The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
The right to petition government for redress of grievances[432]
is essentially the right of freedom of speech in a particular
way. The right to keep and bear arms is essentially the right to
self-protection, but this right may not be abused with impunity; it
does not empower any person to take the law into his own hands, or
to carry weapons.[433] Carrying concealed weapons is not an exercise
of the right to bear arms, unless in the performance of a function,
the execution of an office, in which case such carrying is permitted
(licensed) by the State. Essentially the right to bear arms is akin to
the right to revolution as set forth in the Declaration of Independence.
The person, his or her papers and dwelling are exempt from
unwarrantable searches, seizure, or invasion. The exemption here goes
to the fundamental supremacy of the civil over the military authority.
A warrantable search is lawful because the sovereign—the State or the
United States—has the primary right of self-protection, safety, peace,
good order,—indeed, the right to realize the essential purposes and
ends of sovereignty. But the boundary between private right and public
necessity (another expression for sovereignty) must be drawn with
precision. The language of the Fourth Amendment is explicit.[434]
154. The first ten amendments prohibit the United States from violating
the fundamental rights of persons; they are a protection against
federal tyranny. The Thirteenth and Fourteenth Amendments prohibit the
States from violating certain fundamental rights of persons. Any one
comparing the Fifth and the Fourteenth Amendments discovers the same
language as to “due process of law” and “life, liberty, and property.”
The State constitutions protect persons in like manner. Thus the
fundamental right prevails in both jurisdictions,—that of the State and
that of the United States.
The Fifth Amendment does not exempt a person from presentment or
indictment, or trial, but recognizes his fundamental right to
protection by due process of law.[435]
The protection of the person is of his life, liberty, and property—his
rights to either of which are fundamental. Yet his life may be taken in
defense of the State, or of the United States; he may be deprived of
his liberty,—civil, political, or natural,—for cause, and his property
may be confiscated to the State, or to the United States, for like
reason. This apparent conflict between theory and fact is in no sense a
violation of the fundamental right of the person thus affected. He is
entitled to his fundamental rights; so are the several States and the
United States entitled to their respective fundamental rights: but they
are sovereignties; the person is not, and his fundamental rights to
life, liberty, and property give place to the rights of the sovereign.
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