By Chris Combs
January 3, 2012
“Conservatives see the contradictions in liberal-progressive ideology, yet don’t always do a good job of putting it all together. Putting it all together so we can save the Bill of Rights is what this book is about.”—Frank Miniter, Saving the Bill of Rights
Several years ago, in the basement archives of a small Wyoming newspaper, there hung a 100-lb leather punching bag. During after hours, Frank Miniter, then in his early 20s, would strap on a pair of gloves and work the bag with skilled precision. Professionally trained by heavy-weight champion Floyd Patterson, Miniter approached the sport with pronounced reverence and skill.
The boxing bag, a “heavy bag” to the knowing, was one of the few luxury items Miniter brought to Wyoming. Hailing from upstate New York, Miniter came to the rugged plains of the Rocky Mountains to pursue his dream of becoming an outdoor writer. Though hired as a photographer, he soon developed and began writing a weekly outdoor feature. He befriended local outdoor enthusiasts, learned the art of fly-fishing, partook in numerous hunting excursions, and seized any opportunity that came his way. Like boxing beforehand, Miniter undertook outdoor writing with the thirst of a hungry student and the gumption of seasoned fighter.
“When you throw a punch, you put your whole body into it,” he once told me.
Minter went on to become a Senior Editor at Outdoor Life magazine and author of the book, The Politically Incorrect Guide to Hunting. His thirst for adventure took him all over the world. He floated the Amazon. He hunted bear in Russia. He tracked elk with the Apache. He even found time to run with the bulls of Pamplona, an event he vividly describes in his best-selling book, The Ultimate Man’s Survival Guide. “Knowledge instills confidence. Through understanding comes self-reliance,” he wrote of the experience. “I steadied myself with the knowledge of what had to be done to survive… And that assuredness comes from edification.”
In his new book, Saving the Bill of Rights: Exposing the Left’s Campaign to Destroy American Exceptionalism, Miniter—whose hunting exploits have rendered him a staunch advocate of the Second Amendment—tackles the erosion of the Bill of Rights with similar aplomb:
For progress to occur in a society, its people need to have individual rights, the ability to take risks, and the chance to profit from their boldness. So to keep statism from slaying our individual rights, we must take back what has been lost. In America this reckoning begins with the Bill of Rights.
Saving the Bill of Rights is a pointed examination of the many ways in which Miniter feels progressive ideology—propelled by special interest groups, leftist politicians and activist judges—is destroying American liberty. From the First Amendment’s right to free speech to the Fourth Amendment’s protection against unreasonable search and seizure, Miniter carefully reviews each of the ten amendments and argues why Americans must fight to protect their inherent rights.
I was eager to catch up with my old friend and ask him a few questions about his new book.
CC: What prompted you to write a book about the Bill of Rights?
FM: Shock actually. When you become a student of American history and of the true state of what individual liberty is you begin to realize all we’re losing.
People often fail to recognize this because they don’t clearly know what their rights are. Thomas Jefferson warned of this danger to our freedom when he said, “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.” I wrote Saving the Bill of Rights to save our freedom by telling people about it.
We are supposed to be a constitutional republic. No matter what a president or congress does it can be ruled unconstitutional by the U.S. Supreme Court—our politicians and judges aren’t supposed to be able to get out of the constitutional box the people placed them in. The Bill of Rights is a fundamental part of this compact—it safeguards individual and state rights. Because of this we can survive even the worst president. Well, that is, unless the Supreme Court is complicit in their attacks on our Constitution, as they have been in cases like Korematsu v. U.S. (Where the Court ruled the federal government could imprison citizens and seize their property because of their race.), Griswold, Roe v. Wade (Can anyone really argue the Founders made abortion a constitutional right?), Kelo v. New London (The Fifth Amendment says property can be taken for a public “use” not that it can be taken and given to a private entity the government would prefer owned it.), Wickard v. Filburn (A farmer, whose raising crops for private consumption, isn’t engaging the crops in interstate commerce.) and many more.
