by Charles C.W. Cooke - Thursday, August 25, 2016
The Fifth Amendment to the Constitution says “no person shall ... be deprived of life, liberty or property, without due process of law.”
About half of our U.S. senators and congressmen don’t care anymore.
Close your eyes for a moment and imagine, if you will, that the United States were to abandon all of the sacred principles that its people once considered inviolable. Imagine that, instead of being bound by laws, judges and juries, the government was free to punish you based on nothing more than its own suspicions. Imagine that, instead of following the rules that are clearly laid out in the Constitution, agents of the state could merely write your name on a list and declare your rights forfeit. Imagine that, for daring to oppose this arrangement, you were publicly accused of siding with terrorists. And, finally, imagine that the president of the United States, the attorney general, the director of Homeland Security and almost half of all federal legislators were happy to acquiesce to the plan.
Now, open your eyes and prepare yourself for a nasty shock: If Washington, D.C., is left to its own devices, this is exactly what is going to happen. Passing this idea ... could lead not only to an unacceptable limitation on the right to keep and bear arms, but to the unraveling of the whole American order.
I am referring, of course, to a plan that is informally known as “No Fly, No Buy,” the purpose of which is to expand the federal government’s already questionable use of suspect databases and to take away the protection of the Second Amendment from anyone whose name is on the “terror watch list.” Since the terror attacks in San Bernardino, Calif., and Orlando, Fla., the effort to pass this idea into law has been a veritable obsession in some quarters of the gun control movement—an obsession that, if permitted to prevail, could lead not only to an unacceptable limitation on the right to keep and bear arms, but to the unraveling of the whole American order.
Advocates of the “No Fly, No Buy” proposal argue that anybody who the FBI suspects of terrorism is, by definition, “too dangerous” to buy a gun. Indeed, U.S. Sen. Harry Reid, D-Nev., a key champion of the measure, has gone one further, contending before the Senate that “there is no excuse for allowing suspected terrorists to buy guns.” President [Barack] Obama has asked rhetorically, “What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?”
If one doesn’t stop to think about it, this inquiry sounds reasonable. Who, after all, wants terrorists to arm up? But the devil, as usual, is hidden in the details, and to look more closely is to swiftly discover that Reid and Obama are not talking about people who have been convicted of a crime, or even about people who have been arrested, charged or served a warrant. They are talking about people who are merely “suspected”—that is, people whose names have been entered into a database. Is that how justice works in America now?
One would certainly hope not. To hear the bill’s advocates tell it, the threat of terrorism is now so acute that to insist upon evidence is too great a risk. But what of the risks inherent in abandoning America’s due process traditions? According to the ACLU, there are more than 800,000 people on the “terror watch list,” the vast majority of whom are either there by accident or are linked to no terror investigations whatsoever. Are we really to presume that they are all guilty? And, if not, are we to proceed with this plan knowing full well that hundreds of thousands of people will not only be denied their Second Amendment-protected rights at the point of sale, but that they will subsequently have no timely way of appealing their denials?
In 2014, the U.S. District Court for the District of Oregon ruled that the terror watch list was “arbitrary and capricious,” and that its use violated both the U.S. Constitution and the Administrative Procedure Act. Now, the executive branch hopes to use that list to regulate the Bill of Rights. There is a word for countries in which such arrangements are permitted, and it sure as hell isn’t “republic.”
Since the time of Magna Carta, free people have insisted that their government must possess no power to strip them of their liberties without recourse to due process. “No free man,” that document holds, “shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
You will notice that there are no asterisks attached to this declaration, nor is there a clause that obviates its protections in times of war or strife. There is only plain language and welcome clarity. The text of Magna Carta reads, “No free man,” not “Most free men”; it demands the “lawful judgment of his equals or by the law,” not “judgment of any kind”; and it lists in detail what is covered by its terms.
The Fifth Amendment is equally blunt. “No person,” that provision reads, shall “be deprived of life, liberty or property, without due process of law.” Again, there is no wiggle room in the text. Clear as day, the amendment says, “No person,” not “Some people”; it stipulates “due process of law,” not “secret FBI lists”; and it protects “life, liberty or property” as determined by the Constitution’s text.
By attacking these principles, gun controllers in Congress and in the White House are not only attacking the right to keep and bear arms, they are attempting to change radically how a free people may be legitimately deprived of their liberties. Or, put another way, in an attempt to gut the Second Amendment, they are striking at the heart of the integrity of the Fifth Amendment’s crucial “due process” clause. Yes, in this particular case, the target is guns, as the target was air travel beforehand. But, in principle, the proposal could be applied to any enumerated right. And that should worry everybody who cherishes their freedom.
