Interpreting the bill of rights

Last week I began a discussion of the Bill of Rights in the context of judicial interpretation, how those interpretations often create "new" law, and that both liberal and conservative justices are guilty of doing it. Today I continue that discussion.

AMENDMENT TWO

"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."

Of the first 10 amendments to the Constitution, no amendment has caused more controversy over the years than this one and the reason for that is in the reading of it. Its language is imprecise and its meaning uncertain, thereby allowing everyone to interpret it based on their own self-interests, rationality, irrationality, bias or prejudice.

Historically and presently, our interpretation takes two divergent paths. Those in favor of unlimited and unfettered gun ownership with no interference or monitoring by the government at all look only at the last portion of this amendment, "the right of the people to keep and bear arms, shall not be infringed" and ignore the first part; "a well regulated militia, being necessary to the security of a free state." Those who support some form of gun control focus on the entire amendment, arguing that the framers were guaranteeing only the right of the militia (the national guard and the reserves in the official carrying out of their duties) to keep and bear arms and not everyone who's old enough to buy a weapon. There have been court decisions on both sides of this issue and these decisions break predictably, based on the political bias of the court. Conservative judges tend to side with the first interpretation, liberal judges the second.

AMENDMENT FIVE

"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 offense 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."

This amendment is lengthy, so I'm only going to deal with the parts of it I've reproduced in bold type that leads most often to judicial interpretation. There are three separate issues here: The first has to do with what is commonly called double jeopardy which means one can't be tried for the same crime twice. Again, as stated in this column last week and directly contrary to the ambiguous meaning of the Second Amendment, this guarantee is stated clearly and unequivocally. But the courts have ruled that this part of the amendment addresses jurisdiction rather than the crime. In other words, if one commits a crime that is both a state crime and a federal crime, then that person can indeed be tried twice. The most striking example of this was the police officers involved in the Rodney King beating several years ago in Los Angeles. They were tried in state court for assault, among other charges, and were acquitted. This acquittal sparked one of the most violent and destructive riots we've ever witnessed in this country. Months later, they were retried in federal court for violating Rodney King's civil rights and were convicted and sentenced to prison. The charges were different but the crime was not. They were tried at the federal level for exactly the same offense they were tried for at the state level. Same crime, different jurisdictions, different results.

O.J. Simpson was tried and acquitted of murdering Nicole Brown Simpson and Ron Goldman in state court. He was later sued in civil court by the Goldman family for being responsible for the deaths of Simpson and Goldman, was convicted, and was ordered to pay a significant judgment to the plaintiffs, which he has so far not done. Same crime, different jurisdictions, different results.

The second provision in this Amendment that bears examining deals with what we call the protection against self-incrimination; commonly called "taking the fifth." It has long been a widely-held principle that a defendant cannot be compelled to testify against himself or herself in a court of law. The controversy here surrounds what is meant by the provision "shall not be compelled in any criminal case to be a witness against himself." Some jurists contend that this meaning is clear as well; that the framers meant exactly what they said. No one can be compelled to be a witness against himself. There is no mention in this amendment of testimony, either oral or otherwise. But the Supreme Court has "interpreted" this amendment to mean that one is only protected from providing oral testimony against oneself.

Many believe this narrow interpretation is in error. For example, appeals have been made claiming that a mandatory blood test or a mandatory blood alcohol test in conjunction with being charged with driving under the influence of alcohol or drugs is unconstitutional because the person, in essence, is being required to be a witness against himself. The court has steadfastly rejected this as a basis for overturning a conviction, even though the person is obviously being required "to be a witness against himself."

Finally, the third part of this amendment that requires examination says that no person "shall be deprived of life, liberty, or property, without due process of law" and yet, in Nebraska, someone who has attempted suicide or, in extreme cases, has even indicated they are contemplating suicide by words or actions, whether construed accurately or not, can be placed in protective custody by the police and shipped off to a mental health institution for observation and evaluation without due process of law, without the opportunity to present a defense or even secure the benefit of counsel.

And once you're held against your will in that institution, it is completely and totally up to the doctors there to determine when and if you are to be released. This situation is present and on-going because of court rulings that permit it, court rulings that are in clear violation of the Fifth Amendment to the Constitution.

This third part also impacts on one's rights in a DUI case as well. Appeal courts have determined that refusal to submit to a blood alcohol test or a blood test is a tacit admission of guilt which will result in loss of license as well as other penalties determined by the court, which many contend clearly violates the Fifth Amendment's "without due process of law" provision.

The interpretations of the second and third parts of this amendment I have noted in bold type are almost universally determined by "law and order" conservative judges.

Next week, I'll conclude this examination by taking a look at the sixth and eighth amendments to the Constitution.

*****

"My book of columns,, "Thoughts About Love: You Take My Breath Away," can be purchased at Accents Etc/The Book End, located at 307 Norris Ave, 308-345-4065, in downtown McCook.