The definitive Constitutional rights and freedoms comparison thread.

[Lunatech]

In the Gun Rights and Security Issues forum, there is a debate going on about gun control. A particular Australian and I got into a pissing match over who has more freedom under their constitution, Australia or the US. This lead to a challenge to go over the Constitutions of each respective countries, point by point, to see who really does have more freedom. In order to keep from derailing that thread, I stated that I would make this thread. But let's not limit it to US versus Australia, I'd like to see everyone get involved.

So, to start things off, I will offer for your analysis, Amendment One to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.

This Amendment is a big one, as it guarantees quite a number of rights that we Americans take for granted. Freedom of religion, freedom of speech, freedom of the press, and freedom of assembly.

Freedom of religion guarantees that the government will not establish a state religion, nor will it hinder the practice of any citizen's religious beliefs. It was established because a great number of colonist came to America to escape religious persecution, prevalent at the time in England. Now, the Church of England can actually practice here in the US, as well as many odd and screwball religions outside the mainstream. Certain Native Americans (aboriginal americans) are even permitted to ingest psychotropic drugs that would otherwise be prohibited under federal law, because they are used for religious purposes.

Freedom of speech guarantees that a person or person cannot be persecuted for what they say. This clause covers things like controversial art, Illinois Nazis (cookie for the reference) and pornography under it's umbrella. Some legislation that has been sought to limit this right would be various hate speech laws, and laws that prohibit child pornography. While I am very uncomfortable with the former (hate speech), I have no problem limiting the latter. For every bit of child porn, there is a corresponding crime of child abuse.

Freedom of the press is pretty self-explanatory. The press is free to publish anything they want, so long as it is neither slanderous nor libelous. While I do not necessarily like the slant that our media often puts on our news here in the US, I am happy to see that it is just as free as ever. We even had embedded reporters in our military operations in Iraq. As a former infantryman, I had enough trouble covering my own hide and that of my squad-mates, I would not have liked trying to protect a journalist, as well.

Finally, freedom of assembly. This freedom allows us to march for a cause, or meet just about anywhere, as long as we assemble peacefully. The protests of the globalization talks come to mind when I think of not assembling peacefully. Those nogoodniks are ruining things for the rest of us! On the negative side, the "Free Speech Zones" a mile away from conventions are asinine. A members of a political party or conference should see up close and personal how angry they are making people. To quote one of my favorite authors, "Every ruler should have a noose around their neck. It keeps them upright."

So, tell me if you have similar freedoms in your Constitution. I think it would educate everyone involved if we compared in this fashion.

[crisis]

We have no bill of rights as such. However I have tried to find passages that relate to what you are quoting.


Freedom of religion
116 Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any
Religion, or for imposing any religious observance, or for
Prohibiting the free exercise of any religion, and no religious test
shall be required as a qualification for any office or public trust
under the Commonwealth.

Freedom of speech
We have no right to freedom of speech (although it is part of the United Nations Universal Declaration of Human Rights) The High Court of Australia did find that the Constitution contained an "implied right" to freedom of political communication for what thats worth.

Freedom of the press
We do not have this enshrined.

Freedom of assembly.
I can find no reference to anything that states this.

It is interesting that although we do not have prescribed “rights” spelled out the way you do in your constitution we enjoy the same freedoms . Freedom of speech exists not exactly by legislature yet there are few examples of where people have been oppressed much less arrested for voicing their views. One example which is current is that of certain Muslim leaders advocating Jihad. They have not been arrested for this and the debate is ongoing as to what they should be allowed to say. With no such freedom of speech law one could assume they could be arrested however I think the problem is that there does not exists a charge.

Similarly freedom of the press and of assembly is demonstrated daily. So I would suggest that while I am sure specific examples of transgressions or stretching these rules may exist on both sides on a day to day basis our freedoms in these areas are the same.

[Diuretic]

Originally Posted by Lunatech

In the Gun Rights and Security Issues forum, there is a debate going on about gun control. A particular Australian and I got into a pissing match over who has more freedom under their constitution, Australia or the US. This lead to a challenge to go over the Constitutions of each respective countries, point by point, to see who really does have more freedom. In order to keep from derailing that thread, I stated that I would make this thread. But let's not limit it to US versus Australia, I'd like to see everyone get involved.