CC: Your previous book, The Ultimate Man's Survival Guide, was an apolitical examination of masculinity. The book espoused tradition, strength, compassion, and responsibility, while simultaneously suggesting that many of those values are vanishing. How much of that thinking informed your new book? And do you see a correlation between masculinity and American exceptionalism?
FM: I’m surprised so many think the Bill of Rights is political. Fights over the interpretations of each amendment have certainly become political, but the fact that these individual rights are basic restrictions on government shouldn’t be viewed as political. It’s actually ignorance of the basis of our rights—namely that these first ten amendments to our Constitution are “negative liberties”—that causes so many to see the Bill of Rights as fundamentally political.
Now to directly answer your question, it’s interesting that our Founders saw a link between masculinity and freedom. Forrest McDonald in his fine book Novus Ordo Seclurum points out that many of the Founding Fathers worried that if the people lost their manly virtues the very basis for our individual liberty would be lost.
Thomas Jefferson, for example, hoped that America would stay an agrarian nation because working in the soil requires hard work that puts dirt under your nails, work that rewards manly virtues and therefore keeps the definitions of our individual liberties intact. John Adams also bragged about raising his children to be men by not spoiling them, but rather by making them earn their bread. He saw this as a way to grow them into virtuous men. Many in the late 18th century even used the term “effeminate” in a derogatory way and worried that cities were creating weak, girly men whose unfounded viewpoints could result in a moral decay of society, a decay that would lead to a deterioration of our liberty.
CC: Over the course of the past ten years, we've seen more and more Americans exercise their First Amendment rights in the form of protest—from the anti-war rallies prevalent during the Bush administration to the Tea Party and Occupy movements of the Obama era. Do you think Americans are beginning to wake up? And what more can be done to save the Bill of Rights?
FM: America has historically gone through periods of revival. President Franklin D. Roosevelt interned Japanese and—less famously—some German Americans simply because of their race. He also deteriorated private-property rights by nominating Supreme Court justices who voted, in Wickard v. Filburn, that even a farmer who is growing crops for home consumption was engaging in interstate commerce.
His Court also, in the 1954 decision Berman v. Parker, rewrote the Fifth Amendment. Instead of just having the power to take property for public “use” this case said the government could take property for a public “purpose.” A purpose, of course, can be anything at all. Supreme Court Justice William O. Douglas, who had been nominated in 1939 by Roosevelt, wrote for the majority that if "owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly.”
Instead of interpreting the law, as a judge should, Justice Douglas voted for a policy—something legislators are elected to do. This decision led to the Kelo v. New London decision that took private homes from people so New London, Connecticut, could give their property to Pfizer—the largest pharmaceutical company in the world. People fought back after this 2005 decision.
Prior to the Kelo decision, only eight states specifically prohibited using eminent domain for economic development. However, now 43 states have amended their eminent domain laws to stop state and local government’s from wiping their backsides with the Bill of Rights.
So yes, Americans are again waking up. But there is a lot more they need to grasp.
CC: The Bipartisan Campaign Reform Act ("McCain-Feingold") was designed to limit corporate influence, namely money, in political campaigns. Although key elements of the legislation were struck down by the Supreme Court in Citizens United v. Federal Election Commission, you effectively cite McCain-Feingold as an example where progressive ideology has stepped on collective and individual free speech. Recently, however, some conservative governors and conservative interest groups have attacked labor unions by stripping away their collective bargaining rights. Labor unions, in fact, are often demonized by conservatives. Do you see a difference between corporate free speech as outlined in Citizens United and the collective bargaining rights of labor unions?
FM: No. Labor unions also had their First Amendment rights reduced by McCain-Feingold. They won these back with the Citizens United decision. Interestingly, the Disclose Act, which Democrats attempted to pass in 2010 to again restrict corporate speech, actually didn’t include labor unions. Labor unions butt heads with conservatives for many reasons. It’s not fair to compare collective bargaining by public unions to individual rights. Collective bargaining is not an individual right. The First Amendment gives us the right to petition our government. They can still do this. It doesn’t give the right for a government-made monopoly—in education, with critical services—to shutdown schools, trains, power companies—things the public paid—and then to hold these services ransom for more pay or benefits. Like the rest of the public, they can petition their government, run ads to advocate positions, and then vote their opinions.
