Posts Tagged ‘Constitution’

I shared some satire about gun control last month, but the left’s campaign to exploit the horrible Parkland shooting seems to have instigated a bunch of new material.

So let’s have some weekend fun.

We’ll start with this humorous image from Reddit‘s libertarian page that actually does a good job of showing that gun control is pointless because criminals don’t care about laws.

This next image, also from Reddit, resonates with me because I’ve had many conversations with leftists who genuinely think a “semi-automatic rifle” is the same as a machine gun.

Or that “assault weapons” are somehow more lethal hunting rifles.

Though the gun-control crowd doesn’t seem to care even when you point out that their talking points are nonsense.

This next image arrived in my inbox a few days ago. I imagine the women calling the cops also failed this IQ test.

Next we have an apparently genuine sign from one of the student protests against civil liberties. Astoundingly, this girl doesn’t realize that she has everything wrong. The White House is filled with armed personnel and her school is the gun-free zone.

And we know from this cartoon whether bad people prefer unarmed victims. I guess we’ll call the student Exhibit A in the case against government-run schools.

This next item isn’t humorous, but I’m including it solely because I hope it’s a true story rather than an urban legend. If anybody knows, please share details in the comments section.

I like this next item because libertarians seem to be the only ones who value both the 1st Amendment and 2nd Amendment.

Given how California has drifted so far to the left, this next joke my turn into reality at some point. Well, even they’re not that foolish, but I can’t help but hope it might happen.

Last but not least, this item from Reddit‘s libertarian page does make me wonder about my left-wing friends. They despise Trump, yet they want to citizens to be disarmed.

Wow. Reminds me of this image.

P.S. You can still cast a vote in the online poll to identify the most important reason to defend the Second Amendment.

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I have a special page to highlight honest left wingers, and I’ve acknowledged several who have confessed that gun control is misguided.

A columnist for Vox also is honest. Dylan Matthews starts by acknowledging that the standard agenda of the anti-gun movement is pointless.

Congress’s decision not to pass background checks is not what’s keeping the US from European gun violence levels. The expiration of the assault weapons ban is not behind the gap.

But don’t get your hopes up that Matthews is on the right side.

His problem with the incremental ideas is that they don’t go far enough.

What’s behind the gap, plenty of research indicates, is that Americans have more guns. …Realistically, a gun control plan that has any hope of getting us down to European levels of violence is going to mean taking a huge number of guns away from a huge number of gun owners. …And here’s the truth: Even the most ardent gun control advocates aren’t pushing measures that could close the gap. Not even close. …Obama’s plan to tackle gun violence focused on universal background checks for gun sales, banning assault weapons again, and increasing criminal penalties for illicit gun traffickers. That’s nowhere near as dramatic as taking…America’s guns off the street.

I obviously disagree, but I give him credit for honesty. Unlike other leftists who privately share the same ideology, Matthews is open and honest about his desire to eviscerate civil liberties.

Even if he understands it’s not going to happen any time soon.

…large-scale confiscation look like easily the most promising approach… Large-scale confiscation is not going to happen. That’s no reason to stop advocating it.

So I applaud Matthews for not hiding his true desire. Just like I applaud leftists who openly admit that they want 90 percent tax rates or who freely confess that they think all our income belongs to government.

I think they’re all profoundly misguided, but that’s a separate issue.

Now let’s briefly contemplate what would be necessary for Mr. Matthews to get his wish of total gun confiscation.

Reason produced a mocking “five-step” video on the near-impossible actions that would be needed to achieve that goal.

But the first three steps in that video were about how difficult it is to amend the Constitution and I don’t think that’s what the left has in mind. If they ever get to the point of trying to ban guns, presumably it will be after a leftist President has put a sufficient number of doctrinaire Ruth Bader Ginsburg clones on he Supreme Court. In which case, they will simply pretend the 2nd Amendment doesn’t say what it says.

And if that happens, then presumably it will be easy to envision the fourth step, which is legislation prohibiting private ownership of firearms. After all, does anybody doubt that this is what Chuck Schumer and Nancy Pelosi actually would prefer?

But I fully agree that the fifth and final step – actually confiscating guns – would be extremely difficult.

There was a poll on this issue back in 2013 and it’s worth noting that respondents, by a 3-1 margin, said they would defy such a law.

