Editor's Notebook

Last week, we started to take a brief look at how well the Bill of Rights has survived after nearly 216 years of massive change in this country.

We've gone from a rural agrarian society to an urban industrial society. Conditions that existed, and were important two centuries ago, don't exist at all today, and some things exist the founding fathers wouldn't have even dreamed of in their wildest imaginations. But still, the magnificent document they crafted has stood as one of the greatest political documents in the history of the world. It is a testament to the ability to craft law based on general long-range principles, rather than specific spur-of-the-moment issues.

How much of the Bill of Rights is still valid, however? How has it stood the test of time? Last week we looked at the crucial First Amendment. This week, we'll look at the next three amendments of the Constitution's first ten:

Amendment 2 - Right to Bear Arms.

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.

This is one of the most contentious amendments of all today, and invariably the argument boils down to people who remember only the first part (everything before the second comma), and those who remember only the second part.

This is the only amendment where the records of the debate of the Constitutional Convention delegates have been lost. We really don't know what they intended, although we can infer, from the known attitudes of some of the delegates, that they were terrified of a standing army and expected local militias to provide whatever "defense" of the country was needed -- largely against Indians (the original authorization for the U.S. Army provided for "23 officers and soldiers to guard the arsenal at West Point and defend the western frontiers"). Of course, we've always had an army, and it's gotten much, much bigger over the years. And anybody who thinks their .30-06 can stand up against an "invading" (or even domestic) modern armed forces is a dead man walking. It's silly to even make that argument.

But for a long time, this amendment really wasn't much of an issue in this country. It wasn't until the "Indian Threat" had been eliminated and we started to become an urban nation, that this amendment really became an issue. A hundred years ago, nobody even thought twice about it. Today, urban gangs often are better armed than the police, and violence due to firearms in this country is the highest in the world -- except of course for the Mideast (and even then, there's a couple places in this country where it's actually safer to be in Iraq).

Representatives of urban areas, where drive-by shootings and gang violence all too often dominate life in significant parts of the big cities, tend to see a greater need for gun control than representatives of rural areas (like Idaho) do. And let's face it, there are differences between Idaho and say, the inner city of Washington, D.C. Here, firearms are used primarily for sport -- target shooting or hunting. In D.C., they're used primarily to kill other people.

A long time ago, during the '60s, there was a story about one of the leaders of the Black Panther movement (a group that actually advocated the possibility of armed resistance to the government), who carried a shotgun into the visitor's gallery of the U.S. Capitol. When guards tried to take it away from him, he stood on his Second Amendment Right and argued that he had a valid hunting license. When the guards pointed out there weren't any deer or game birds in the Capitol, his answer was (according to the story) "so I'm a bad hunter." Today, of course, he wouldn't get within ten blocks of the capitol carrying a firearm in the open.

And frankly, I don't buy the argument that if everybody carried a gun we'd be a more polite society. I think we'd be much more violent (at least until all the violent people on both sides got killed off -- and a not insignificant number of innocent bystanders as well).

But the question is, do I think I have a right to own a firearm? I think I do (as long as I use it responsibly).

At the same time, regardless of where you stand on this issue, you have to agree that this Amendment has been seriously chipped away at. You can't own a tank or a machine gun (well, you can, but there's a LOT of paperwork involved).

In most states, you can't carry a concealed firearm without a permit.

You can't just go down and buy one on a moment's notice. There's a lot of paperwork involved, although it rarely seems to actually make a difference. The last time I bought a gun, and it may have changed since then, there was a line on the form asking me if I was a felon fleeing the law. I wonder how many people answered "yes"? If they did, they probably got the gun anyway.

So overall, the right to bear arms has become considerably circumscribed. There's an awful lot of this amendment that's been chipped away at over the years. Enough that I seriously doubt if the founding fathers would recognize it in light of how it's been interpreted and is being used today.

The Second Amendment has taken quite a few hits, and frankly, because of a large number of irresponsible sociopaths, it's on life support.

Let's move on to the Third Amendment:

Amendment 3 - Quartering of Soldiers.

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.

This was important in 1791. Less than 15 years earlier the British had tried to save money (and get some "local control") by arbitrarily ordering homeowners to provide food and shelter for troops, quartering them in private residences.

If there were a Constitutional Convention today, I doubt if anyone would even think about proposing it. When was the last time you heard anybody arguing over the Third Amendment? The conditions under which this amendment were considered important simply don't exist anymore. It's a nice right to have, but it's a null issue today. It's not dead, but it's in deep hibernation.

Moving on to the Fourth Amendment:

Amendment 4 -- Search and Seizure.

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.

For most of the history of this country the courts had tightened this amendment up considerably. It actually got stronger. For example, if the cops screwed this one up, prosecutors weren't allowed to use "the fruits of the forbidden tree" -- in effect, no matter how damning the evidence, if it had been obtained in violation of this amendment, they couldn't use it against you. It kept the authorities honest and above board.

Then came 9/11 and the Bush administration's Patriot Act. Combined with the Foreign Intelligence Secrets Act (FISA), Bush and Congress have made it really easy to sideslip this amendment these days.

For example, government agents, such as the FBI, can issue -- on their own, without prior approval from any court -- "national security letters" that let them seize documents and look at data most citizens would consider private. These letters prohibit, under the law, anyone who provides the material requested (they can't refuse without going to jail), from ever telling anyone about them. You can't even tell your lawyer if you're served with one or you can go to jail.

Government agents today can burglarize your home looking for evidence (theoretically, you won't even know they conducted a search there).

They can intercept your phone calls and e-mails and open your snail mail.

They can do all those things on their own authority, although eventually they do need to get permission (often after the fact) from a secret court (one that hasn't been known to say no very often).

And don't even get me started about what it's like to try and fly on a commercial airline these days. If you try and stand on your Fourth Amendment rights against unreasonable searches and seizures without a proper warrant issued by a court, you'll be walking, not flying (and if you throw a fit about it you can be arrested).

This amendment, thanks to the terrorists, President Bush, and Congress, isn't dead, but it's clearly on life support right now.

(Next week, a look at Amendments 5-10).