’t drifted noticeably left. But in Washington, D.C., he did. He wrote the Supreme Court’s 2003 decision in Lawrence v. Texas—holding that same-sex sodomy was a protected constitutional right. As part of his reasoning, Kennedy pointed to the European Court of Human Rights view on the subject.

Kennedy’s decision in that case was a classic example of judicial activism. He started with the result he wanted, and then went looking for a basis to justify it. In the end, he manufactured one.

Senate Democrats have made it even more difficult to achieve a majority originalist court with their widespread and unconstitutional use of the filibuster. Republicans will likely need a 60-vote Senate majority, or more, which would be a very difficult accomplishment.

While I believe the Supreme Court is long overdue for systemic reform, the requirement of amending the Constitution to achieve both term limits and the legislative veto would be a very difficult task. But unless we begin making the case now, explaining the necessity of the amendments to the public, we will never solve this threat to the system and process of government enshrined in the Constitution.

Putting term limits on justices is not a radical idea. It would actually help restore the balance the Constitution envisioned between the three branches of the federal government. With term limits, the Supreme Court would remain an independent body, but they would allow for the replacement of justices on a timely basis, rather than waiting for them to die or set their own retirement date. And if justices are going to use their positions to set policy and, in essence, participate in the political process without the benefit of standing for election, there really is no reason for them to serve for life.

Giving Congress a veto over Supreme Court decisions would also help restore the balance between the court and the legislature. If it took a two-thirds majority vote in both houses to veto a decision, such vetoes would not happen often. But it does allow the people, through their elected branches, to have the last say. For example, I believe the horrendous Kelo v. New London decision, which said local governments can seize private homes and turn them over to private developers for the purpose of raising the tax base, may have garnered the bicameral two-thirds needed for a veto. Were the court to misuse the 14th Amendment to create a right to same-sex marriage, as I suspect it might, that, too, might secure the two-thirds votes necessary for a congressional veto.

There was no greater advocate of representative, constitutional government than Ronald Reagan, and no more outspoken opponent of unbridled judicial activism. If we are to preserve the Constitution as he and the framers understood it, then the Supreme Court must be reigned in through these modest reforms that also respect the independence of the court.

Mark R. Levin served as chief of staff to Attorney General Edwin Meese in Reagan’s Justice Department
http://www.humanevents.com/article.php?id=18508

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Would John Danforth or his successors—and for that matter, any and all of our elected representatives—have to defend our Constitution against enemies within our own country? Yes, they will—or they had better—because the enemy is upon us already.

In 2006, our country is again gripped and increasingly bound by tyrants—not regents and despots from afar, but by cancerous growths from within. Long ago it was prophesied by objective observers that America was too strong to be defeated by outside forces, but it could someday rot and crumble from within and go the way of all the other great nation-states, succumbing in the slime of selfishness, greed, immorality, and abuse of its own freedoms.

It’s happening all around us. Our valiant ship of state is listing, springing dangerous leaks in vital places, threatening after only 230 years to sink into the abyss of history. Fellow citizens, we won our first revolution under God; now, because of the inroads that have been made already against many of the values we hold dear, I call for a new revolution!

What are the powerful forces steadily binding us all around, like a sleeping Gulliver in Lilliput Land, robbing us of the very liberty to perpetuate the vision of our Founding Fathers? There are several, and they are pernicious, relentless, and eventually fatal. I’ll list the most obvious:

Ignorance, which is appalling, pervasive, and increasing daily. Basic literary and math skills diminish. Newspapers choose 4th grade vocabulary and short, shallow stories to cater to the lowest possible denominator. They’ve discovered that the median reading comprehension level in America today is at the 4th grade level. American history is abbreviated and given short shift, taught very selectively according to prevailing “political correctness” and intellectual bias. Left-leaning media and even liberal church groups abandon “first principles” and historic guidelines, constantly brainwashing the masses, cutting them adrift from ancient moorings into a sea of aimless relativism.

Apathy. America grew huge and strong on the near-unanimous involvement of its citizens. In war or peace, every vote counted and every voice could be heard. From each ward to each city hall to each county board to each state house and to each legislature to the very halls of Congress, the citizens took part, debated, came to majority agreements, and moved forward. Today, too often half or more of our citizens who are eligible don’t even vote! They feel left out, unnecessary, distracted, cynical, and alienated—and, of course, ignorant of the issues—so they stay home and grouse. This has to stop! Citizens, this new revolution must overthrow the bonds and blindness of ignorance and disinvolvement. Our country must be stirred and called to action!

