The Self-Protection Amendments

November 6, 2024, we studied the 2nd, 4th, and 5th Amendments.

As a side trip, we enjoyed an explanation of the necessity and value of the Electoral College through the analogy of a baseball championship. In summary, the championship is decided by who wins the most games, not who gets the most runs!

The second Amendment ensures all citizens have the right to self-defense, and the Constitution would not have been approved without a guarantee that this and the other Bill of Rights amendments would be included immediately. The opinion that carrying weapons was a right intended only for militias, or for some other form of state-organized entity, would have been considered nonsense by those who ratified the Constitution. Among many others, the following examples of their commentary may be useful to you in that regard:

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Judge Zephaniah Swift, author of the first law book in America: “Self-defense, or self-preservation, is one of the first laws of nature, which no man ever resigned upon entering into society.”

James Kent, the “American Blackstone”, who laid the foundation for American law along with Joseph Story: “The municipal law of our country has likewise left with individuals the exercise of the natural right of self-defense. The right of self-defense is founded in the law of nature and is not — and cannot be — superseded by the law of society.”

James Wilson, who signed both the Declaration and the Constitution, served on the first Supreme Court, and founded the first law school in America: “The great natural law of self-preservation cannot be repealed or superseded or suspended by any human institution. The right of the citizens to bear arms in the defense of themselves shall not be questioned.”

James Madison: “The advantage of being armed is an advantage which the Americans possess over the people of almost every other nation. In the several kingdoms of Europe, the governments are afraid to trust the people with arms.”

Thomas Jefferson: “No citizen shall be debarred the use of arms within his own lands.”

Patrick Henry: “The great object is that every man be armed. Everyone who is able may have a gun.”

Sam Adams: “The Constitution should be never construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

Richard Henry Lee: “[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them…”

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James Wilson also commented that if any man’s house is robbed, “it shall be esteemed his own default and negligence,” just to be clear! As the commander of your castle, it is your responsibility to keep it safe.

James Madison may have made the reference to Europe because as Britain was considering how to subdue the American colonies, they were advised to begin by dis-arming them. For this and other reasons, Thomas Jefferson told those who wanted us to be more like Europe that “The comparisons of our governments with those of Europe are like a comparison of heaven and hell.”

The fourth Amendment protects the privacy of our “persons, houses, papers, and effects (property)”. This addresses one of the grievances listed in the Declaration of Independence. The British would obtain “writs of assistance,” which were open-ended authorizations to search you and your property for anything they wanted to look for. Upon finding something that appeared to violate their rules — buying sugar from someone other than the King, for example — the search warrant would be filled in accordingly.

The unwarranted searches of our belongings at the airport are an obvious example of violations of that Amendment today. Another may be an IRS “audit” that does not begin with a judicially-issued warrant listing the particular items to be examined. This area is a prime example of why John Jay admonished us that we as citizens need to study the Constitution, so that “by knowing [our] rights, [we] will sooner perceive when they are violated, and be the better prepared to defend and assert them.”

The fifth Amendment prohibits the government from taking property without just compensation, and protects you from having to offer evidence that might be used against you. An obvious form of “taking” is called “eminent domain,” under which your property might be taken from you to make way for a highway. A more recent concept of taking property for “public purposes” instead of “public use” has opened the door for serious violations of this Amendment. Similarly, regulations which prohibit the intended use of property and thereby reduce the value of that property are a “taking” without compensation.