So, to start things off, I will offer for your analysis, Amendment One to the US Constitution:



This Amendment is a big one, as it guarantees quite a number of rights that we Americans take for granted. Freedom of religion, freedom of speech, freedom of the press, and freedom of assembly.

Freedom of religion guarantees that the government will not establish a state religion, nor will it hinder the practice of any citizen's religious beliefs. It was established because a great number of colonist came to America to escape religious persecution, prevalent at the time in England. Now, the Church of England can actually practice here in the US, as well as many odd and screwball religions outside the mainstream. Certain Native Americans (aboriginal americans) are even permitted to ingest psychotropic drugs that would otherwise be prohibited under federal law, because they are used for religious purposes.

Freedom of speech guarantees that a person or person cannot be persecuted for what they say. This clause covers things like controversial art, Illinois Nazis (cookie for the reference) and pornography under it's umbrella. Some legislation that has been sought to limit this right would be various hate speech laws, and laws that prohibit child pornography. While I am very uncomfortable with the former (hate speech), I have no problem limiting the latter. For every bit of child porn, there is a corresponding crime of child abuse.

Freedom of the press is pretty self-explanatory. The press is free to publish anything they want, so long as it is neither slanderous nor libelous. While I do not necessarily like the slant that our media often puts on our news here in the US, I am happy to see that it is just as free as ever. We even had embedded reporters in our military operations in Iraq. As a former infantryman, I had enough trouble covering my own hide and that of my squad-mates, I would not have liked trying to protect a journalist, as well.

Finally, freedom of assembly. This freedom allows us to march for a cause, or meet just about anywhere, as long as we assemble peacefully. The protests of the globalization talks come to mind when I think of not assembling peacefully. Those nogoodniks are ruining things for the rest of us! On the negative side, the "Free Speech Zones" a mile away from conventions are asinine. A members of a political party or conference should see up close and personal how angry they are making people. To quote one of my favorite authors, "Every ruler should have a noose around their neck. It keeps them upright."

So, tell me if you have similar freedoms in your Constitution. I think it would educate everyone involved if we compared in this fashion.

Cookie for me - I remember the Skokie, Ill. march. ACLU represented them I think? Going back to reading the rest now.

[Diuretic]

It's actually an interesting topic if it doesn't degenerate

Because Australia developed differently from the US there really is no comparison, I'll state that and happy to follow up if required.

But when we talk about "freedom" it's quite subjective. I feel free, I don't feel unusually constrained. I don't fear my government as an institution, I feel no need to ask for the right to bear arms so I can overthrow my government.

[SMadsen]

Originally Posted by Lunatech

Freedom of speech guarantees that a person or person cannot be persecuted for what they say.

Lunatech, I'm not sure you got the interpretation of freedom of speech right. Anyone can be persecuted (and prosecuted) for what they say but they can't be persecuted (nor prosecuted) for saying it. That is, while I have the right to say anything I want, freedom of speech does not make me irresponsible for the things I say.


And yes, we have all of the above in our constitution. While we actually do have a state church, we are still ensured freedom of religion (though we have to admit that it does give some minor administrative conflicts when it's really being challenged).

[Porras]

Originally Posted by Diuretic

Cookie for me - I remember the Skokie, Ill. march. ACLU represented them I think? Going back to reading the rest now.

I think he's actually going with the Blues Brothers reference.

"I hate Illinois Nazis."

[Lunatech]

Originally Posted by Diuretic

It's actually an interesting topic if it doesn't degenerate

Because Australia developed differently from the US there really is no comparison, I'll state that and happy to follow up if required.

How is it that you developed differently? How did you gain your independence? I am not being rhetorical, I quite literally don't know the answer. A lot of the rights and freedoms guaranteed in the Constitution and Bill of Rights came into being due to two factors. One, why the colonists left Europe in the first place (to escape religious and political persecution), and two, why we fought for our independence from Britain.

Originally Posted by Diuretic

But when we talk about "freedom" it's quite subjective. I feel free, I don't feel unusually constrained. I don't fear my government as an institution, I feel no need to ask for the right to bear arms so I can overthrow my government.

Ah, but you're skipping ahead. That we can cover when we get to the Second Amendment. I'm sure you and crisis will have a lot to say about that.

Originally Posted by SMadsen

Lunatech, I'm not sure you got the interpretation of freedom of speech right. Anyone can be persecuted (and prosecuted) for what they say but they can't be persecuted (nor prosecuted) for saying it. That is, while I have the right to say anything I want, freedom of speech does not make me irresponsible for the things I say.

