Merry Bill of Rights Day
by Linn and Ari Armstrong
The following article was originally published by Grand Junction Free Press on November 28, 2005.
We just celebrated one major American holiday and now look forward to Christmas and Hanukkah. But don't forget December's other crucial day of remembrance: Bill of Rights Day, December 15.
In our next column, we'll preview local celebrations of that pivotal moment in our nation's history and discuss ways you and your family can get involved. Here we want to talk about three current debates in Colorado that concern the Bill of Rights: campaign speech, eminent domain, and Denver's gun ordinances.
"Congress shall make no law... abridging the freedom of speech," the First Amendment declares. Unfortunately, Congress did precisely what the First Amendment says it can't do by passing laws that restrict speech about campaigns.
The general view, though one open to debate and different interpretations, is that the Fourteenth Amendment applies the U.S. Bill of Rights to state governments. So, under U.S. law, state governments cannot abridge the freedom of speech, either.
Regardless, Colorado's Constitution has its own Bill of Rights. Article II, Section 10 states, "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject," though libel is legally actionable.
Unfortunately, in 2002, Colorado voters approved Amendment 27, which added a new section to the state's constitution restricting campaign speech and subjecting it to red tape. However, that measure did not stop a handful of big-money Democrats from buying the legislature for their party. Generally, campaign restrictions are counterproductive, as the big-moneyed interests can afford the legal power to find the loopholes, whereas the common person is bound up in the added bureaucracy.
Meanwhile, newspapers such as The Denver Post remain free to use their vast resources to, for example, propagandize in favor of Referendum C. Newspapers should be free to spend their resources the way they want -- but so should the rest of us.
Before this month's election, supporters of Ref. C took the Independence Institute to court over the organization's educational ads. Since nobody took the leftist nonprofits who supported Ref. C to court, one might conclude that the legal challenge was merely harassment. But, as the Institute's President Jon Caldara pointed out in a recent column, the courts sided with his organization. Caldara declared it a victory for the First Amendment.
The second major issue involves eminent domain, the taking of private property via the government. Colorado Citizens for Property Rights (CCPR) plans to place a measure on next year's ballot restricting the power.
The Fifth Amendment concludes, "nor shall private property be taken for public use without just compensation."
Colorado's Constitution allows eminent domain only for truly public use and for very limited private uses, such as "for private ways of necessity." However, members of CCPR have argued that, in practice, eminent domain here has expanded far beyond any proper boundary and has become a tool of private developers to take land from unwilling sellers.
The third discussion is about the right to keep and bear arms. The Second Amendment declares, "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."
Colorado's Bill of Rights states, "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons."
On November 14, attorney Stephen Halbrook defended the individual-rights view of the Second Amendment while speaking at the University of Denver. Halbrook, author of That Every Man Be Armed, will argue next month in front of the state's Supreme Court that Denver gun ordinances violate state law.
Halbrook said that Denver ordinances that banned arbitrarily defined "assault weapons" clearly "called into question" the individual's right to keep and bear arms. Halbrook argued this issue years ago, but more recently the state legislature passed "preemption" bills to limit the ability of cities to restrict gun ownership.
Moreover, Halbrook said, Denver's ordinances are particularly intrusive because they restrict what a person can do within the privacy of his or her own home. Some people want to respect your privacy in your own home when it comes to sex with consenting adults, but not when it comes to handling your guns.
By the way, Halbrook's complete talk is available as an mp3 audio recording at www.FreeColorado.com.
The written Constitution and its Bill of Rights are among our nation's most important contributions to human liberty and the well-being of American citizens. The Bill of Rights properly recognizes that human achievement and reason require a legal order that, above all, respects and protects individual rights.