Tuesday, June 14, 2016

On abrogating constitutional rights without due process (no poker content)

I wrote this for Facebook, then decided I might as well make it more accessible by posting it here. What got me thinking about the subject was this blog post by legal scholar Josh Blackman, whose writings I have come to like--including, e.g., his book on the legal challenges to Obamacare.

I've been ruminating more on the proposals--by Barack Obama, Hillary Clinton, Dianne Feinstein, and others--that if you're on a terrorist watch list or a no-fly list, you should be barred from being able to buy a gun. It's important to keep in mind that placement on such lists is based only on suspicion--by definition, less than needed to constitute "probable cause" for an arrest warrant, let alone evidence "beyond a reasonable doubt" necessary for a criminal conviction.

The Adam Winkler proposal to have such determinations rubber-stamped by a FISA-like court (see the link I posted earlier today) doesn't improve matters much, because those are secret proceedings, in which the accused does not get to examine or contest the evidence the government claims to have against him. In fact, the accused doesn't even know that such a proceeding is taking place, so there's no right to be represented by an attorney, to confront witnesses, etc.

Just as a thought experiment, imagine if the result of being placed on one of those lists of suspects were a clear violation of some clear constitutional right *other* than that protected by the second amendment.

First amendment: "Citizen, you are under suspicion, and may no longer post your opinions about Islam anywhere on the Internet."

First amendment, again: "Citizen, you are under suspicion, and may no longer attend any Islamic place of worship."

First amendment, again: "Citizen, you are under suspicion, and may no longer have contact with friends or family members who are of the Muslim faith."

First amendment, again: "Citizen, you are under suspicion, and may no longer join in petitions to the government relative to the grievances you claim in the treatment of Muslims."

Fourth amendment: "Citizen, you are under suspicion, and law enforcement agencies from every level of government are now empowered to search your person at any time, and to enter your home and business and search all of your belongings, at their sole discretion, seizing any items they deem relevant, without a warrant."

Fifth amendment: "Citizen, you are under suspicion, and are now required to cooperate in our gathering of evidence against you. This means, specifically, that you must answer all of our questions about your various activities, businesses, social contacts, religious beliefs, ideas, and plans. If you do not comply willingly, you will be jailed in order to coerce your compliance."

Eighth amendment: "Citizen, you are under suspicion. Should jailing you fail to produce your compliance with the questioning described above, we are authorized to employ methods of torture to gain your cooperation."

Thirteenth amendment: "Citizen, you are under suspicion. Therefore, you are hereby declared to be a slave of the federal government. The US Marshal presenting you these papers will now escort you to the forced-labor camp. Noncompliance with any order will be severely punished."

If you would be willing to stand for ANY of these consequences on the grounds of being a mere *suspect*, without evidence sufficient for arrest (much less prosecution), then I'm afraid that your views and mine about rights, liberty, the constitution, and what it means to live in "the land of the free" are so far apart that there is no way to bridge the divide.

If, however, you share my sense of revulsion at the thought that the government could treat a citizen in this manner, then I respectfully invite you to consider whether we should allow the right to own/purchase a firearm, as guaranteed in the second amendment, to be abrogated with that lessened threshold of mere "suspicion."

Monday, June 13, 2016