Materialism/Need. I’m combining these two because I believe they are related. Greed, corporate and personal, combined with inevitable dishonesty (the Bible says “the love of money is the root of all evil”) widen the gap between multimillionaires and the multi-millions of hard-working families and retired seniors—not to mention the physically and emotionally handicapped and ill—who can’t pay all their bills or even afford their medicines, even if they work two or three jobs. Well-intentioned politicians keep calling on Big Brother government (the groaning taxpayers, namely, us) to solve the problems with bureaucracy.

Citizens, socialism is not the answer! Social responsibility is—individual, local, and active response to our brother’s needs. And the new revolution must have the sensitivity and heart and will to voluntarily use our vast resources to meet our human needs. The early colonists who gave us this nation knew how to do that; we’ve got to learn how all over again.

Humanism, Immorality, and Godlessness—an unholy trinity. Most Christians believe in a triune God: God the Father, God the Son, and God the Holy Spirit. Many Old Testament scriptures foreshadow each of these three distinct persons in the same Godhead. But today in America, we are confronted and threatened by an unholy trinity that has sunk its roots deep down into our society: godlessness, immorality, and humanism.

Remove God from public life (as a number of perverse, determined, and well-funded activist groups are doing very effectively), and a cancerous spirit of immorality seeps relentlessly across the land like a poison gas, corrupting all forms of entertainment, encouraging drugs and violence and rampant promiscuity in the streets, in schools, homes, businesses, politics, and even some churches, with the inevitable surrender to humanism. Man rules his own destiny, God is dead, and “if it feels good, do it!” Radio personalities wince when they’re fined for obscenity and sacrilege by the Federal Communications Commission and rail at the President demanding their “First Amendment rights.” But they’re not seeking “free speech”; they’ve had that their whole lives and careers. No, they want “freedom of filth.” Our Founding Fathers would have had them tarred and feathered and whipped in the public square.

In 1952, U.S. Supreme Court Justice William Douglas declared, “The First Amendment does not say that in every respect there shall be a separation of church and state. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other-hostile, suspicious, and even unfriendly. We are a religious people and our institutions presuppose a Supreme Being. We cannot read into the Bill of Rights such a philosophy of hostility to religion.”

Wise old Ben Franklin, certainly no religious fanatic, said “only a moral and virtuous people are capable of freedom; the more corrupt and vicious a society becomes, the more it has need of masters.”

George Washington clearly and bluntly stated, “religion and morality are the twin pillars of freedom!” And our fourth president, James Madison, to whom many refer as the “father of the Constitution,” said this, “We have staked the whole future of American civilization not on the power of the government, far from it. We have staked the future of our political institutions upon the capacity of each and all of us…to govern ourselves according to the commandments of God. The future of America is not in the Constitution, but in the laws of God upon which this constitution is founded.”

Citizens, the enemy within has already subverted the Constitution and bound us with ever strengthened cords of immorality and indecency and godlessness. We must mount a new revolution and throw them into the sea! Judicial Activism—lawmaking judges, Wyatt Earps who shoot not from the hip but from the bench.

Thomas Jefferson warned us: “Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath? I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.” Jefferson didn’t fear the executive or legislative branches of government; he knew they would obey the citizens who elected them. But we would have to be very watchful lest unelected jurists bind upon us their views, not the expressed will of the people. And look: In just two or three decades, renegades in black robes, ignoring or perverting the Constitution and the Bill of Rights, have been responsible for taking prayer from school children, taking every mention of God from the public square, authorizing 40 million abortions, dictating severe reversals of states’ rights and individual freedoms, and even now they are redefining the institution of “marriage,” flying in the face of all recorded history and the very foundations of society.

Citizens, we need a new Boston Tea Party. Only this time, let’s not waste perfectly good tea. Let’s heave a bunch of black robes into the harbor with some of those vigilante judges in them. It won’t hurt the robes, and the defrocked jurists can swim out and reenroll in Constitution 101!

Fellow citizens, fellow Americans: Our forefathers, the early colonists, were decent, hardworking, ordinary people who rose to the challenge that confronted them, threw off the yoke of British bondage and unfair taxation, and established a new republic. Like trichinosis in pork, our muscles and our will have been sapped and weakened by insidious forces from within. Do we still have the will, the vision, the zeal—and the plain old gumption— to stand up to these invaders, root them out, overturn their unconstitutional rulings, and reestablish our republic that represents not just all its citizens, but our traditional morals and guidelines? If we do, let the revolution begin! And God bless America one more time!

Delivered at the Heritage Foundation, November 29, 2006 by Pat Boone.

Pat Boone is a recording artist, entertainer, bestselling author, and a national spokesman for the 60 Plus Association (www.60plus.org).

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