Blogs > Liberty and Power > Does the Bill of Rights Apply to Iraq?

Jan 23, 2005 12:34 pm

Does the Bill of Rights Apply to Iraq?

With regard to David's post below, here's an excerpt from my blog from July 2003.

U. S. forces haven't been able to find any weapons of mass destruction in Iraq yet, but when it comes to weapons of individual self-defense it's another story.

Most readers of this web journal will understand why the U. S. military's imposition of Nazi-style gun control on Iraq is evil -- arguably even more evil, in terms of consequences at least, than gun control in America. (If you and your family were civilians living in the chaos of postwar Iraq, wouldn’t you have an unusually pressing need for a gun?) I want to raise a different question: is it constitutional?

The Second Amendment reads:"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." Since Article VI establishes the Constitution as"the supreme law of the land," every branch and department of the U. S. government is bound by the Second Amendment, including the military.

But does this language protect civilian gun owners in Iraq? After all,"the people" referred to in the Second Amendment are surely the American people, not the human race generally.

Iraqi gun owners are obviously not American citizens. But a case could be made that they are nevertheless part of the American"people" in the constitutional meaning of that term For they are, after all, people under the jurisdiction of the U. S. government.

Should the phrase"the people" then be interpreted narrowly, to mean American citizens only, or broadly, to mean anyone under the jurisdiction of the U. S. government? I am persuaded by Lysander Spooner's arguments in The Unconstitutionality of Slavery that constitutional ambiguities should always be resolved in whichever direction is most consistent with natural justice, so that"all reasonable doubts must be decided in favor of liberty." As he notes in Chapter 17:

It is a universal rule of courts, that where justice will be promoted by taking a word in the most comprehensive sense in which it can be taken consistently with the rest of the instrument, it must be taken in that sense, in order that as much justice as possible may be accomplished. On the other hand, where a word is unfavorable to justice, it must be taken in its most restricted sense, in order that as little injustice as possible may be accomplished.
A prohibition on infringing the rights of anyone subject to U. S. jurisdiction is certainly more favourable to liberty and justice than a ban on infringing the rights of U. S. citizens only; hence the former interpretation, resting on a"more comprehensive sense" of the phrase"the people," is to be preferred.

Even if this reasoning should be rejected, however, there are other arguments against the constitutionality of the U. S. campaign to disarm the Iraqi citizenry. Here's one: according to the Second Amendment, an armed citizenry (which is what"militia" means in 18th-century English) is"necessary to the security of a free state." So, by the standard endorsed by the Constitution, what is the condition of a state that has been deprived of this necessary condition? Obviously it must be an unfree state -- a slave state. But the Thirteenth Amendment outlaws slavery"within the United States, or any place subject to their jurisdiction" – including Iraq. (Nor will it do to protest that the Thirteenth Amendment means to outlaw only chattel slavery; the wording specifies that"neither slavery nor involuntary servitude" shall be permitted, thus ruling out a narrow reading. The condition of a disarmed populace is certainly one of involuntary servitude.)

Second, whether or not the Constitution contains a specific prohibition on the imposition of gun control on a noncitizen populace, there is arguably a general prohibition to the same effect. The Tenth Amendment denies to the U. S. government all powers beyond those granted. Where in the Constitution is the U. S government granted the power to infringe the right of noncitizens to bear arms?

The answer, I may be told, is in Article IV, section 3:"Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Well, what does this mean? Should it be interpreted narrowly, to mean simply that such territory falls under the authority of Congress (rather than, say, of the President)? Under that reading, the provision concerns the apportioning rather than the expansion of authority. Or should it be interpreted broadly, to mean that the Congress is granted an unrestrained and arbitrary power to bind such territory in whatever manner it pleases? Under that reading, the bill would be a grant of despotical power. To quote Spooner once more:

[W]here words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and only that meaning, which is consistent with right, shall be attributed to them, unless other parts of the instrument overrule that interpretation.
Hence we are under no obligation to give Article IV, section 3, a liberticide construction.

Operation Iraqi Enslavement is unconstitutional. What are the implications of this finding? First, President Bush is in violation of his oath of office (again) and deserves immediate impeachment (still). Second, military personnel who implement Bush's gun ban are carrying out illegal orders, and so are legally obligated to cease and desist immediately.

Finally, to pass from the constitutional level to the level of policy analysis: Saddam Hussein was by all accounts a brutal dictator, yet he apparently felt no need to render the Iraqi populace defenseless by disarming them. What fate must George Bush have in store for them, if he feels that need? ...

