Updated December 16, 2009
On this 218th ratification anniversary of the U.S. Bill of Rights, the first ten amendments to our Constitution, here are some thoughts on the novel development in America of limits upon government authority, especially legislative authority.
The English Bill of Rights had already established the concept of limits upon executive authority, but not upon the legislative branch specifically or the government as a whole. It took the American Revolution to bring about declarations of rights with the intent of restrictions on legislative supremacy and the government in general. The people in seven of the original 13 states plus Vermont developed declarations of rights to their state constitutions during the contest with Great Britain. These declarations contained lists of the republican principles and unalienable, fundamental rights that our forefathers understood their new free governments to be founded upon, without which they could not long exist, and to which they were expected to conform.
After defending their newly established state governments united under the defensively oriented Articles of Confederation, a new Constitution was formed in the summer of 1787 by the Federal Convention in Philadelphia. Americans should ever be grateful that the vast majority of those present at the convention rejected George Mason's suggestion for a committee to draw up a bill of rights. Such a bill of rights would have been developed behind closed doors without extensive public discussion of its purpose and meaning. Such an action would have resulted in every aspect of every protection it contained being subject to never-ending dispute as to whether or not it was intended to limit legislative authority and to what extent.
As a result of that refusal, a major political dispute erupted during ratification over the need for a bill of rights as part of the proposed U.S. Constitution. Extensive arguments concerning that subject and the sources and purposes for such a bill of rights appeared in the newspapers, pamphlets, broadsides, and private correspondence of the period. This public dispute divided the country, producing Federalist opponents and Antifederalist proponents for a list of fundamental, inalienable rights to be constitutionally protected as part of the new form of government. The bill of rights dispute was divisive and intense, almost resulting in defeat of the proffered form of government. Early on, Federalists summarily rejected bill of rights proposals in Pennsylvania, Massachusetts, and Maryland, states where the argument was raised and they were in the majority.
In later conventions the Antifederalists prevailed in their arguments for bill of rights protections as proposed amendments to the Constitution. The acceptance of such proposals to guarantee each citizen's right to keep arms, freedom of religion, and prevent all peacetime quartering of soldiers without owner's consent in New Hampshire's convention brought about acceptance by the ninth state and a certainty that the Constitution would be carried into effect. However, this fact was unknown in the Virginia Ratifying Convention. There, in order to assure ratification by at least nine states, the Federalists, led by James Madison, agreed to pass a bill of rights and extensive list of other proposed amendments on to Congress for its consideration in order to achieve ratification. Madison promised to subsequently support the bill of rights proposals he understood as relating to individual rights, including the right of the people to keep and bear arms, and he carried out that promise after being elected to the House of Representatives in 1789.
While the intent and extent of bill of rights provisions, especially the Second Amendment, are often called into question in spite of the open public debate about the bill of rights during ratification, at least there is extensive documentation of the arguments and actions that led to development and adoption of the bill of rights provisions. It is most unfortunate that those who engage in modern discussion concerning such provisions are often completely unfamiliar with the period sources.
If the past is any guide to the future, that Americans will freely enjoy the rights protected by the U.S. Bill of Rights is seriously in doubt unless they remain eternally vigilant. In the case of the Second Amendment, the right to keep and bear arms has not only been violated and ignored, but its purpose actually denied by those interested more in control than liberty. There is little doubt that almost every provision of the Bill of Rights (with the possible exception of the Third Amendment) has either been openly violated or the intent evaded by subterfuge at one time or another.
The refuge for expectation that Americans will enjoy in the future those rights that their ancestors bled and died to pass on to them, protected in a Bill of Rights as part of the supreme law of the land, is a clear understanding of those rights, the resolve to insist that they be observed in every instance, and the ability to defend them in the last resort if all three branches of government basely neglect their primary duty as stated in the oath of office - to uphold the Constitution.