You're right, you are still responsible for what you say, but only in civil proceedings. If I say things that aren't true, I can be sued in civil court for slander, or libel, and may be forced to make reparations for the pain and suffering caused by my statements (or loss of profits cuased, in the case of libel). But not prosecuted in a criminal court.

The funny thing about slander and libel, is that it actually puts the victim on the spot. If I slander you, you not only have to prove that I said it, but that what I said caused you trouble. And you have to prove that what I said was untrue, as well. I could say, "crisis has carnal knowledge of gerbils," and crisis would then have to prove that I said it, that it caused him emotional distrubance, and that what I said was untrue. If one of the above criteria is not met, then crisis would be out of luck.

Originally Posted by SMadsen

And yes, we have all of the above in our constitution. While we actually do have a state church, we are still ensured freedom of religion (though we have to admit that it does give some minor administrative conflicts when it's really being challenged).

Does the state pay for the state religion? For example, are the churches built on government property? What exactly do you mean by a "state religion?"

And finally, the cookie. Porras has the Blues Brothers reference, but in the movie, they actually were referencing the real-life case from Skokie. So, you two will have to share.

Gosh, this is fun! Are we ready for the next amendment?

[Lunatech]

And now, for the Second Amendment. I know you guys will love this one:

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.

I know, I know, we'll have the armchair constitutional lawyers saying this Amendment is all about arming the National Guard, but they would be wrong! Time and time again, the courts have upheld this as an individual right, most recently with the striking down of the DC handgun ban. So get over it, it is a right guaranteed by our constitution.

Now, for the limitations. In 1934 the right to own fully automatic weapons was curtailed (but not abolished) with the enactment of the National Firearms Act. 1938 saw the enactment of the Federal Firearms Act, which prohibited the sale and shipping of firearms the interstate cammerce without a Federal Firearms License. In 1968, the Gun Control Act outlawed the mail order sale of rifles and shotguns, and prohibited the sale of firearms to convicted felons (duh) drug users, people found mentally incompetent, and a few others (like people currently under a restraining order). Finally, in 1994, a temporary restriction was created on the sale of scary-looking weapons (as most of the features banned were cosmetic only in nature) and handguns that could take magazines with a capacity exceding 10 rounds. This bit of legislation had a built-in sunset which invalidated the law after ten years. This was considered by most in these parts as the only sane part of the legislation.

Now, for my opinion. I think that we should have no limitations on the small arms that we can buy. That's what "shall not be infringed" means. Diuretic, crisis, anyone else, I welcome your comments and criticisms.

[crisis]

Originally Posted by Lunatech

And now, for the Second Amendment. I know you guys will love this one:

Now, for my opinion. I think that we should have no limitations on the small arms that we can buy. That's what "shall not be infringed" means. Diuretic, crisis, anyone else, I welcome your comments and criticisms.

There are three parts to my response .

First what the amendment means. As you said higher courts and more legally qualified people have debated the intricacies of this. Basically court decisions exist to be appealed and over turned. From my point of view it may have been necessary in the days the amendment was written for the entire population to be able to defend the “state” against invaders. Clearly now your army has no need of an armed populace to assist it in defending your country and it in fact deals with the possible need with a National Guard.

Whether it is relevant. This leads on from the first. “The security of a free State” is no longer an issue form an outside threat. The internal threat you does not exist in the same way as when you were under British rule.

That it has any bearing on who has more rights. Owning a gun is only a right because at one time in your history a group of people decided to make it so. The mere fact that new laws have been brought in to restrict the amendment illustrates that some people, at least, believe it is outdated and in need of modification.

[SMadsen]

Originally Posted by Lunatech

Does the state pay for the state religion? For example, are the churches built on government property? What exactly do you mean by a "state religion?"

By state religion I mean a church that, according to the constitution, is supported by the state. Although membership is most often iniated at birth (which is where a part of the conflict arises), being member of the church is voluntary. Only members pay the special church tax that in turn finances and runs the entire apparatus (or rather, it should).

It's an ancient construct that originates from the methods used to defeat Catholicism during the Reformation. By having the state (i.e. the King) taking over all Roman-Catholic churches and initiating a central administration, it could gain the control needed to keep Catholicism from popping up again. As a consequence, to this day, the King (or Queen) is the only person in the entire kingdom that doesn't enjoy freedom of religion. He/she is forced to adhere to the religion of the state church (poor bugger).