I oscillate between being proud about the result and being disappointed that the margin isn’t 10-1 in favor of defiance.

Regardless, the takeaway from this result is that there would be pervasive and ubiquitous civil disobedience.

Moreover, it goes without saying that the people who obeyed such a fascist law would not be the criminals. So the net effect of such legislation would be an unfortunate shift in the ratio of good gun owners and bad gun owners.

P.S. Which is sort of the point of this satirical comparison between Chicago and Houston.

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It’s been several weeks since the awful tragedy in Parkland, FL, where 17 students were killed by an evil loser. Since I written several times about the utter impracticality of gun control, and since a growing number of honest liberals (see here, here, here, and here) also acknowledge that such laws are ill-advised, I didn’t think another column would be necessary.

However, the controversy isn’t going away. Left-wing groups are using some of the students as props in a campaign to push restrictions on private gun ownership.

So I decided to take part in a four-person debate on the issue for France 24. Needless to say, I was the only pro-Second Amendment person on the show (it was 4-1 against me if you include the moderator). You can watch the entire 45 minutes by clicking here, but you can get a good idea of the one-sided nature by simply watching this excerpt from the introduction.

Here’s the first question I fielded, which gave me a chance to knock our unprincipled President.

But more importantly, I noted that gun control doesn’t succeed because ordinary Americans are very diligent about protecting their constitutional rights.

This next segment gave me an opportunity to make several points.

  • The silliness of banning “scary looking” rifles when there are hundreds of millions of other weapons that work the same way.
  • Democrats have rallied behind truly radical legislation targeting all semi-automatic weapons (knowing that non-gun people don’t know what that term means, I used “non-revolver” as a synonym, but I admit that probably isn’t any better).
  • Gun bans are especially absurd in a world with 3D printers.
  • Censorship would probably be effective in reducing mass shooters, but I don’t want to repeal the First Amendment.
  • Rising levels of gun ownership are correlated with lower levels of crime.

By the way, none of the other guests ever tried to refute any of my points. Check the full video if you doubt me.

I also was asked about private companies restricting gun sales.

And since I believe in freedom of association, I said that was their right, even if such steps are both futile and bad for business.

In my final segment, I noted the good news that states are liberalizing gun laws, while also pointing out that global evidence also shows why gun control is a bad idea.

And you’ll notice I took another shot at our unprincipled president. Our Constitution is not a pick-and-choose document.

So what’s the practical impact of all this?

Gun-control proposals generally fall into two categories. Some politicians go after the “military-style” weapons, which is empty posturing that will no (positive) impact on crime. I wrote about this issue in the past, and you can click here and here for added info on the failed 1994 ban.

Or they go for sweeping gun bans and confiscation. Which, if ever enacted, would lead to widespread civil disobedience.

So we know that’s not the answer.

But what is the right approach? As I noted in the interview, there probably is no complete solution.

That being said, let’s dig into the issue of whether teachers and other school personnel should be allowed to carry concealed weapons are a last line of defense of nutjobs.

Here’s  story on the issue from Kentucky.

Teachers could soon be carrying concealed guns inside schools in Pike County under a proposal that was preliminarily approved Monday evening by the Pike County School Board. The unanimous decision…was prompted by multiple school shootings in recent weeks… Schools Superintendent Reed Adkins said he hopes the board will give final approval within two to three weeks, and to have armed staff in schools by fall, if not sooner. …State Sen. John Schickel, R- Union, has introduced Senate Resolution 172 that would urge boards of education to allow teachers and other school personnel to carry firearms for their own protection. …Multiple mothers of Pike County students urged quick action Monday to provide schools with some type of security, saying their children have been scared to attend school.

And we also have a news report from Colorado.

One of the first school districts in the state of Colorado to implement such a policy was in eastern El Paso County… A decision made in hopes of preventing another school shooting here at home and more than a year later, most people are grateful this was put into place. “Our school’s pretty much a model for school safety,” Terry Siewiyumptewa, a parent said. …”Our staff members, it could be 100 percent, are armed and are here to protect and keep our students safe,” Dr. Grant Schmidt, Superintendent for Hanover School District 28 said. Now, teachers, administrators, custodians and even bus drivers can all volunteer to conceal carry in school… “We need safe schools and our school is providing us what we’ve asked for,” Siewiyumptewa said. …”The only way to stop a bad guy with a gun, is a good guy with a gun,” she said. …Students we spoke with say it has added an extra level of comfort. …Dr. Schmidt says he’s been getting calls from other school districts across the country all year, wanting to know how they put this into place, asking for guidance, research and other documents to use as a model.

