The Constitution, the First and Second Amendments and the Bill of Rights

The “average American” has the mistaken idea that the US Constitution is the document that gives us our rights. This is not surprising since “the average American” has probably never actually seen the Constitution and if they have, they don’t know what a constitution is. Yes, we have rights but they come from amendments to the Constitution, not from the Constitution itself.

The definition of a constitution is actually quite simple – it is “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.” It doesn’t matter whether the organization is a state, a club or a church, the definition is still the same. In the case of the US Constitution, it sets the principles under which the government of the United States, the Federal government, is supposed to operate. Originally, the rebel colonies established a government based on Articles of Confederation  which gave a central government the power to wage war against the British and conduct diplomacy with the rest of the world.  The Articles remained in effect after the British granted its former colonies their independence. (Although the Battle of Yorktown is touted as a British defeat with King George relinquishing his power over the colonies, it was actually the British Parliament who made the decision to discontinue financing of military operations in the colonies due to Britain’s wider war with France and Spain.) However, the Articles were seen as inadequate because (1) they gave the government of the United States no power to tax and (2) there was no judicial system to settle disputes between the states. A rebellion in Massachusetts had to be met by a private militia because the Articles made no provision for raising troops.  Consequently, former colonial leaders proposed a convention to consider the situation. The convention met in Philadelphia over the spring and summer of 1887.

Although the purpose of the Philadelphia Convention was to rewrite the Articles of Confederation to strengthen the existing government, some delegates, particularly James Madison of Virginia and Alexander Hamilton of New York with support from John Jay, also of New York, felt the existing government should be abolished and a new one established. They began referring to themselves as “federalists”, meaning they favored a stronger national government than the one that existed under the Articles of Confederation. Led primarily by Madison, the delegates produced the Constitution of the United States, which, upon ratification by the states, established a government consisting of three separate but equal bodies called branches, the legislative, executive and judicial. An article delineated the role of each branch. The Legislative Branch would consist of two bodies, a House of Representatives made up of representatives elected by the people of each state,  and a Senate made up of senators chosen by each state, usually by the legislature. The Executive Branch would be presided over by a president elected by electors chosen by the states with a vice-president, also chosen by electors.The Judicial Branch would include a Supreme Court made up of judges appointed by the president with the advice and consent of the Senate.

The proposed Constitution established a government, but it had to be ratified by the states. Opposition was strong. Virginian Patrick Henry had refused to attend the Philadelphia convention, stating that “I smell a rat in Philadelphia, tending toward monarchy.” Henry argued against ratification, as did many others, including Baptist preacher John Leland, who pastored in the district James Madison hoped to represent. It is an established fact that Leland played an instrumental part in convincing Madison of the need for a bill of rights, particularly a right of freedom from interference by the new national government, if and when it was established, in all matters related to religion. Patrick Henry saw to it that Madison would not be elected to the new senate and took steps to prevent his election to Congress. However, with the help of the Baptists in Orange County, his home county, after he promised to submit a Bill of Rights, Madison was elected to the 1st United States Congress.

James Madison went to the first Congress and submitted a bill guaranteeing nine rights – he proposed that the Constitution itself be changed – but the Congress came up with not ten but twelve amendments to be added to the original document, of which the amendment establishing religious freedom and freedom of speech and the press was third, not first. The first proposed amendment pertained to the establishment of proportion of representatives per population. It never passed. The second established that Congress would not pass any law pertaining to compensation to take place until after the next election. The 1st Congress did not pass it and it remained on the books until 1982 when a college student discovered it and began a campaign for ratification. It was ratified as the 27th Amendment on May 7, 1992.

The first item in Madison’s bill of amendment read – “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.” They were followed by guarantees of freedom of speech, the press and assembly, and the right to petition for grievance. The next words were – “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”  His words were modified and became the First and Second Amendments to the US Constitution, and the foundation of what was called The Bill of Rights.

