Chipping Away at the Bill of Rights

Courtroom Defense AttorneyYou no doubt have heard the cries of, “They’re taking away our freedoms!” by this or that politician or group. For years now, we’ve heard President Obama is coming for our guns, yet there has been absolutely no significant action taken by the Federal Government in pursuit of that goal.

The President can say he wants stricter gun control, but that is something easier said than done.

For starters, it’s the second amendment to the Constitution, and it is pretty clear. The right of the people to keep and bear arms shall not be infringed. There is also a clause there– the words, “well-regulated” are present. What exactly does well regulated mean? It certainly doesn’t mean, the government gets to have and hold all the guns till it deems the citizens need them.

Most people try to apply some common sense to that clause, meaning, I don’t think it’s a good idea for the average person to own a flame thrower, grenade launcher or RPG. There’s a point where you’re not talking about home defense. You’re talking about primarily offensive weapons of mass destruction, which require special training, handling and storage, that goes far beyond what an ordinary hand gun or rifle requires. And let’s face it, if you honestly believe you need an RPG for home defense, you might be living in the Gaza strip or Syria, not America.

But those who want more gun control need to hear what they’re saying, and be realistic about their goals, because once it’s okay to take away one constitutional protection, it’s only a matter of time before the others begin to fall.

Responsible gun owners are not criminals, nor should they be treated as such. They are protected by the second amendment. Responsible gun owners understand the ‘well-regulated’ clause is there to prevent a foreign government from setting up shop in the guise of a private citizen– arming private citizens with military grade weapons, and pretending to be just an ordinary citizen exercising their rights.

I certainly don’t want to lose my car because of irresponsible citizens who drive drunk and cause deaths. I will defend them in court to the best of my ability, and I want to be able to drive to the courthouse to do it.

In the same way, many folks, especially those who live in high crime areas, or a rural setting where police response times might be longer than we hope, don’t want to risk their entire family being murdered in a home invasion because the police didn’t arrive in time.  They deserve the right to be able to defend themselves. And the majority of police will agree. They will tell you, they cannot be everywhere at once. Citizens cannot count on them to arrive in the nick of time, every time, and save them.

And yes, I understand the abuse of gun ownership rights has resulted in tragedies like the one we have just witnessed in Charleston, SC. But that doesn’t mean an innocent family of four should be allowed to die with no chance to defend themselves in a home invasion, either.

Unless you think a policeman should be standing on every corner, on every floor of every building, stationed at every apartment complex, bank, school, church, mall, movie theater, and convenience store, there is no way to assure the safety of those who are the innocent victims of crime. And would you really want to live in a virtual police state like that? That’s hardly what the writers of the Constitution envisioned for America.

We have recently seen a level of zealousness and over-reach with regard to gun ownership, on both sides. There is no doubt we need to take a serious and well-considered look at how we observe the ‘well-regulated’ clause, but taking away the right to bear arms is an over simplification of a much larger issue. Yes, in a perfect world, there would be no guns and no need for them, but we don’t live in a perfect world. We live in a world full of crime, hate, racism and a host of other wrongs that occur every single day, despite the intentions, and efforts, of those trying to prevent them.

Most gun related crimes are not in fact committed with legally purchased and registered weapons. They are illegal guns, and no amount of laws can prevent people from obtaining illegal guns. Cities like Chicago, which has the toughest gun laws in the country, also have the highest rates of gun violence. Criminals, for the most part, do not buy weapons at Walmart. They get them from other criminals, and none of them will respect the new laws any more than the current ones.

It is the family of four who will pay the price.

More important still, by chipping away at a cherry picked selection of rights we have guaranteed by the Constitution, we collectively weaken all those rights. We have already seen official attacks on free speech, the ability to record police encounters and the right to assemble. We see the government being called into account for unwarranted surveillance, after broadly interpreting the NDAA as meaning, well, everyone is a potential terrorist. We see phone calls being tracked and monitored by government agencies without a shred of evidence to suggest a crime has been committed.  There are numerous instances of government over-reach in areas like property seizures, where the weakening of the right to a fair trial through forfeiture laws has resulted in the asset forfeiture of completely innocent people who in many cases, are never even brought to trial.

To this day, no one is completely certain what the Patriot Act actually means, and how it can be legally and constitutionally applied evenly in cases where someone is accused of ‘terrorist acts’. It doesn’t even clearly define what constitutes “terrorism”. Such vagaries very often lead to abuse of the law.

As a defense attorney, it bothers me because I know that even the slightest loss of the rights guaranteed in the Bill of Rights and the Constitution can have a profound, lasting effect in a court of law, that goes far beyond the original stated good intentions. It can ultimately lead to the proverbial slippery slope of losing all our freedoms.

No innocent, law abiding person should have their rights stripped to theoretically protect another who is not actually in a situation of a real and present danger. That is not justice. That is fear and paranoia.

 

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