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August 2017 Brief: Volume 24, Number 22

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A Commentary on the Bill of Rights


by Imitatus Publius



Never forget that the express purpose of the Bill of Rights was to purposefully restrain all government in general and the central government in particular. This restraint was to apply with complete regard to the rights and liberties of the sovereign citizen and of the Several Sovereign States with regard to their respective relationships to the National Government. At this point it is necessary to note the acute distinction that exists between the national central government, which is managed by Congress, and any other government, be it state, county, or municipal.


The First Amendment, as is each of the other nine amendments of the Bill of Rights, was intended to be a proscription on, and only on, Congress. And hence, because only Congress can enact civil statute (“laws”), it also serves as a proscription on the entire national central government – the executive and judicial branches included. It was not intended as a proscription on the Several States or any other government. The Several States were to remain unimpeded in this matter; free to exercise their powers as best suited the citizens thereof.


The recorded history of that period concerning the Several States and the citizens thereof would seem to indicate that they surely believed this to be the case. Just because we do not function in this manner today does not negate what once was. Was it the people of that period, those who wrote The Constitution and the Bill of Rights along with the majority who voted to ratify and implement the same, who were not in conformity with the documents they had only recently drafted and ratified; or is it us, who fail to understand and conform to those documents? This is a question worthy of national debate.


You will recall that both Clauses 15, and 16, of Article I, Section 8, deal with the subject of the militia. They begin with these phrases. “To provide for calling forth the militia...” and, “To provide for organizing, arming, and disciplining...” You will again notice they made no mention of creating or even authorizing a militia. The militia was already in existence, and it was taken for granted it would forever remain in existence. It was the militia that originally procured our liberties. It was already in existence before our National Government was even formed; and consequently, it neither owed its existence to the National government nor needed its blessing in the Second Amendment to continue to exist.


When our Founders spoke of militia, they were referring to persons banded together for the legitimate purpose of maintaining security and liberty. They were not condoning bands of thugs, street gangs, and outlaws who, through unlawful acts, diminish our security and liberty. In fact, the militia was to be used to defend against such internal threats as these. Our Founders considered the use of the militia legitimate for many purposes, both internal and external. We all understand the use of militia for external threat; but their acknowledgment of its use for internal threat may well surprise the Twentieth Century citizen – for they readily acknowledged as legitimate, the use of militia as a remedy against the usurpation of government itself, both State and Federal.


The basic right granted to the people is to be secure against the searches and seizures carried out by agents of government. A search or seizure may legitimately take place only upon issue of a warrant. A warrant is a legal instrument issued by a judge or magistrate providing written authorization for an officer of government to act. When taken together, and if honored by the agency of government, the Fourth Amendment is a powerful safeguard of our liberty. However, when our Founders’ intent for this amendment is ignored or distorted, as I fear it too often is, it can leave us quite vulnerable to overly aggressive agents of government.


Amendment V establishes another protection from government that is fast escaping our grasp. The provision of the grand jury was yet another attempt by our Founders to insulate us from an over-reaching government. It is comprised of a group of private citizens from the jurisdiction in which the capital crime or infamous offense took place. This jury does not judge the law under which the offender is charged, or his guilt or innocence. They do determine whether it is a legitimate charge that has been presented and whether there is enough evidence to support that charge. It is their duty to be a buffer between the citizen and the government, to prevent the government from prosecuting citizens other than for offenses against the legitimate law of the land.


Thomas Jefferson, the man who was to become the third President of the United States, penned these words in the year of 1879 to Thomas Paine: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” The only possible way Mr. Jefferson’s statement could be true is if he considered it to be within the purview of the jury to pass judgment on the “laws” and policies, which were implemented by government, and then all must respect the jury’s judgment. That includes the government itself. First mentioned in Article III, Section 2, and then again in Amendment VI, this third explicit provision for a trial by jury should convince even the greatest skeptic that the imbedding of this hallowed principle of trial by jury in our founding documents was no mean fluke. Our Founders understood completely the importance of a trial by jury. It was, and still is, the final safeguard of our liberties from an oppressive government short of the call to arms.


The foundation for our laws that was established by our Founders was, “the Laws of Nature and Nature’s God.” The laws that we enact which are grounded on this basis are lawful. The statutes that we enact that are not grounded on this basis are merely legal. That is, they are offenses against the state. Laws that are based on the laws of nature are immutable – they are constant, permanent and unchanging. Statutes that “are not” are transitory. They can be one thing today and another tomorrow. And they can be anything that suits the state’s fancy at the moment. This state of affairs places our liberty in a very precarious position. We are at the tender mercies of our elected officials who, after all, are like us... mere mortals. This is not a very comforting thought for some of us.


Public Interest Institute’s POLICY STUDY, A Commentary on the Bill of Rights, can be viewed at


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