What is the purpose of the Bill of Rights?

[usmarine0352_2005]

.

I've heard two very different opinions recently on the Bill of Rights and and I was wondering what your opinion on what the BOR is for.




Here are the two opinions:





1.) The Bill of Rights (Amendments 1 - 10) is designed to limit the federal government's powers, not those of the states.




2.) The Bill of Rights is designed to protect certain rights of the people.







So what do you believe the purpose of the Bill of Rights is?


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[jonnyc]

A. The Constitution limits federal powers.
2. The BOR acknowledges certain rights that American citizens are believed to have, and cannot be violated by federal, state, or local govt.
III. The "original purpose" of the BOR was as an addition to the Constitution to ensure ratification by the states.

 

[Owen Sparks]

It is a list of things that the government is supposed to have no power over. It has been circumvented in some ways, especially the 2nd, 4th and 10th Amendments.

 

[ConstitutionCowboy]

Actually, the "Bill of Rights" protects ALL the rights of the people. Some are enumerated and all the rest are covered by the Ninth Amendment.

Woody

 

[daorhgih]

" ... Men ..."

"... are endowed (cannot be taken- or modified-away) by their Creator with definite (certain & sure) Rights ..." You may define your own "Creator", but do NOT attempt to un-define MINE out of existence, or I will un-define you as needless garbage. The Supreme Law of this land is determined by those "Men" & NOT by any SCOTUS. WE are those Men. Dao

 

[brickeyee]

are endowed (cannot be taken- or modified-away) by their Creator with definite (certain & sure) Rights

While the Declaration of Independence expresses thoughts prevalent at the time, it does not have any legal standing besides being a historical reference.

 

[Loosedhorse]

The very First Amendment answers the question: "Congress shall pass no law..." Not state governments shall pass no law. The Constitution is a federal charter. Of course, I think that all concerned would have expected states to enact their own protections for free speech, etc.

Of course, the 14A changed that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." If the writers of 14A had felt that protection from state law was already incorporated into the Bill of Rights, then there would have been no reason for them to include that clause in 14A.

 

[gc70]

As johnnyc noted, the purpose of the Bill of Rights was to help get the Constitution ratified.

The Bill of Rights was originally designed to protect individual rights by limiting the federal government's powers. That changed with incorporation under the 14th Amendment and the Bill of Rights now largely applies to all levels of government.

Like all constitutions, the United States Constitution and its amendments were written to apply to the government it created, unless otherwise specifically stated. That concept is demonstrated in Article I of the Constitution:

Section 9 applies to the federal government when it uses general language to state:

"No Bill of Attainder or ex post facto Law shall be passed"​

Section 10 applies specifically to the States when it states:

"No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts"​

Some argue that the provisions of the Constitution were written to generally apply to both the federal and state governments. To accept that argument, one must believe that the Founding Fathers were stupidly redundant in writing the clauses dealing with Bills of Attainder and ex post facto laws. I choose to believe that the Founding Fathers were smarter than that.

 

[stumpers]

The Constitution gives the federal/national government power.

The Bill of Rights are expressed rights the citizens have against government. These are powers denied the government.

Much of the Bill of Rights has been applied to the states through the 'Due Process Clause' of the 14th Amendment, so the BOR has become a limit on state governments as well as the federal government.

 

[Carl N. Brown]

The Bill of Rights were Amendments to the Constitution which was orginally intended to define the Powers and Authorities of the federal government: Congress, the President and the Supreme Court.

Since by definition the Constitution (until the 14th Amendment) dealt only with the Powers and Authorities of the United States it and the Amendments including the BoR were limited to the United States (federal government).

The BoR was to appease the antiFederalists who feared that the federal government could infringe on the commonlaw rights of the citizens. Neither the Federalists nor the antiFederalists thought that the States would infringe the rights of the citizens. (Trusting souls, weren't they both?) In fact the Federalists did not believe the United States would infringe the rights of the citizens, but went along with the BoR to mollify the antiFederalists and get them to sign off on the Constitution.

 

[daorhgih]

Defined.

You will rise or fall depending upon your definition of " Creator." If One is, then It limits both you, me, and government. Instituted among men, and drawing their just (righteous -- there's that Creator again) power from the consent of all who are governed by them, is a pretty good deal. Sounds fair to me. Dao.

 

[Horny Toad]

Interesting explanation at the link in my signature.