[Diuretic]

Originally Posted by Porras

I think he's actually going with the Blues Brothers reference.

"I hate Illinois Nazis."

Damn I have exposed my un-hipness

[Diuretic]

Originally Posted by Diuretic

It's actually an interesting topic if it doesn't degenerate

Because Australia developed differently from the US there really is no comparison, I'll state that and happy to follow up if required.

Orignally Posted by Lunatech

How is it that you developed differently? How did you gain your independence? I am not being rhetorical, I quite literally don't know the answer. A lot of the rights and freedoms guaranteed in the Constitution and Bill of Rights came into being due to two factors. One, why the colonists left Europe in the first place (to escape religious and political persecution), and two, why we fought for our independence from Britain.

I’ll try and keep this brief and discipline myself because I do go on a bit.

Australia (after the initial settlement of New South Wales in 1788) became a land (not a country, not a nation yet) of five colonies (former penal colonies) and one province that was settled by free settlers and was never a penal colony. Each colony and province achieved self-government (but not independence) from Britain at different times. The colonies and province negotiated to become a federation and Australia became one nation (federation) on 1 January 1901. Now this was only possible because the Imperial Parliament in Britain allowed it to happen ! Our constitution is in fact no ours, it is an Act of the Imperial Parliament to create our nation. Unlike Canada we still don’t have our constitution, it’s still an Act of the Imperial Parliament. We are not truly independent of Britain.

Originally Posted by Diuretic

But when we talk about "freedom" it's quite subjective. I feel free, I don't feel unusually constrained. I don't fear my government as an institution, I feel no need to ask for the right to bear arms so I can overthrow my government.

Originally Posted by Lunatech

Ah, but you're skipping ahead. That we can cover when we get to the Second Amendment. I'm sure you and crisis will have a lot to say about that.

Okay, will hold my fire….

[Lunatech]

Originally Posted by crisis

First what the amendment means. As you said higher courts and more legally qualified people have debated the intricacies of this. Basically court decisions exist to be appealed and over turned. From my point of view it may have been necessary in the days the amendment was written for the entire population to be able to defend the “state” against invaders. Clearly now your army has no need of an armed populace to assist it in defending your country and it in fact deals with the possible need with a National Guard.

But all of this does not change the fact that Federal courts have conssitently found this to be an individual right, regardless of what institutions we have for our defense. Yes, we don't need an armed populace. But likewise, we don't feel the pressing need to disarm our populace.

Originally Posted by crisis

Whether it is relevant. This leads on from the first. “The security of a free State” is no longer an issue form an outside threat. The internal threat you does not exist in the same way as when you were under British rule.

Ah, but relevance truly is a fleeting thing. What is not relevant today may be relevant next year, or next decade, or in three generations. Can you really say? And I could make the argument that, if you truly did disarm the populace, you really would be setting up a situation where arming the populace was relevant. An unarmed populace cannot fight back.

Originally Posted by crisis

That it has any bearing on who has more rights. Owning a gun is only a right because at one time in your history a group of people decided to make it so. The mere fact that new laws have been brought in to restrict the amendment illustrates that some people, at least, believe it is outdated and in need of modification.

But it does, you see. I have let you slide on the freedom of the press, and freedom of assembly, because you truly do practice them, even if they are not spelled out in detail in your charter, or constitution, or what-have-you. My firearms are a guaranteed right, under our constitution. Yes, it was guaranteed a couple of centuries ago, but those same people who made the right to keep and bear arms a constitutional right also gave us a way to repeal amendments to the constitution! It is difficult, and requires a truly Stygian effort on the part of the people who want the constitution changed, but it is possible, as you will see. The original Bill of Rights had ten amendments. There are now twenty-seven! That means that on seventeen separate occasions, we have changed our constitution.

Legislation is made, and yes, some people believe that the Second Amendment is outdated. And yet, the courts are constantly striking down the legislation as unconstitutional. The constitution could be changed, but I don't think it will in my lifetime. The reasons are mainly cultural, and I will do my best to explain.

The first reason is that as a culture, we have no respect for authority. We chucked the yoke of Britain during our revolution, and almost lost our sovereignty in a war that occurred around 1812, where we fought the British once again. The Canadians I have discussed the subject with claim that we attacked them (they were subject of the King at that time) first, which may be true. But we were almost recaptured at that point. And since our inception, we have taken in political refugees from around the globe. A culture truly built on people who do not trust government.