Unsurprisingly, Texas is another example.

…at Argyle High School, the..teachers are packing handguns. A sign outside campus warns: “Please be aware that the staff at Argyle [Independent School District] are armed and may use whatever force is necessary to protect our students.” …In about two dozen states, including California, schools can allow staff to carry guns on campus, although some require concealed-carry licenses, according to the National Conference of State Legislatures. …Officials at Argyle and other districts say the policies deter shooters and provide peace of mind, and that other schools should follow their lead. Scores of Texas school districts allow teachers to carry arms. …”It’s essential to keep us safe,” said Lizzie Dagg, 18, Argyle senior class president, who spent part of lunch Thursday signing a banner expressing sympathy to Parkland students. …history teacher Sharon Romero…said. “I feel safer coming to work than a lot of other teachers in this country do.” …Argyle High Principal James Hill, who has three children in the school system, was skeptical about the policy when he was hired in 2015, but said, “Now I’m a believer.” …he said of school shootings. “… I want to give our kids a fighting chance.”

Here are two maps from the article, showing who is allowed to have guns in a school. Here’s the map for the general public.

And here’s the map for government employees.

Amazingly, there is an outpost of common sense in California.

One California school district has voted to allow staff members to carry guns on campus. The district says the policy was put in place to ensure the safety of students in case there is an active shooter situation. …Kingsburg High School District, near Fresno, is just the second district in the state to allow concealed weapons at school buildings.

Even the New York Times has noticed this growing trend.

For all the outcry, though, hundreds of school districts across the country, most of them small and rural, already have. Officials…do not see the weaponry scattered through their schools as a political statement, but as a practical response to a potent threat. …At least 10 states allow staff members to possess or have access to a firearm on school grounds, according to an analysis by the Education Commission of the States. And local districts have varied their approach to arming educators — in Ohio, guns are kept in safes; in Texas, they can be worn in holsters or kept in safes within immediate reach. …In Texas, some public school systems have been quietly arming teachers and administrators for more than a decade.

This part of the story is very powerful.

Sidney City Schools was shaken by the slaughter of 20 first graders and six staff members at Sandy Hook in 2012. In the following days, Sheriff Lenhart presented Mr. Scheu with an equation: Every 17 seconds after the first shots are fired and the first 911 call is made, somebody gets hurt or dies. “Even in the best-case scenario, we could get here in four to five minutes,” Sheriff Lenhart said. “You do the math.” …Sheriff Lenhart…led what he calls a “layered” approach to school security and a “conservative” approach to arming teachers in the 3,400-student school district. The district spent about $70,000 on safes, bulletproof vests, cameras, guns, radios and ammunition…negligible costs for a school district with a $36 million budget… there’s a secret group of 40 educators — teachers, principals, custodians, secretaries — called a “first responder team” that can retrieve firearms in under a minute.

Bureaucrats weren’t happy about this development, but guess who is pleased?

The measures here met some opposition at first, from the town’s teachers union and police chief, who were concerned about gun safety. …Nicki New, the parent of three students in Sidney City Schools, said she felt safer dropping off her children knowing there were staff members equipped to respond to a parent’s worst nightmare.

Does that guarantee safety? Nope. Is it possible a teacher might shoot an innocent person in the stress and chaos of an active-shooter situation? Yup. There are no sure-fire, cost-free solutions to this horrible problem. It’s all about the policies that will improve the odds of good outcomes and reduce the likelihood of bad outcomes.

But here’s my bottom line. If my kids were still young and some miserable excuse for a human being came into one of their schools and started shooting, there’s no question that I would want some of the teachers to be armed.

Moreover, ask yourself whether a nutjob shooter is more likely or less likely to target a school with armed teachers. Like other mass shooters, they almost universally wreak their havoc in so-called gun-free zones.

Why? Because they know that simply means there are no good people with guns who can fight back.

I’ll close with one final observation. Teacher unions are controlled by leftist ideologues and claim that it’s a bad idea to allow armed teachers. They’re wrong, but the really preposterous part of their argument is that teachers shouldn’t be forced to carry guns.