 

[cbrgator]

The answer to the OP's question is BOTH.

 

[ConstitutionCowboy]

If the writers of 14A had felt that protection from state law was already incorporated into the Bill of Rights, then there would have been no reason for them to include that clause in 14A.

[Speculation]

Eh ... The Supreme Court at the time could have accomplished all the 14th Amendment did for our rights had the proper cases been brought to it.

Amending the Constitution at the time might have been easier, too. Sections 2, 3, 4, and 5 probably were the the bait needed to pass that which is in Section 1. I doubt an amendment including only Section 1 would have passed, even if it included something like what is in Section 5.​

[/speculation]

Woody

 

[k-frame]

Horny Toad thank you for that link. It's a very good piece on the 2nd Amendment and the Founders' philosophy and strategy.

 

[Carl N. Brown]

Our state constitution has a RKBA that explicitly protects keeping and bearing arms for self defense and militia service. State court rulings and attorney general opinions have stated that the particular protection of self-defense and militia service does not unprotect the other traditional, lawful reasons to own or use firearms, including hunting and protecting livestock from predators.

Even if you took the militia clause in the 2A as a limitation rather than as an example of why the right of the people to keep and bear arms should not be infringed, that would not mean that banning all non-militia keeping and bearing of arms would be justified or even necessary. The burden would and should be on the banners to show that the benefits of the law exceeded the costs. I agree with Don B. Kates that there is a lot of evidence to support the idea that a ban on private guns would be met with massive civil disobedience not seen in this country since the prohibition of alcohol in the 1920s, with similar destruction of common respect for law and order.

 

[ConstitutionCowboy]

Even if you took the militia clause in the 2A as a limitation rather than as an example of why the right of the people to keep and bear arms should not be infringed, that would not mean that banning all non-militia keeping and bearing of arms would be justified or even necessary. The burden would and should be on the banners to show that the benefits of the law exceeded the costs.

If the militia clause specified what sort of arms were to be used by the militia, then the operative clause could be construed to be limited to the militia and those specified militia arms, but such is not the case. Regardless of whatever "benefit" the banners can conjure, it makes no difference to the prohibition. Some sort of exception(s) to the prohibition in the Second Amendment would have to be made via a subsequent amendment for any ban or limit of any arms to exist.

Woody

 

[Art Eatman]

The Preamble to the Bill of Rights states the purpose of them. Basically, it states that the purpose is to prevent abuse of power by the central government.

Most anti-2A folks don't think that any power exercised by the central government is abusive, unless it affects the First Amendment.

It sez in my "Citizen's Rule Book":

"PREAMBLE

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficient ends of its institution."

The facsimile documents on the wall of the main U. S. post office in Thomasville, Georgia, have the same text.

 

[jonnyc]

Damn, as a teacher of High School "Civics", I am exceedingly proud of the membership of Gunboards, and especially the postings on this thread. I kept my initial response rather limited, but the depth of the above postings is overwhelming and gratifying.

 

[mortablunt]

I take it as being there to protect the rights of the people, unless you are the ALCU, in which case, it is a collective militia right about the National Guard, which wouldn't exist for more than a century.

 

[azmjs]

It's there so the ACLU and the NRA can sue the government

 

[Fred Fuller]

I'd think some reading of John Locke's influence on the Founders might be helpful in understanding how the rights enumerated (which is to say, listed but not protected, IMHO) in the BOR came about. Try http://www.thefreemanonline.org/featured/john-locke-natural-rights-to-life-liberty-and-property/ to begin with.

lpl

 

[Owen Sparks]

Locke’s conclusion was that life, liberty and property were natural rights that did not come from the state and government role should be limited to protecting these rights.

 

[TexasBill]

Both of the OP's choices are valid, though there is some limitation on the states, as well.

The "militia" clause of the Second Amendment is simply a rationale for the restrictions on the government's ability to infringe on the people's right to keep and bear arms. The Second Amendment does not confer a right; it confirms a pre-existing right. I don't know whether or not the "Bill" in the Backwoods Home Magazine is a real person, but a simpler explanation would be a lesson in grammar. The first clause of the Second Amendment is a dependent clause, requiring the second part to be true in order for it to be true. A militia is impossible unless the people have arms.

 

[Neverwinter]

John Locke's influence on the founders is more than enough evidence that the Bill of Rights was not meant to imply absolute freedom.