Me: Both the words of the 2nd Amendment and Hamilton's argument for it, are so that militias can be raised in a hurry in lieu of a standing army.
"If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions."
- Hamilton, Federalist 29. 10th Jan 1788.
They: You don't know what you are talking about. The 2nd Amendment is about freedom. You should read what the founding fathers said.
If you hang around in political discussions on the internet for long enough and especially in discussions about US Politics, if you voice an opinion which differs from the assumed orthodoxy then you will very quickly be accused of not knowing what you are talking about; including if your opinion has been backed up with evidence. A common tactic used is that people will ask you to look to what the founding fathers said, or what the US Constitution says; even if you have actually quoted from the Constitution or the Federalist Papers or the Anti-Federalist Papers.
An appeal to authority is made all the more laughable when after having quoted the very thing that you've been asked to look at, you then get accused of not understanding the thing that you have just quoted or perhaps not understanding an ill defined concept of 'freedom'. What I find amusing is that a general appeal to authority might then be pivoted to some attack on the freedoms that someone else has, as though the United States is the freest country on earth.
I could critique the mechanics of the United States Constitution which I think is demonstrably ridiculous on multiple levels: from the vesting of the executive in the hands of one person, to the complete deadlock that happens when the two houses are opposed, to the stupidity of having the court as a political appointment; I could also point to the obvious that it has had to be changed on many occasions because it wasn't fit for purpose. Those things tacked onto the end are called Amendments for a reason.
I could go on and on. However this post is only going to look at the Ten Amendments to the United States Constitution, which are often treated as though they were handed down on two stone tablets by God himself. The amendments were only tacked onto the end of the Constitution as a concession so that some states would sign up to the new experiment. The truth is that both Madison and Hamilton were both horrified at the thought of there being a Bill of Rights. So much for what the founding fathers thought, I suppose.
There is a suggestion that don't have a Bill of Rights in Australia but this is either based in ignorance or deliberate stupidity. I mean that if you are deliberately blind and don't want to include the Bill of Rights Act 1688, the Scottish Claim of Right 1688, the Universal Declaration of Human Rights 1948, the International Convention on Political Rights 1951, and the Convention on the Rights Of The Child 1992, then we don't. I find the suggestion by people that we don't have a Bill of Rights in Australia really deliberately stupid.
The reason why the framers of the Australian Constitution didn't include a Bill of Rights is that they correctly assumed that rights would be subject to change and be expanded upon in a changing world. Those people lived through the invention of electricity and the beginning of gas and water being delivered directly to people's houses; so enumerating rights would have been an exercise in nonsense.
This post is a general response to the suggestion that we don't have rights in Australia when quite obviously we do; and of a more complex nature than just the ten that the people of the United States could come up with 229 years ago. This is a map of the current legal situation in my state of New South Wales, with respect to the Bill of Rights as enacted by Congress in 1791:
1st Amendment
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.
One of the benefits of starting a country later, is that you get to look at what everyone else has done and make improvements. Not only did we like the opening clause of the 1st Amendment, we clarified and expanded it. It doesn't give rise to a right though.
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
- Section 116, Australian Constitution (1900)
When it comes to the rest of this amendment, the right to Free Speech has been repeatedly confirmed by the courts and these are the two big landmark cases:
- James v Commonwealth (1936)
- Lange v Australian Broadcasting Corporation (1997)
James v Commonwealth 1936 deals with an entirely separate issue and Lange v Australian Broadcasting Corporation 1997 deals with the supposed limit to what kind of political communication can be made.
The thing to remember in a Westminster Political System is that the base assumption is that people are allowed to do whatever they like unless that is hedged in by law. James v Commonwealth stresses that 'free speech' is itself a vague concept and has to take its meaning from context and Lange v Australian Broadcasting Corporation says that unless there are other torts such as defamation or incitement to violence, then political communication is fine. That right to political communication is even broader than merely the freedom of the press because it doesn't just protect the press as a privileged class.
Both of these cases in the High Court of Australia already assume that the right to free speech exists and so they don't act as a wellspring but rather, as confirmation of a thing which always was.
As for the right to petition the Government for a redress of grievances, well we already had that.
http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s5.html
Right to petition
That it is the right of the subjects to petition the King and all commitments and prosecutions for such petitioning are illegal.