Madison’s first words were changed considerably to -“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.” His second proposal was also changed – “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.” In both instances, the changes made the two amendments more nebulous than Madison’s original words. In his original wording, Madison made clear that he was proposing complete freedom of religion in terms of civil rights. The change made the amendment pertain solely to Congress rather than to civil rights in general. This has led to considerable confusion and legal interpretations that stray from the amendment as written, but are in some respects more in line with Madison’s original wording.

It’s easy to understand why Madison’s proposed amendment regarding religious freedom was changed. At the time, all of the new states except Rhode Island and Virginia had an established church, a religious body sanctioned by the state and supported by levies placed on all of the state’s citizens. (The word “church” is misleading, it’s taken from a German word “kirche” which actually means a place of worship. The word translated as “church” in the English Bible is ekklesia, a Greek word meaning a called-out assembly.) By changing the wording and inserting “Congress,” the amendment would be more palatable to the residents of states with established churches. As it was, established religion continued in those states that had it with Congregationalist Connecticut being the last to abolish it in 1818. Such states continued to persecute members of other faiths – particularly Baptists – until the state churches were abolished.

In what became the Second Amendment, Madison made clear that the right to keep and bear arms pertained specifically to the people, then justified that right by connecting it to the militia, which at the time was considered to be the entire male population of the former colonies. (The word “militia” means “military service.”) Virginian George Mason defined the militia as “the whole people, except for a few public officials.” There can be no doubt that Madison and the Founders intended two things – (1) “The people” (not the state) should be free to keep and bear arms and (2) they saw an armed population as the basis for a free society. After all, they were meeting in 1787, only three years after the conclusion of a successful revolt against that some colonists believed to be tyranny in which militia had played a major role. Madison was inspired by the Virginia Declaration of Rights, written by George Mason, which said – “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” Mason’s declaration applied to Virginia but Madison’s applied to the new United States as a whole. There can be no doubt that the Second Amendment, as proposed and written, applies to the individual, not the state.

The “militia” is misunderstood today to apply to what is known as the National Guard. However, the National Guard is actually a reserve element of the national United States Army and Air Force. No such organization existed prior to 1903 when the Dick Act nationalized the state militia organizations, some of which had taken to calling themselves “the National Guard” although no such title had been recognized by the United States. The Dick Act essentially made the National Guard a part of the United States Army. In 1933 Congress decreed that any man who enlisted in a National Guard unit was also enlisting in the Army reserve. In short, the “militia” referred to in the Second Amendment is not the present-day National Guard and Air National Guard.

Republican presidential candidate Donald Trump caused a furor when he commented while talking about how his opponent, Hillary Clinton, seeks to do away with the individual right to keep and bear arms, that “I don’t know, Second Amendment people might be able to stop her.” Members of the media jumped on their Smart Phones and Tablets to pound out stories about how Trump was advocating that someone assassinate Hillary Clinton. Trump supporters said he was advocating that people vote for him. In fact, Trump was referring to the political power of those of us who support the Constitution and its amendments in their entirety and how we have the power to block any nominations threatening it. The Constitution is the foundation of our nation and an armed citizenry is the most effective means of protecting it.

 

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Author: semcgowanjr

I am a native of West Tennessee but have lived in North Carolina, Georgia, South Carolina, Delaware, Tennessee, Arkansas, Virginia, Kentucky, Texas and Ohio and now live in Texas near Houston. Twelve years of my life were spent in the Air Force. After leaving the military, I became a professional pilot and worked for two large corporations as a corporate pilot before I took early retirement on December 1, 2000. I went to work for Flight Safety, Texas as a ground school/simulator instructor and worked for a year and a half until I was let go due to downsizing. After leaving FSI, I went back to flying as a contract pilot and aircraft management company pilot until I quit flying in 2010 due to medical issues. I am rated 50% disabled by the VA for Type II diabetes related to herbicide exposure in South Vietnam. I spend my time writing. My books can be found at www.sammcgowan.com/books.html.

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