Much of the US has been unexplored territory, as well. Explorers and settlers have spread across the continent faster than civilization did, and because of this, people had to rely on themselves for protection. This was true even during the times when my father-in-law was young, and he would strap on a sidearm when he went riding in the foothills. And that was one generation ago.

Finally, let's not forget the fact that our revolution was pulled off by a minority of the population. Only one-third of the colonists supported revolution, with another third loyalists to the King. The final third really didn't care one way or the other. That meant that not only did the colonies not always get along, but neither did the citizens. Who could you trust, when every other person you met was a supporter of the King?

I would like to finish my response to you, crisis, with a quote from one of our pundits over here in the US. It does a good job explaining how americans feel.

Four boxes to be used in defense of liberty: soap, ballot, jury, ammo - use in that order. Ed Howdershelt

Originally Posted by Diuretic

I’ll try and keep this brief and discipline myself because I do go on a bit.

Australia (after the initial settlement of New South Wales in 1788) became a land (not a country, not a nation yet) of five colonies (former penal colonies) and one province that was settled by free settlers and was never a penal colony. Each colony and province achieved self-government (but not independence) from Britain at different times. The colonies and province negotiated to become a federation and Australia became one nation (federation) on 1 January 1901. Now this was only possible because the Imperial Parliament in Britain allowed it to happen ! Our constitution is in fact no ours, it is an Act of the Imperial Parliament to create our nation. Unlike Canada we still don’t have our constitution, it’s still an Act of the Imperial Parliament. We are not truly independent of Britain.

Thank you. This gives me what I need, and I will do some further study if I need clarification.

Originally Posted by Diuretic

Okay, will hold my fire….

Just didn't want you to go off half-cocked.

[crisis]

Originally Posted by Lunatech

But all of this does not change the fact that Federal courts have conssitently found this to be an individual right, regardless of what institutions we have for our defense. Yes, we don't need an armed populace. But likewise, we don't feel the pressing need to disarm our populace.

We are still part of the Commonwealth. In practice it has no impact on the way Australia is governed nor does it affect us adversely. But likewise many here don’t feel a pressing need to become a Republic.
Unlike your example what form our future takes in this regard is of little consequence. The fact that you hang onto a “right” that you have no pressing need for has the consequence of encumbering you with a proliferation of weapons that in case cause unnecessary and maybe even preventable death, injury and violence.

Originally Posted by Lunatech

Ah, but relevance truly is a fleeting thing. What is not relevant today may be relevant next year, or next decade, or in three generations. Can you really say? And I could make the argument that, if you truly did disarm the populace, you really would be setting up a situation where arming the populace was relevant. An unarmed populace cannot fight back.

So you are happy to endure the associated unnecessary preventable death, injury and violence in anticipation that this may happen?
The gap between the effectiveness of the weapons you are able to have now and the militaries will always become greater. You cannot use what you have now effectively against your government now so in the next decade etc this gap will only increase making the argument more irrelevant.

Originally Posted by Lunatech

The first reason is that as a culture, we have no respect for authority. We chucked the yoke of Britain during our revolution, and almost lost our sovereignty in a war that occurred around 1812, where we fought the British once again. The Canadians I have discussed the subject with claim that we attacked them (they were subject of the King at that time) first, which may be true. But we were almost recaptured at that point. And since our inception, we have taken in political refugees from around the globe. A culture truly built on people who do not trust government.

Much of the US has been unexplored territory, as well. Explorers and settlers have spread across the continent faster than civilization did, and because of this, people had to rely on themselves for protection. This was true even during the times when my father-in-law was young, and he would strap on a sidearm when he went riding in the foothills. And that was one generation ago.

Finally, let's not forget the fact that our revolution was pulled off by a minority of the population. Only one-third of the colonists supported revolution, with another third loyalists to the King. The final third really didn't care one way or the other. That meant that not only did the colonies not always get along, but neither did the citizens. Who could you trust, when every other person you met was a supporter of the King?

It explains the psyche. It also highlights a predisposition to holding onto outdated almost romantic ideals. At some time those things you mention were relevant. Now the are not. I agree that many Americans will fight to keep the amendment based on those emotions. I will question though, is that a way to run a country and make laws?