- Section 5, Bill of Rights Act (1688)
"the King" at Common Law in England and by extension the United Kingdom, her colonies, later the Empire and her Dominions, is interchangable in a lot of cases with the Corporation Sole of "The Crown". Petitioning the Government for a redress of grievances existed before the invention of the United States.
2nd Amendment
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.
http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s7.html
Subjects' arms
That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.
- Section 7, Bill of Rights Act (1688)
Probably the most pointed taunt that Americans will have against the right to bear arms in Australia is the ban on automatic weapons which into law after the Port Arthur massacre. I will stress here that this didn't actually remove a right, it merely defined that there was a limit of what was acceptable.
The section in the 1688 Bill of Rights contains the phrase 'suitable to their conditions' and the original words of the text to the 2nd Amendment stated 'a well regulated militia, being necessary to the security of a free state'; both of which acknowledge that the right should be tempered with sensibility.
As it stands, the current working operation of the 2nd Amendment only reads 'The right of the people to keep and bear arms... XXXXX ... shall not be infringed'. as the result of Heller v DC (2008) effectively striking out the rest of the words of the text.
I will concede that we don't have an absolute and unlimited right to bear arms in Australia but this is because we're sensible. Nobody should have that right and the only reason that anyone would actually want such a thing is because they want to be deliberately stupid. The preamble to the United States Constitution says that some of the aims of the document are 'in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty' and the truth is that an armed militant population does none of those things.
3rd Amendment
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.
https://avalon.law.yale.edu/18th_century/quartering_act_1774.asp
That, in such cases, it shall and may be lawful for the persons who now are, or may be hereafter, authorised be law, in any of the provinces within his Majesty’s dominions in North America, and they are hereby respectively authorised, impowered, and directed, on the requisition of the officer who, for the time being, has the command of his Majesty’s forces in North America, to cause any officers or soldiers in his Majesty’s service to be quartered and billetted in such manner as is now directed by law, where no barracks are provided by the colonies.
- Clause 1, Quartering Act (1774)
Neither the Quartering Act 1765 or the Quartering Act 1774 had any force outside of North America. These acts have never been in operational in Australia. The 3rd Amendment also doesn't give rise to a right.
This amendment is so pointlessly redundant that no cases have ever been brought to the United States Supreme Court. Either that means that the law was perfect which might be likely, or it was so unbelievably stupid as to be utterly useless in its operation (which I think has been proven by 229 years of evidence); or both.
4th Amendment
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.
If the base assumption is that you are free to do whatever you like unless that is hedged in by law, then this whole thing is redundant. 'The right to be left alone' and 'the right to quiet enjoyment of one's property' are both rights which have been proven to exist at law in Australia but which would have never have been thought of in the United States.
Moreover those clauses about needing a warrant, don't really define a right but rather they define a set of limits which are placed upon the officers and administrators of the law. Even so, the current version of the Search Warrants Act in NSW hedges in the common law powers of the officers of the law anyway.
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/repealed_act/swa1985175/
Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing is abolished.
- Section 24, Search Warrants Act (1985)
5th Amendment
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 offence 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.
Broadly speaking, under Australian law if you believe you are a suspect in the commission of a crime, then you have a right to refrain from answering any questions surrounding the alleged offence. While we don't have the reminder that someone has a right to remain silent, Australian law protects an accused person in court from any inference that exercising their right to silence is an admission of guilt. In most situations, this means that a jury would need to determine the innocence or guilt of a party from the facts of the case. If someone chooses to exercise their right to silence, then it is incumbent on the presiding judge to direct the jury that they can not interpret that silence as an admission of guilt.
http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s128.html
128 Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness--
(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or
(b) is liable to a civil penalty.
- Section 128, Evidence Act (1995)
The common law privilege against self-incrimination entitles a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. Although broadly referred to as the privilege against self-incrimination, the concept encompasses three distinct privileges: a privilege against self-incrimination in criminal matters; a privilege against self-exposure to a civil or administrative penalty (including any monetary penalty which might be imposed by a court or an administrative authority, but excluding private civil proceedings for damages); and a privilege against self-exposure to the forfeiture of an existing right (which is less commonly invoked).