CC: In your opinion, why is the Second Amendment the most important amendment in the Bill of Rights?
FM: It is and it isn’t. I’d put it this way—when people win the right to free speech they’ve won a right they can then demand all of their other rights with. If such a people, however, isn’t armed, then the administration or autocrat in charge can simply enforce their controls upon the people. Therefore the right to bear arms backs up all the other rights. That said, I’m not an anarchist nor do I advocate any violence—though if I were an Iranian or Syrian I might feel otherwise.
The right to self-defense is a basic human need. After all, the stronger guy gets his way until some smarter, though weaker, individual sharpens a stick. Anyone who lives in an inner city “gun-free zone” sooner or later learns that trusting the state to be on the scene to stop a rapist, robber, and/or murderer—however diligent and brave the police might be—is only a workable view for those who get police escorts. And anyone awoken by the sound of glass breaking would rather have a gun than a telephone.
In such hair-raising moments, people learn that Colonel Samuel Colt wasn’t joking when he ran ads declaring, “God made man, but Samuel Colt made them equal.” People learn in one terrifying moment that though 911 is an important lifeline, 911 is no more real than good intentions until the police actually arrive. Also, no matter what the law says, the weaker sex learns that gun rights are a necessary ingredient to bring about true equal rights.
CC: In the wake of the Supreme Court's decisions in Heller v. District of Columbia and McDonald v. City of Chicago, both of which reaffirmed Americans' right to gun ownership, what are the greatest threats currently facing the Second Amendment today? Would you support a ban on large-capacity magazines?
FM: The threat to the right to bear arms is purely ideological—some people don’t trust an armed citizenry. So the debate will be everlasting. One more vote against this basic individual right in the Supreme Court could erase the Heller and McDonald decisions.
As for high-capacity magazines, to me such restrictions are silly. I’ve competed in three-gun competitions. These events occur all over the country and gather hundreds of men and women together, all with shotguns with extended tubes, semi-automatic handguns with multiple clips, and AR-style rifles with magazines that may hold 60 or more rounds. These are the most patriotic people you’ll find anywhere. They don’t commit crimes. They are there having a hell of a time. Only a fool would break into one of their homes.
Feel-good legislation—feel-good to people with little or no understanding of what they’re restricting—is window dressing. But such restrictions can be entirely constitutional—each individual right is subject to reasonable restrictions. For an in-depth answer to this question I’ll have to ask people to read my book, as there is a lot more to say on this topic.
CC: In what ways have conservatives failed the Bill of Rights?
FM: Some in the government say, for our own security, the FBI and other law-enforcement agencies have the right to send National Security Letters (NSLs), without a warrant as mandated by the Fourth Amendment, to force banks, ISPs, and other companies to give up our personal records. This is unconstitutional. NSLs require no probable cause or even judicial oversight. From 2003 to 2006, for example, the FBI issued 192,499 national security letter requests. Section 505 of the Patriot Act allowed NSLs to be used to investigate U.S. citizens even if they are not suspects in a criminal investigation. Sen. Rand Paul has been the most vocal opponent of NSLs, or what America’s Founders would have known as “Writs of Assistance,” which, incidentally, were one of the reasons Colonial Americans went to war with King George III. But some conservatives have been for them and for other curbs on our freedom.
CC: In discussing jury nullification under the Sixth Amendment, you write that "requiring jurors to ignore their sense of morality by only judging cases according to laws actually prevents jurors from legally distinguishing right from wrong; after all, what is moral and what is legal aren't necessarily the same thing." Can the same argument be made in favor of activist judges? And is there a distinction between jury nullification and judicial activism?
