The Bill of Rights is the first 10 amendments to the constitution. These were added as part of an agreement to affirm these rights made before some of the States would ratify the US Constitution. So while they were ratified a little later than the main body, they are an essential part of the original constitution.
An important concept to understand is that one of the arguments against adding the Bill of Rights is that adding them didn’t change anything. In other words, your rights would be exactly the same if the Bill of Rights was not added.
The main body of the constitution does not allow the feds to limit free speech, restrict the right to defend your life or property, or to violate due process. But some of the States were nervous that the feds would try to do some of that stuff anyway. Therefore, the Bill or Rights was added. Also, as sort of a triple redundancy, the 9th and 10th amendments restate the fact that the feds can only do the stuff specifically listed, and any rights not listed are still retained by the people.
Talk about paranoid! Lets go through an example, the right to bear arms.
- Not specified as being one of the things the fed can restrict.
- Under the 2nd amendment specifically listed as something that the feds cannot restrict.
- Under the 9th amendment the right of self defense is reaffirmed as a right that the feds cannot restrict.
- Under the 10th amendment, the right to keep and bear arms is not something the feds can restrict because its not listed as one of the things it can restrict.
This logic applies to all listed rights in the 1st through the 8th, and point 1,3 and 4 apply to all other rights not listed.
So the federal gun control act of 1968 violates the constitution in four different yet specific ways. Some estimates are that there are approximately 300,000 federal laws. Probably 60% to 90% are clearly and unambiguously unconstitutional.
Maybe we should pass the 28th amendment as “No, really, we actually mean it this time.”
Here is a shocking statement, “You have no federal constitutional rights.” The US constitution is an agreement between States and the federal government. It only tells the federal government what it is authorized to do, authorized by the States.
Negative Rights
When any human is created, they have all rights against other people interfering with their choices. These are called negative rights, because they are rights against interference. They give up some of these rights via a contract with the State via their State constitution. Some negative rights are unalienable, meaning that cannot be taken away without due process. So while a State constitution may list some negative rights, you have all unalienable rights whether they are listed or not. Example include the right to free speech, right to defense of your life or property and the right to not be imprisoned.
Positive Rights
Positive Rights are more complicated. Positive rights are what other must do for you. Some of these are created by natural law. One example of that is due process. Government cannot take what is yours without following established rules.
Other positive rights are obtained by contract. This is when someone else obligates themselves to you. For example State constitutions obligate the State to include trial by jury as part of due process.
You have a natural right of free speech and natural right to defend your life or property. You have a natural right to due process. You have a State constitutional right to keep and bear arms as one manner to protect your natural right to self defense, and you have a State constitutional right to trial by jury to protect your natural right to due process. You have no federal constitutional rights, you only have (empty) promises that the feds will not violate the natural rights and contract rights you already have with your State.
By understanding the Bill of Rights and its origins, we can better understand how rights work. Using this understanding, we can see where government has violated our rights and its contract. Using this understanding we can craft both State and Federal constitutions that will function better than our existing ones.
Of course, we are hoping to never have to use these new versions, because that would only happen if our Federal and State governments failed in the extreme.