There's a Lot You Don't Know About the Bill of Rights; Author/Lawyer Bob McWhirter Explains

Arizona lawyer Bob McWhirter has written a book, Bills, Quills and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights, tracing the origin of the first ten amendments to the Constitution over a span of a thousand years. McWhirter’s view is that most Americans don’t really understand the Bill of Rights. He explains how James Madison came to be involved with the first ten amendments. Madison was originally opposed to including a Bill of Rights. His position was that the Constitution protected the rights of Americans. The anti-federalists were pushing against the Constitution. Patrick Henry was Madison’s political enemy and used his control of the Virginia House of Burgesses to prevent Madison from becoming a Virginia Senator. Madison ended up running against James Monroe for a seat in Congress and needed a campaign issue. He agreed to champion the Bill of Rights. He won his election, and he became the father of the Bill of Rights.

Bob McWhirter

Bob McWhirter

McWhirter notes that the founding fathers created a republic, not a democracy. They studied the writings of Thucydides and were wary of direct democracy. Over the years, American government has become more democratic. For example, U.S. Senators are now elected by the voters; when the country started, Senators were chosen from the state legislatures. On the whole, however, important decisions are made by people who are elected and given the decision-making authority.

As to the relative importance of the amendments, McWhirter considers the First Amendment easily the most important. Every aspect of the “culture wars” can be found in the amendment, including the same sex marriage debate. McWhirter says that the Second Amendment gets a lot of discussion, but it is not as important. The bumper stickers claiming that the Second Amendment protects the First one have it just backwards, according to McWhirter. The NRA’s lobbying efforts are using First Amendment freedom of speech to urge their interpretation of the Second Amendment.

As to the right to bear arms, people living at the time the Constitution was written would have thought the question strange. Members of colonial militias were required to bear arms and had to buy their weapons, pay for maintenance, and provide their own ammunition. “People considered it to be like a tax, and they didn’t like it.” Guns weren’t like they are today. In 1791, it probably took too long to load a flintlock to make it a convenient defensive weapon for a homeowner. Also, back in those days, a person could buy any weapon affordable, something we don’t allow today. No one can buy an Abrams tank.

Alcohol played a big role in the Bill of Rights as well. “The reason why we have the Fourth Amendment . . . is purely alcohol.” The contraband that was being protected from search and seizure was molasses. Molasses (which came from sugar cane) made rum. And rum was the currency of the slave trade, the triangle trade that existed in colonial America. “That was the economic engine that fueled the entire thing in the late 18th Century.” McWhirter maintains that the biggest thing about the Bill of Rights that Americans don’t learn in school is the role that slavery played in the formation of the Bill of Rights and of the Constitution itself.

McWhirter wrote the book, he says, because he was interested in the topic “and it became a labor of love for me.” It began as a history of the criminal amendments because McWhirter is a criminal lawyer, but branching out seemed to make sense. He made a point of using as many cultural references as possible to help readers see the relevance of the history.

Robert J. McWhirter received his Juris Doctorate from Arizona State University College of Law in 1988.  Upon graduation, he clerked for Vice Chief Justice Stanley G. Feldman of the Supreme Court of Arizona. He was an Assistant Federal Public Defender from 1989 until 2007 representing Native Americans and other clients in a broad range of Federal cases including homicide, sexual abuse, and bank robbery. He is the author of Bills, Quills and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights. The Legal Broadcast Network is a featured network of the Sequence Media Group.

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