Not historically correct (e.g, it was Madison, not Jefferson who wrote the Constitution).
Learn more here: www.takeonthecode.com
Showing posts with label bill of rights. Show all posts
Showing posts with label bill of rights. Show all posts
Friday, February 14, 2014
Saturday, November 19, 2011
Rights
There is all this talk about claiming rights which are either natural or god given, which is fairly nonsensical since anyone can claim anything as a right. The real hitch is enforcing that right.
Not to mention the idea that a right represents can change with time, such as the Second Amendment of the US Constitution which is supposed to protect the institution of the Militia, but has been perverted to some personal right to firearms outside the context of that right.
I ask does a similar concept of "gun rights" exist in other common law jurisdictions, yet no one can provide an analogue.
Greg points to state constitutions, but State Constitutions can expand upon the right--they cannot subtract from the right.
I decided to look up The Universal Declaration of Human Rights. This document contains many interesting rights such as
Article 3's Everyone has the right to life, liberty and security of person.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 27: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
But, despite all the wonderful rights I've mentioned "Gun rights" and "a right to armed self-defence" is conspicuously absent.
Why is this? Is it because those rights do not follow the general scheme of the Declaration:
If we go by this document, the US Constitution allows for the rule of law (if it existed in the US) as a buttress to the rights mentioned in the Bill of Rights, not arms.The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352
The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are:
i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.
So, if one claims a right, one needs a source to back up that right and a legal basis for claiming that right. Not to mention for it to truly be effective, that right needs to be enforcable under the legal system.
If we are getting into the Second Amendment, post-Heller, federal and state courts have rejected Second Amendment challenges to a wide variety of firearms laws nationwide. As discussed in Section IV below, the majority of Second Amendment challenges have been raised in criminal cases. These challenges have been largely unsuccessful, as courts have found that the Second Amendment is consistent with numerous federal and state criminal laws. Since the Supreme Court’s Heller and McDonald decisions, the nation’s lower courts have been clogged with a substantial volume of Second Amendment litigation, despite the fact that most, if not all, federal, state and local firearms laws do not prevent a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense, and thus, would satisfy the Supreme Court’s holdings in those cases.
Not to mention the idea that a right represents can change with time, such as the Second Amendment of the US Constitution which is supposed to protect the institution of the Militia, but has been perverted to some personal right to firearms outside the context of that right.
I ask does a similar concept of "gun rights" exist in other common law jurisdictions, yet no one can provide an analogue.
Greg points to state constitutions, but State Constitutions can expand upon the right--they cannot subtract from the right.
I decided to look up The Universal Declaration of Human Rights. This document contains many interesting rights such as
Article 3's Everyone has the right to life, liberty and security of person.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 27: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
But, despite all the wonderful rights I've mentioned "Gun rights" and "a right to armed self-defence" is conspicuously absent.
Why is this? Is it because those rights do not follow the general scheme of the Declaration:
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
If we go by this document, the US Constitution allows for the rule of law (if it existed in the US) as a buttress to the rights mentioned in the Bill of Rights, not arms.The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352
"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".
The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.
The essential characteristic of the rule of law are:
i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.
So, if one claims a right, one needs a source to back up that right and a legal basis for claiming that right. Not to mention for it to truly be effective, that right needs to be enforcable under the legal system.
If we are getting into the Second Amendment, post-Heller, federal and state courts have rejected Second Amendment challenges to a wide variety of firearms laws nationwide. As discussed in Section IV below, the majority of Second Amendment challenges have been raised in criminal cases. These challenges have been largely unsuccessful, as courts have found that the Second Amendment is consistent with numerous federal and state criminal laws. Since the Supreme Court’s Heller and McDonald decisions, the nation’s lower courts have been clogged with a substantial volume of Second Amendment litigation, despite the fact that most, if not all, federal, state and local firearms laws do not prevent a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense, and thus, would satisfy the Supreme Court’s holdings in those cases.