FM: Jury nullification is done by the people—their proxies—and then the jury is disbanded. A judge who commits judicial activism doesn’t just hear one case. He or she sits in judgment until they die or are removed from the bench. The jury is the representative of the people. The judge is representing the government. The Bill of Rights is basically a list of restrictions on the government, not on the people.
To understand this let’s step back a moment. Jury rights in England are actually what led to our individual rights. Jury rights prevailed in England after the trial of William Penn in 1670. Penn converted to Quakerism and wrote pamphlets to protest persecution. At the time the King and the Church of England were confiscating the Quakers’ property. Penn was arrested for violating the Conventicles Act of 1670, which made it illegal for any religious group, except the Church of England, to have a religious assembly. Penn asked to see a copy of the charges. The judge refused and directed the jury to come to a verdict of guilty. Nevertheless the jury returned a verdict of not guilty. The judge then fined and jailed the jury.
Over the proceeding months the jurors’ cause became known as “Bushel’s Case,” after Edward Bushel, a member of the jury. Penn was freed when his father, who was then on his deathbed, paid his fine. Meanwhile, Penn’s jury, which held firm, sparked a popular uprising that was instrumental in establishing not only the rights of juries, but also the freedom of religion, the freedom of speech, and habeas corpus, a right that requires the government to produce charges and to release someone being held illegally. These rights were won, to some extent, because this jury exercised its right to judge not only the facts in a case but also whether a law is just. This is the difference between a judge and a jury.
CC: The Supreme Court recently ruled (in Kentucky v. King) that police can conduct warrantless searches in exigent circumstances. This ruling, coupled with other state court rulings such as Barnes v State in Indiana, has essentially decimated the Fourth Amendment. Do you feel we are heading towards a police state?
FM: Those were state rulings that likely won’t stand in federal courts. The Fourth Amendment has been incorporated, meaning it now also restricts state and local governments. The central issue with the Fourth Amendment is that many on the Left think it’s irrelevant. They argue that because George Washington (and the rest of the Founders) didn’t know that one day people would have Facebook pages and Twitter accounts then how can the Fourth Amendment be relevant today? While it’s true that in 1791, the year the Bill of Rights was ratified, the Internet was nearly two centuries from being invented, this doesn’t give judges the right to ignore the Fourth Amendment protection of our “persons, houses, papers, and effects, against unreasonable searches and seizures.” After all, the Founders might not have foreseen the Internet, but they did outlaw warrantless invasions of our privacy. The Framers certainly foresaw the possibility of a centralized federal government infringing on basic human liberties; this is why they protected our privacy from warrantless searches in the Bill of Rights. So why technology has been invented, the basic rights are still the same.
We have to be wary of giving our government the power to continue eroding our privacy rights. This, however, is a complicated concept. I urge people to read the Fourth Amendment chapter in my book for a more thorough answer.
CC: How concerned are you about the U.S. Patriot Act?
FM: Less and less. The Fourth Amendment is a step from the grave and many of the issues with the Patriot Act have been fixed. The ACLU needs to be given credit for some of the fixes. Conservatives have also taken on some of the issues with the Act. There will always be a tug-of-war between our attempt to attain security and safety and our individual rights.
For example, when Phil Zimmermann created the first version of “Pretty Good Privacy” (PGP) encryption in 1991, he quickly ran into opposition from the National Security Agency (NSA), which viewed encryption as a state secret. Zimmermann’s PGP used a symmetric-key algorithm that protected the privacy of emails and other data. Pretty Good Privacy soon found its way onto the Internet and began to be used by political dissidents in totalitarian countries. As a result, in February 1993, Zimmermann became the formal target of a criminal investigation by the U.S. Government for “munitions export without a license.” Zimmermann put the source code in a book to fight on stronger First Amendment grounds. The government finally gave way. He won, and as a result, we can safely buy products on the Internet.
As with each amendment in the Bill of Rights, what I’m most concerned with is that people understand what their rights are so they can defend them. This is why I wrote Saving the Bill of Rights.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.