By their nature, each one of our liberties can be abused as well as enjoyed. In America, we are proud that our Internet is open, that our homes are closed to arbitrary search, and that our pastors and rabbis and imams may preach as they see fit. But we also acknowledge that an open society is a vulnerable society, and that some among us will take advantage of the liberties that are protected in their name. If, with the aim of curbing abuse, the government were permitted to limit an unalienable right to those whom it had placed on its list, how long would it be before the practice spread to all the others? Could the state take away an individual’s laptop because his name had found its way into a database? Could it prevent him from speaking, from assembling or from going to church? Could it enter his home without a warrant, or quarter troops in his bedroom? Could it imprison him indefinitely? Clear as day, the amendment says, “No person,” not “Some people”; it stipulates “due process of law,” not “secret FBI lists …”
And if not, why not? After all, in the hands of Thomas Jefferson or of Martin Luther King, a free press is a salutary thing indeed—and yet when wielded by a would-be terrorist, it is a tool of discord, division and, all too often, destruction. If the “No Fly, No Buy” precedent were to be pushed into American law, one wonders how long it would be before the next Harry Reid took to the Senate floor to argue that anybody suspected of wrongdoing must “obviously” be prohibited from sending emails.
That the gun control movement cannot see this is a testament to its unyielding myopia—and, for that matter, to its tendency to remain oblivious to some ugly historical truths. Over the past few months, critics of “No Fly, No Buy” have been told that our fears are strictly hypothetical in nature. “Calm down,” we have been instructed. “Whatever you are worried about could not happen here.” Other advocates have been even more dismissive. “This is America!” they have explained. “The government here is not going to start throwing people it dislikes onto lists and denying them their rights arbitrarily.”
To those who are unfamiliar with recent American history, this may sound reassuring. To everyone else, though, it should ring extremely hollow. For a start, the federal government has been caught placing all sorts of innocent people onto its lists: among them, Fox News’ Stephen Hayes, CNN’s Drew Griffin, actor David Nelson, U.S. attorney James Robinson, former Sen. Ted Kennedy and, ironically enough, one of the loudest voices in favor of the “No Fly, No Buy” bill: civil rights icon Rep. John Lewis. Moreover, given America’s tragic record on race, one would expect a little more humility from the powers that be.
What do I mean by that? Well, I mean that anybody who hopes to give the state a veto on individual rights will have to contend with how those vetoes have been abused in the past. In the 1950s, sheriffs in the South and beyond used their states’ “may-issue” concealed-carry regimes to discriminate against blacks—and, in particular, against blacks who were rebelling against the status quo. As UCLA’s Adam Winkler has noted, there is no doubt whatsoever that Martin Luther King “met the requirements of the law” in his home state of Alabama, and that he should have been issued a concealed-carry permit as a result. And yet, tragically, his application as rejected by a police force that habitually “used any wiggle room in the law to discriminate against African-Americans.” By attacking these principles, gun controllers in Congress and in the White House are not only attacking the right to keep and bear arms, they are attempting to change radically how a free people may be legitimately deprived of their liberties.
And why does this matter? It matters because history has a nasty tendency to repeat itself, and because government lists, once established, have a nasty tendency to metastasize. It matters because human beings are flawed. It matters because men in power can be ambitious and jealous and petty, just like anybody else. Sometimes our public officials do the right thing, sometimes they don’t; but in all cases, they must be overseen by others and reined in by the rules, lest their authority rush to their heads. It is for these reasons—among others—that we have a thorough system of due process; it is for these reasons that we do not permit mere suspicion to ruin men’s lives; and it is for these reasons that we write our laws down and that we require second and third and fourth opinions. We are clever and knowledgeable in our modern age, but we are not fundamentally different from our predecessors.
When Reid and his allies tell us that we have no choice but to abandon the safeguards that have been built into the system, they are essentially informing us that it is time to give up. Worse still, they are proposing that we react to acts of terrorism by conceding that we are terrorized. When the reports of an outrage begin to trickle in, our politicians are fond of telling us, “We will stand resolute.” But how many of them, one wonders, have been tempted to sign on to bills such as “No Fly, No Buy”? Too many, if the congressional record is to be believed.
Crises are always dangerous for the lovers of liberty, especially in our sensationalist, media-driven era. America is strong, and she is full of brave men and women. But, like all great nations, she is also fragile. The great folly of all empires has been the belief that tradition is impregnable, that the national order can survive without a solid defense, and that those who would tug fatefully at the seams can do so without the threads fraying until they break. Well, it isn’t, it can’t, and they will not do so for long. It is time to hold the line, and hold it well.“No Fly, No Buy”? What nonsense. No due process, no republic.
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