Section 128(1) of the uniform Evidence Acts applies where a witness objects to giving particular evidence that ‘may tend to prove’ that the witness has committed an offence under Australian or foreign law, or is liable to a civil penalty. Under Section 128(2):
Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:
(a) that he or she need not give the evidence; and
(b) that, if he or she gives the evidence, the court will give a certificate under this section; and
(c) of the effect of such a certificate.
6th Amendment
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
I would have said that this was a good idea that Australian borrowed from the US Constitution and incorporated as Section 80 of our own:
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s80.html
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
- Section 80, Australian Constitution (1900)
Except:
http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
- Clause 39, Magna Carta (1215)
This means that effectively, the right existed in England 576 years before the US Constitution adopted it. Relative to us, that still the equivalent of a right existing not quite two hundred years before any English people had ever set foot in America.
7th Amendment
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 re-examined in any court of the United States, than according to the rules of the common law.
I suspect that the 7th Amendment was supposed to codify the right to a jury trial in some civil cases and then prevent judges from overturning a jury's findings of fact. It looks like a concession to the Anti-Federalists to get them on board with the whole federal project. At any rate, we already had that 'right'.
http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s11.html
Juries
That jurors ought to be duly empannelled and returned.
- Section 11, Bill of Rights Act (1688)
8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This right already existed almost word for word across the British Empire 103 years earlier.
http://classic.austlii.edu.au/au/legis/act/consol_act/bor16881wams2c2306/s10.html
Excessive bail
That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted.
- Section 10, Bill of Rights Act (1688)
Really? I could have done this with Ctrl-X and Ctrl-V.
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The thing to remember in a Westminster Political System is that the base assumption is that people are allowed to do whatever they like unless that is hedged in by law. If this is a declaration that there are additional fundamental rights that exist outside the Constitution, then it means to say that the rights enumerated in the Constitution are not an explicit and exhaustive list of individual rights. This is exactly the reason why the framers of the Australian Constition were so anxious not to include a Bill of Rights. They didn't want Australians to be blinkered like a horse, who was blind to what else they could see.
Yet again, if the base assumption is that people have the right to do whatever they like unless that is hedged in by law, then although it is helpful to write that down, it doesn't really achieve very much. The mere existence of a catch all right is made to look all the more ridiculous when you consider that several other amendments which have come afterwards, kind of demonstrate that this was an internal lie.
10th Amendment
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.
I guess that this was included to reinforce the principles of separation of powers and federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people?
Was it actually true? The right to vote, the right not to be held in servitude and slavery, the right to adequate education, the right to adequate health care and so on, have either had to be added or are still being contested in the United States. If you have had to add rights, they can't very well be assumed to have already been had by the people, can they?
Conclusion:
Of the ten Amendments that make up the Bill of Rights, the most generous reading would suggest that there's only seven actual rights enumerated, one amendment to cover an act which was never applicable in Australia and two amendments which are so redundant in the conception of rights that they have never needed to be spelled out in Australia.
Apart from the 3rd Amendment which is conspicuous in not actually being a right, Australians have all of the rights contained in the United States Constitution and depending on what your general theory of rights is, had all of them before there ever was a United States.
As for the accusation that I don't know what I am talking about, then that accusation is demonstrably false - Quod Erat Demonstratum.
Not to put to fine a point on it but the original sin of the United States and one of the reasons why the so-called 'Intolerable Acts' was passed was to do with the issue of slavery; which was solved at common law in the British Empire with Somerset v Stewart (1772) and Knight v Wedderburn (1777). Had the United States not fought so desperately for its right to retain slaves, then the Slave Trade Act (1807) and the Slavery Abolition Act (1833) would have applied; and the US Civil War would never have happened.
Meanwhile, the other more important rights such as the right to life, the right to be left alone, the right to be safe in one's community, the right to decent health care, the right to a decent education, the right not to be shot or raped, the right to be treated the same as other people by officers of the law &c. are not at all in the United States Constitution.
All of the movements like #BlackLivesMatter and #MeToo are really just repackaged requests for the same rights which already aught to be in existence. It speaks volumes about a country which started out with the self-evident truth that all men are created equal and has then spent its entire existence proving that not only is that a lie but that life, liberty and happiness are cheap.
I find it ridiculous to be told that I somehow have less freedom or that I don't understand the United States Constitution, when as someone who has been around the law for more than 20 years, I think that I have a pretty good handle on it; especially when I can readily map it to the law which exists in my country.
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