As the mainstream political spectrum stands, those most enthusiastic about the First Amendment are often those least enthusiastic about the Second, and vice versa. In practice, however, governments that suppress either one of these freedoms usually turn out to suppress the other as well. In my previous post, I discussed the U. S. military's current policy of disarming civilians in Iraq. Today, in the August 2003 issue of Liberty (Alan W. Bock,"Free to Obey," p. 10), I learn that the Coalition Provisional Authority is laying down a" code of conduct" for the Iraqi media. According to Coalition spokesgoons, the code is necessary to"stifle intemperate speech that could incite violence and hinder efforts to build a civil society." In newly liberated Iraq, there's"no room for hateful and destabilizing messages that will destroy the emerging Iraqi democracy. All media outlets must be responsible."

Is this legal? Not under natural law, obviously. But I don’t think it's legal under U. S. law either. Despite talk of a"Coalition" Authority, Iraq is effectively under U. S. rule. It follows, according to the Constitution, that Iraq is under the authority of Congress:"Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." (Article IV, section 3) So if censorship is being imposed on Iraq, by what authority is this being done? Not by extra-Congressional authority, because no extra-Congressional entity has any legal authority over Iraq; the Constitution places the relevant authority squarely in Congressional hands. And not by Congressional authority either, because, as the First Amendment stipulates,"Congress shall make no law ... abridging the freedom of speech, or of the press." (Note that the First Amendment does not say:"abridging American citizens' freedom of speech or of the press"; the prohibition is quite unrestricted.) Under the Constitution, U.S.-imposed censorship in Iraq could be authorised only by act of Congress; and under the Constitution, censorship is something that Congress is expressly forbidden to authorise.

So long as the Iraqi people are under U. S. rule, they are entitled to receive the full protection of both the First and the Second Amendments.

Don't hold your breath, though.

Don't hold your breath waiting for American citizens to receive the full protection of those Amendments either, of course. Still, the courts do throw us a scrap or two of protection in the name of the First and Second Amendments. What our rulers are doing to the Iraqi people is a good indication of what they would be doing to us, were it not for the few remaining shreds of liberty that the courts are willing to uphold.

Why aren't liberals complaining about U. S.-imposed censorship in Iraq? Why aren't conservatives complaining about U. S.-imposed gun control in Iraq? Wasn't this war supposed to be about bringing freedom to the Iraqi people? Doesn't the Bill of Rights define what the United States means by"freedom"?

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William Marina - 1/24/2005

While I agree with the theoretical argument, you guys are all flogging, not even a dead horse, but a pile of rotted horsemeat.
As the US got into the Empire Game a century ago, the Supreme Court decided in "The Insular Cases," that the Const., etc., didn't really apply "out there" in the Empire. As the Anti cartoonist FP Dunne put it, the Court follows the election returns.

chris l pettit - 1/24/2005

Other than being completely wrong about your interpretation of the 2nd Amendment (at least from a legal perspective), which many if not most libertarians I have debated also misinterpret. But that is another discussion that is usually carried out in a legal/original reasoning versus ideological/trying to apply 18th Century language to current debate tracing it politically style, so we can look at it another time.

THe 3rd Amendment issues strike me...Mr. Gregory is correct in stating that the Bill of Rights are applicable to the US as a whole, and apply wherever US forces are located, as they have been interpreted to be universal rights. Can someone provide links to stories about troops forcing families to quarter troops? I can understand the argument that Iraq as a sovereign state collectively is being forced to quarter troops, but that is quite a different issue than the one raised in the 3rd Amendment...


Anthony Gregory - 1/23/2005

The federal government is barred from infringing rights. Any time the government does so, it is violating the Bill of Rights, regardless of whose rights it's violating.

I think the American colonists would have wanted the unwritten English Constitution to apply to the British government in a way that precluded rights violations of Americans.

The language of the Bill of Rights is clear. It limits the state, rather than granting rights to the American population.

Of course, this whole war is a violation of the Tenth Amendment.

David Timothy Beito - 1/23/2005

The conservatives are pushing two contradictory notions. First, many of them argue that the Constitution only applies to citizens, hence treating Iraqis as second class is okay. There is a contradictory strain of conservativism, however, that holds that the U.S. has a divine mission to bring "liberty" to dark corners of the planet. This implies that the proections of the Bill of Rights are somehow universal. The two notions are in tension.

The liberal double standard is less easy to explain.