Thursday, November 4, 2010
Wednesday, June 17, 2009
Obama Speaks with Berlusconi
Real Clear Politics has the entire conversation between Obama and Berlusconi the other day. What made the most news in Italy was Premier Berlusconi's calling President Obama, "my friend." Some people felt it was yet another of the frequent gaffes he's often accused of. They couldn't resist revisiting the big faux pas of a few months ago in which Berlusconi said that Obama's got a good tan.
Part of the president's comments about the recent unrest in Iran caught my attention.
I wondered if he'd left something out. Why did Obama fail to mention the 2nd Amendment right to bear arms? After reading the comments and blogs of several pro-gun enthusiasts, I understood the 2nd Amendment rights to be on par with the rest, or according to some, even superior. How often have we heard it's the 2nd amendment that guards the 1st.
To me the reason for this omission is obvious. Only in the United States do these misconceptions about guns exist. When addressing the head of state of an ally country, when making comments that are directed at an international audience, it would be laughable to include the right to bear arms in a list of rights that constitute the democratic process. Laughable, I say.
What's your opinion? Do you think it could have been omitted for some other reason? If the Bill of Rights were written today, would the 2nd Amendment be included?
Please leave a comment.
Part of the president's comments about the recent unrest in Iran caught my attention.
Having said all that, I am deeply troubled by the violence that I've been seeing on television. I think that the democratic process -- free speech, the ability of people to peacefully dissent -- all those are universal values and need to be respected. And whenever I see violence perpetrated on people who are peacefully dissenting, and whenever the American people see that, I think they're, rightfully, troubled.
I wondered if he'd left something out. Why did Obama fail to mention the 2nd Amendment right to bear arms? After reading the comments and blogs of several pro-gun enthusiasts, I understood the 2nd Amendment rights to be on par with the rest, or according to some, even superior. How often have we heard it's the 2nd amendment that guards the 1st.
To me the reason for this omission is obvious. Only in the United States do these misconceptions about guns exist. When addressing the head of state of an ally country, when making comments that are directed at an international audience, it would be laughable to include the right to bear arms in a list of rights that constitute the democratic process. Laughable, I say.
What's your opinion? Do you think it could have been omitted for some other reason? If the Bill of Rights were written today, would the 2nd Amendment be included?
Please leave a comment.
Monday, December 15, 2008
The Bill of Rights
I learned on Answers.com that today is the day in 1791 that the Bill of Rights was ratified.
Why then is the 2nd Amendment spoken of with such reverence, as if it were an untouchable right, certainly not something up for interpretation or even discussion?
In 18th Century America weren't there a number of laws that have since been changed or actually repealed? Why would the 2nd Amendment be considered inviolate? Why do I so often here about the "Founders," as if that should lend weight or credibility? Aren't they the same guys who had slaves and denied women basic human rights? How does that work?
I'm sure these simple questions have been asked and answered, but indulge me if you would.
The Bill of Rights is commonly viewed as consisting of the first ten articles of Amendments to the Constitution of the United States of America. But it is the specific guarantees of individual liberties in the first eight amendments that the public normally regards as the Bill of Rights.It seems like I hear more about the 2nd Amendment than any of the others, of course that could be due to what I'm reading. The whole thing seems a bit antiquated to me, I must admit. Haven't many of these Amendments been variously interpreted through the years? There are ones about the nature of an accusation, about the “assistance of counsel” for the defense, the right to a trial by jury in civil cases, and the Amendment which protects individuals from punishments that are too harsh and fines and bail that are too high. Haven't these rights been treated in an extremely flexible manner throughout the centuries?
Why then is the 2nd Amendment spoken of with such reverence, as if it were an untouchable right, certainly not something up for interpretation or even discussion?
In 18th Century America weren't there a number of laws that have since been changed or actually repealed? Why would the 2nd Amendment be considered inviolate? Why do I so often here about the "Founders," as if that should lend weight or credibility? Aren't they the same guys who had slaves and denied women basic human rights? How does that work?
I'm sure these simple questions have been asked and answered, but indulge me if you would.
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