L. Neil Smith's
Number 251, December 14, 2003

Remember the Bill of Rights

Bill of Rights
by Dennis Kabaczy

Exclusive to TLE

As we approach Bill of Rights Day (15 December) we should pause and reflect on the state of the Republic. Remembering, that if not for the Bill of Rights, there would not be a united States of America. (Not a typo, look at the Constitution) The Federal Constitution was debated and ratified in convention on 25 September 1789. It was another two years, and much wrangling before enough States agreed, and then only with the provision for a Bill of Rights.

So where do we stand?

Amendment I: 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.

How many instances have you heard of Christian symbols not being allowed in Christmas displays? Tried holding a public gathering without a "permit"? Does the term "sovereign immunity" mean anything to you?

Amendment II: 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.

Do we need to discuss the National Firearms Act, the Gun Control Act of 1968, the Lautenberg ban, the adequate capacity magazine ban, or any other gun control law? How about victim disarmament laws?

Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

There are those that will tell you this is the only amendment not violated. This amendment is a direct result of the British quartering troops in homes in Boston. I submit to you that with the militarization of our police forces, the multiplication of police forces at all levels, and the taxes we have to pay to support them, that in spirit, this amendment was long ago left by the wayside.

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

How about the warrantless searches permitted under the Patriot Act?

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Can you say "Jose Padilla?" He has been imprisoned since 8 May 2002 without access to a lawyer, nor formal charges being filed.

Same offense twice? How about civil rights charges filed against Sgt. Stacey C. Koon, Ofc. Laurence M. Powell (Larry Powell), Ofc. Theodore Briseno, and Ofc. Timothy Wind, the officers acquitted of assault with a deadly weapon, and use of excessive force in the beating of Rodney King. Now I'm no fan of the police, but if it can happen to them, it can happen to anyone deemed not politically correct for any reason.

Asset forfeiture fits in here, as well.

Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Jose Padilla fits in here also. So does any other "detainee" who has not been charged, nor allowed to speak to an attorney. Persons who have their trial transferred to another jurisdiction involuntarily, have lost the right to a "…trial by an impartial jury of the state and district wherein the crime shall have been committed…". Speaking of an "impartial jury," what does "voir dire" mean?

Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

How often do we hear of "Bench Trials", where there is no jury present?

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Given that fines levied "administratively" by bureaucrats such as the EPA can run thousands of dollars per day, or that penalties levied by the IRS are often multiples of the amount in question, this amendmend has also gone by the wayside.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

How far do you think you'd get in a trial citing the Ninth Amendmend as a defense?

Amendment X: 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.

States Rights have been dead since the Civil War, and even had another nail hammered into the coffin by the Seventeenth Amendment, which provided for popular election of senators, and thereby removed control of the Senate from State governments.

In general, the Federal Republic the founders envisioned disappeared sometime between 1830 and 1945. Different people might cite different times, but the effect is the same. The only questions remaining boil down to are we better off, or worse? If worse, how much longer do we tolerate it, and how do we attempt to change it? It has been said that three boxes preserve due process and the republic. Those boxes are the ballot box, the jury box, and the cartridge box. I submit to you that through the two "major" parties, and their manipulation of ballot access laws, combined with administrative legislation by fiat, that the ballot box is being taken away from us. With voir dire, and judges instructions that juries may only try the "facts" of a case, and not the law, combined with public education failing in its duty to educate our children adequately in history and civics, we are losing the jury box. More and more, though I regret to say it, I believe we are going down the same road that King George III and the British Parliment dragged the Founders. Unless the government, the parties, and the schools change their ways, it will not be long before this nation is once again torn asunder.

I would recommend to anyone who has not recently read it, to review Patrick Henry's speech to the Second Virginia Convention, 23 March 1775

Dennis Kabaczy is a Physician Assistant in the Metro Detroit area. Married with a seventeen year old daughter about to get her unrestricted driver's license. May God have mercy on his soul.

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