Where is the Line?

Hopefully it’s drawn somewhere before you step on my toes…

“The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object.  But the good of this instance vastly overweighs the evil.

But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution.  This instrument forms us into one state, as to certain objects, and gives us a legislative & executive body for these objects. It should therefore guard us against their abuses of power, within the field submitted to them.

I am much pleased with the prospect that a declaration of rights will be added; and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it.”

~ Thomas Jefferson, letter to James Madison, 15 March 1789


I take my rights seriously.  You should too.  Interestingly enough, I also happen to take yours seriously.  So did the founding fathers.  This brings us to an interesting dilemma.  If both you and I have fundamental Constitutional rights, many of which were guaranteed by the Bill of Rights (or the Declaration of rights as Jefferson refers to it above), what happens when my use of my rights tramples on your use of yours?  Or more simply, where does the boundary lie between my freedoms and yours?  If this question sounds complicated to you, that’s good, because it is.  It gets at the heart of the only reason why government is typically legally (and constitutionally able) to legislate on any of the fundamental rights.  Otherwise, the Supreme Court or some lesser court, will in the course of time strike down any law that infringes on our Constitutionally guaranteed freedoms.  The beauty of this system is that it forces us as a society, and our legislators and justices through the legal system and the courts, to truly wrestle with the nature of fundamental rights for everyone, how they ought to be applied, and where, in some cases, they don’t apply.

And don’t be confused, there are some things you cannot do with your rights.  In the case of freedom of speech, you cannot libel or defame another person without facing consequences.  Your freedom to say whatever you want only extends as far as that other person’s freedom not to have untruths spread about them that could cause them irreparable harm in their functioning in society.  Therefore, the government can legislate to protect the freedoms of one person from trampling on the freedoms of another.  Similarly, while the Bill of Rights grants freedom of religion and the First Amendment specifically states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” it has long been considered a legitimate practice not to allow religions to do something otherwise illegal just because it is part of their faith.  The most egregious modern examples that come to mind in the United States have been the sects that engage in the forcible (and illegal) marriages of underage “brides” to older men, acts which essentially result in what is legally rape of a minor and child molestation.  Much the same, the right to “peaceably assemble” has its limitations too.  Local authorities are allowed to require permits for large demonstrations, and sometimes require police and fire departments to be notified.  This is considered constitutional as long as all those who want to assemble have to follow the same set of rules.  This is essentially so protestors don’t shut down an entire city with their protesting.  The point is, that our rights are guaranteed as long as they don’t take away from the rights of others.

This brings me to an interesting place.  There is one amendment in the Bill of Rights that seems to have every sort of “wrong” legislation (as in borderline or definitely unconstitutional laws), and no “right” legislation (that is legitimately thought out and constitutionally defensible laws).  And it also has one of the most powerful interest groups meddling in the way legislation can be cast (and we know how the founding fathers felt about large, monied interest groups).  The Second Amendment states that “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.”  Why was this important to the founding fathers?  Well, pretty obviously, they just fought a revolution against a mother country that quartered troops in their homes, and rounded up the colonies’ weapons and other supplies, before proceeding to impose all sorts of martial law on them.  There’s a nice trick, it’s illegal to have weapons, so we are going to take them all, and now that we have the only weapons we will change the rest of the laws so you have to do what we want.  Is it any wonder that so many other countries are able to oppress their people so easily?  A populace that has no means of defending itself is basically doomed to defeat.

And that, my dear Readers, is the origin of the Second Amendment, the founding fathers were giving the people the fundamental rights to protect themselves should anyone, including their own government, try to abuse them.  But, as with every freedom, this freedom only goes as far as it doesn’t infringe on the freedom of others.  The right to bear arms does not equal the right to use them with abandon.  Everyone else has the right to “life, liberty, and the Pursuit of Happiness”, so I have an obligation that while I exercise my right to bear arms, I not take away those rights of others recklessly.  Public safety and gun safety are legitimate avenues of legislation, while gun control violates the very premise the second amendment is built on, which is probably why the public discourse on this issue is so utterly pointless.  No one wants to see movie theaters full of people killed by a psychotic armed gunman.  No one wants their rights to be infringed upon either.  But as the founders have already shown us, there is another way…one where we carefully draw the lines to ensure that everyone’s rights are taken into account.  Unfortunately, it seems that these days no one is interested in thoughtfully and carefully legislating on anything anymore.


Res Publica

Documentation without Representation:

Thomas Jefferson, Letter to James Madison, 15 March 1789


Electronic text courtesy of The University of Chicago Press


One Comment on “Where is the Line?”

  1. theangryhistorian December 16, 2012 at 12:55 pm #

    Dear Readers,
    I wrote the following on Thursday, as per my usual schedule. The tragic events of Friday have made my comments more timely than I had already believed they were. I sincerely believe that the study of the past serves to illuminate the present and create the future. My concerns on this issue were a reflection of my fear that without serious discussion, we were heading straight on the path towards another tragedy. As I told a friend who mentioned that the timing of my post was eerie, sometimes being right is not rewarding. Unfortunately, as it is with most cases, if we don’t learn from the past, we truly are doomed to repeat it.

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