THE LIBERTARIAN ENTERPRISE
Number 362, April 9, 2006
Free Market Money
Special to TLE
Last week, I was searching through news headlines when I found another story about another state working for passage of a "stand your ground" law (that's a law that says you aren't obligated to retreat before using deadly force if you believe that deadly force is warranted). While I thought the law was a good thing, when I passed along the news to others online I also pointed out (just a little tongue in cheek) that all of us already had one of those, no matter where we lived, and that it's called "The Second Amendment."
States have some good reasons to consider these "stand your ground" laws. Not least of them is the fact that would-be crime victims are all too often victimized again by both the government (when unwarranted assault or murder charges are filed but which are never-the-less mandated by one of thousands of anti-gun laws on the books) and the criminal or his family (who apparently believe it's entirely the fault of the victim that their loved one is hurt or dead). What probably pushed at least some legislators over the edge is the added factor of state's utter inability to protect those they've sworn to keep safe (just this month, an appalling story out of Tennessee showed that 911 operators weren't even answering some of the calls that were coming in).
Needless to say, The Brady Campaign (which I like to call The Brady Bunch given the similarity between the anti-gun zealots and the often pointlessly squabbling children of the 1970's TV show) isn't happy about such laws. In fact, the group even set up a special web site and advertising campaign specifically geared toward making a big deal out of the Florida law (which happened to be the first of its kind). That there's only been one reported shooting under the measure in the months since it became law gives lie to Brady Bunch hysterics (what else is new?), but has had little effect on those opposing such laws in other states who are considering doing the same.
In June of 2005, the US Supreme Court issued its decision in a case heard across the country, at least by property owners (and unfortunately by a number of municipalities eager to take advantage of the precedent while it stands). Kelo v. New London addressed the usage of eminent domain for economic purposes. The Fifth Amendment to the Constitution says that government shall not take "private property...for public use without just compensation." In its decision, the Supreme Court sided with a Connecticut city that claimed economic development could be defined as public use.
Obviously, there was some dissent, and some of the most stinging came from then-Justice Sandra Day O'Connor who feared that property would be offered to the highest bidder by cities anxious to increase their tax base. The majority decision itself was surprisingly weakly stated in that one justice actually took official note that states could act to contravene the High Court's ruling, and states have been doing just that ever since.
Meanwhile, the First Amendment is the subject of some debate where it concerns the predations of the Reverend Fred Phelps (I use the term "reverend" exceedingly loosely). Phelps and his followers (mostly his own immediate family) are traveling to the funerals of soldiers killed in the Iraq War and conducting protests. Holding signs that exemplify such Christian love as "God hates fags" and "Thank God for IEDs" (improvised explosive devices, which have killed significant numbers of American soldiers in Iraq), Phelps blames every soldier's death on American tolerance for homosexuality (never mind that the tolerance is all too often limited).
Because of Phelps' choice of venue, our respect for grieving families, and our gratitude for the sacrifice of soldiers, many states are taking actionor considering doing soto prohibit protests at funerals. To his credit, Phelps has said that if such laws are enacted, he and his group will obey them. But many civil liberties activists are cautioning lawmakers that they're treading a fine line as they effectively attempt to selectively prohibit certain speech (in what I consider a far more appropriate response, a large group of bikers has taken to attending military funerals and providing a respectful buffer between Phelps' friends and mourners thus engaging in their own freedom to assemble and speak).
Thanks to the War on Drugs and the War on Terror, much of the Fourth Amendment has long been disregarded by the authorities. Fortunately, one good decision has just come out of the US Supreme Court as concerns our Fourth Amendment rights. In Georgia v. Randolph, the High Court ruled that if one resident of a home refuses a search, authorities can't conduct a search even if another resident of the premises agrees. I fully expect to see somebody somewhere address this "loophole" with legislation, but until he or she does, some small segment of the Fourth Amendment remains intact.
Some states have also been enduring Tenth Amendment issues. According to the text of the Tenth Amendment, "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." Yet states that have passed medical marijuana initiatives are routinely being overridden by federal authorities, and the mandates of the people and their legislatures are being cavalierly disregarded. Some have chosen to fight the issue, but to date, it's been largely a losing battle despite the fact that no lesser a personage than Supreme Court Justice Clarence Thomas noted in one decision that "important underlying constitutional questions remain unresolved, such as Congress' ability to interfere with states experimenting with their own laws."
Much as I noted in the matter of "stand your ground" laws, neither debate nor more laws would be needed if we only adhered to the Constitution in the first place. The Bill of Rights is written in English, and given the import of the document, in surprisingly simple language. I don't believe for a minute that the Bill of Rights requires the interpretation of anybodynot judges, cops, lawyers, or lawmakers. Anybody who speaks relatively fluent English ought to be able to understand it just fine.
I've personally read through the Bill of Rights any number of times, and I reviewed it again before beginning to write this essay. And above all of the other things it says, what it does not say might be even more important. It does not say "except."
The First Amendment does not say that we have the freedom to assemble or to speak freely except when we're assembling to say unpopular things. The Second Amendment does not say we have the right to bear arms except when some unreasoning folk are fearful of tools they don'tand don't care touse or understand. The Fourth Amendment doesn't say warrants are required except when the police (or the president) don't want to get one. Nowhere in my copy of the Bill of Rights does the Fifth Amendment suggest that public use is public use except when cities define it more broadly so they can collect more taxes.
I'm no fan of zero tolerance laws. Those are the ones that see kids suspended from school for sharing a breath mint with a friend or expelled because they have a butter knife to use on a sandwich. Zero tolerance has filled our prisons with non-violent men and women who've not committed any real crimes. (If the Founding Fathers had seen something wrong with recreational drug useyes, there was such a thing as recreational drugs even thenthey would have condemned them. That they didn't officially do so speaks of things present-day authorities don't want to hear).
All in all, zero tolerance typically makes zero sense. But conversely and with not a little irony, zero tolerance could also save our freedom. Any law that contradicts any of the Bill of Rights should summarily be stricken from the books. After that, and for all time, no law that contradicts the Bill of Rights should be enacted.
If we continue to "interpret" that which is obvious so that it suits our immediate needs, we'll have no freedoms at all except those that the government chooses to grant us (which is sadly and all too rapidly becoming the case). Sure, there will be reversals like "stand your ground" laws or legislation that curbs eminent domain now and then just to lull us into a false sense of liberty. But those exceptions will eventually prove the rule, and the entirety of the Bill of Rights will no longer be any such thing.
Tom Paine Maru