In response to the mass murder in Orlando, muskets were eliminated from the performance of Hamilton at the Tony awards. Whether this made a difference or was merely an opportune gesture of support is unclear. But whoever made the decision was entitled to do so. That muskets were part of the birth of a nation, that Hamilton was killed by a gun shot by Aaron Burr in a duel, however, is historical fact. Optics can’t change history, even if feelings are at risk.
The New York Times has been a desperate supporter of gun control, and after every tragedy where a gun is used, promotes its position. Like the Hamilton folks, it’s entitled to its position. That the editorial board is sincere in its belief that guns are an epidemic that must be stopped is beyond question. Having discussed this with some folks there, I know them to be sincere and passionate, all with the best of intentions.
But to reach the overarching goal of limiting, if not eradicating guns, there is a willingness to turn a blind eye to reason and law. Worse still, they are prepared to sacrifice other rights to curtail the hated Second Amendment right to keep and bear arms. The sacrifice of rights that aren’t on the front burner for those that are has become a fairly common theme at a time when critical thought has given way to the strongest feeling of the moment.
An op-ed by UCLA lawprof Adam Winkler proposes one of the most dangerous, outrageous and flawed arguments offered. Worse still, it’s grounded in pseudolegal argument, of the sort that so many people find appealing because it achieves their desired end and has the surface gloss of seeming legal-ish. Agenda-driven academics were once shy about publicly selling their scholarly credibility to achieve their political goals. No more. There is no longer any shame in academics caught lying.
Winkler begins by pretending to assume the position of reasonableness, the middle ground.
THE massacre in Florida is a horrifying reminder that terrorists don’t need airplanes to kill scores of people: All they need are commonplace firearms. Gun-control groups are already issuing calls to do more to keep suspected terrorists from buying guns, while those against stricter gun laws say we shouldn’t deny people their constitutional rights on the basis of mere suspicion. They are both correct. But there is a solution.
Federal law bars felons, the mentally ill, drug addicts and people convicted of domestic violence misdemeanors from possessing firearms. Nothing, however, prevents a suspected terrorist from walking into a gun store and buying as many guns as he wants.
Both correct? Solution? Who doesn’t want a solution that would satisfy all interests, right? But then comes the sneaky trick, the phrase “suspected terrorist.” There are many other words he could have used instead, presumptively innocent American, Muslim, person who annoyed a cop, non-English speaking person, Japanese-American, even homosexual. Each of these was at some moment in history feared and/or loathed, and was a target for the loss of rights. Each was at some moment in history believed to be unworthy of constitutional rights.
Winkler goes on to suggest the justification for the villification of “suspected terrorists” by quoting Hillary Clinton and tacitly untethering rubric from reason.
Since the Sept. 11 attacks, the government has kept suspected terrorists from boarding airplanes by placing them on no-fly lists. Isn’t it time we also had no-buy lists? In a speech on Monday, Hillary Clinton, the presumptive Democratic presidential nominee, seemed to support this idea, saying, “If you’re too dangerous to get on a plane, you are too dangerous to buy a gun in America.”
The “no-fly” list, of course, is a fiasco. Its legal justification is that flying is a privilege, and hence the government can wrongfully deprive anyone it wants from the ability to fly. In contrast, the Second Amendment is a fundamental constitutional right. Conflating the two is shockingly dishonest, and when deliberately done by a law professor, can’t be excused by Hanlon’s Razor. It even rhymes, “no-fly list” and “no-buy list.” People love sloganisms that save them from the terrible burden of thinking.
But in the scheme of intellectual dishonesty, Winkler is just getting started.
Does this mean we should drop the idea of a no-buy list? No. It just means we need one that is fair.
One promising model can be found in Fourth Amendment law on search and seizure. The Constitution allows the government to invade our privacy by, say, wiretapping our telephones, for law enforcement purposes in limited circumstances. First, the prosecutor must have probable cause, or sufficient evidence of wrongdoing. Second, the search must be approved by the courts.
This is where Winkler sells his soul cheap. The Fourth Amendment provides the limitation upon the government’s ability to search and seize, which used to be the Warrant Clause, and his since morphed into reasonableness because obtaining a warrant proved to be too much effort for cops. It expressly provides for the mechanism for the government to search and seize. There is nothing whatsoever comparable in the Second Amendment.
A model? Only if one knows absolutely nothing about the Constitution (which is pretty much most Americans), hates guns (which is pretty much all New York Times readers), and has no integrity (which is pretty much Adam Winkler). But it gets worse.
Congress should authorize no-buy lists but mandate that appropriate protections be put in place. If the attorney general believes a suspected terrorist should be added to the list, she should have to go to court first and offer up evidence. Only after concluding that the attorney general has probable cause should the court approve the denial of the suspect’s right to buy a gun.
This court proceeding, of course, would be secret. Although that denies the person included on the no-buy list the opportunity to rebut the attorney general’s evidence, we do the same thing every day with search warrants and wiretaps for criminal suspects. Our right to bear arms is no more fundamental than our right to privacy, and treating them similarly can help keep us safer from terrorists.
Secret lists, secret courts, but with the veneer of probable cause as if ex parte evidence hasn’t proven totally effective in achieving whatever the government wants, no matter how baseless. And never to see the light of day, such as would be the case under the Fourth Amendment at a suppression hearing. But then, there is the big lie, the one that permeates so many arguments that appeal to the public but are entirely false:
Our right to bear arms is no more fundamental than our right to privacy.
Propagation of the “right to privacy” claim is one of the most nefarious deceptions perpetrated, because it sounds so wonderful, and who doesn’t adore privacy, and don’t we have a right to whatever we want to have a right to? Except it doesn’t exist. We have a right to be free of unreasonable searches and seizures, because the Fourth Amendment says so. But there is no free-floating right to privacy, no matter how many times advocates scream there is, there is.
Many people who want desperately to see the end of killings such as happened in Orlando will latch on to anything they can, the life-preserver of their goals. And when that life-preserver is tossed by a law professor, someone with the attributed credibility of a scholar, they will buy whatever he’s selling.
Winkler is selling lies. Dangerous, destructive lies. Secret courts, outrageous excesses of government power, denigration of constitutional rights to pretend they legitimize the circumvention of other constitutional rights. And people will buy lies if they conform to their end goals. American history is replete with examples. But then, if muskets are removed from Hamilton, history ceases to matter.
Update: Are there any academics with the guts to call bullshit? Yes. Yes there is. Josh Blackman. Read his post. Just do it.