But nobody is suggesting that. Instead, it’s an option for teachers who are prefer fighting to cowering in a corner waiting to be shot.

And lots of teachers don’t like the latter option, as indicated by this story in the Washington Examiner.

A sheriff in Ohio has already started the process of training school personnel on how to carry a concealed weapon, and predicted on Friday that hundreds would soon be trained and ready. …”While our gov still debates what 2 do we will have trained over 100 school personnel by Saturday,” he added. …Sheriff Jones said his offer to train teachers has been met with an overwhelming response. On Tuesday, he said he cut off requests at 300.

Makes me proud of America’s teachers. Their union stinks, but three cheers for the rank and file.

P.S. Since I’m a fiscal wonk, I rarely get to publicly pontificate on gun rights. Here’s my only other interview on the topic.

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I wrote two days ago about a jury correctly voting to acquit a Swiss banker who was being prosecuted (and persecuted) by the government. The jury presumably recognized that it’s not the responsibility of foreign national living in outside the U.S. to enforce our bad tax law.

My support for that jury has nothing to do with my admiration for Switzerland, my support for financial privacy, or my opposition to excessive taxation.

Instead, I was motivated by the principle that borders should limit the power and reach of government. And this principle is a two-way street. I also don’t want foreign governments to have carte blanche to impose their laws inside the United States.

I’m impressed that ordinary jurors apparently understood that principle better than policy makers in Washington.

But that’s not the only evidence for the wisdom of jurors.

Here’s another report on jury nullification in action.

A jury delivered an extraordinary blow to the government in a long-running battle over the use of public lands when it acquitted all seven defendants involved in the armed occupation of a national wildlife refuge in rural southeastern Oregon. …The Portland jury acquitted Bundy, his brother Ryan Bundy and five others of conspiring to impede federal workers from their jobs at the Malheur National Wildlife Refuge, 300 miles southeast of Portland. …Even attorneys for the defendants were surprised by the acquittals. …Federal prosecutors took two weeks to present their case, finishing with a display of more than 30 guns seized after the standoff.

But that was just the start because another trial was scheduled for Nevada.

U.S. District Judge Anna Brown said she could not release Bundy because he still faces charges in Nevada stemming from an armed standoff at his father Cliven Bundy’s ranch two years ago. …Daniel Hill, attorney for Ammon Bundy in the Nevada case, said he believed the acquittal in Oregon bodes well for his client and the other defendants facing felony weapon, conspiracy and other charges.

And what happened at that second trial?

Hold off on that question for a moment, bucause some of Bundy’s allies were given their day in court. The Las Vegas Sun reported on another outbreak of jury nullification.

A federal jury in Las Vegas refused Tuesday to convict four defendants who were retried on accusations that they threatened and assaulted federal agents by wielding assault weapons in a 2014 confrontation to stop a cattle roundup near the Nevada ranch of states’ rights figure Cliven Bundy. In a stunning setback to federal prosecutors planning to try the Bundy family patriarch and two adult sons later this year, the jury acquitted Ricky Lovelien and Steven Stewart of all 10 charges, and delivered not-guilty findings on most charges against Scott Drexler and Eric Parker. …”Random people off the streets, these jurors, they told the government again that we’re not going to put up with tyranny,” said a John Lamb, a Montana resident who attended almost all the five weeks of trial, which began with jury selection July 10. …The current jury deliberated four full days after more than 20 days of testimony.

So how did the government respond?

The second Bundy trial won’t even take place. As David French explained in a column for National Review, an Obama appointee threw out the case, thus saving a jury from another chance for nullification.

…a federal judge, Obama appointee Gloria Navarro, dismissed the federal government’s criminal case against Bundy and two of his sons on the basis that the government was guilty of “flagrant misconduct” in the trial. Its conduct was so “outrageous” that “no lesser remedy” than dismissal with prejudice “is sufficient.”

And why did the Judge make that decision?

In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage. …The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes? Bundy’s case teaches a number of valuable lessons. We cannot presume the government’s virtue. Sometimes even wild tales are true. And every American — from the angriest antifa activist to the leader of “Y’all Qaeda” — is entitled to the full protection of the United States Constitution.

Jim Bovard, in a column for USA Today, opines on the broader implications.

…federal judge Gloria Navarro declared a mistrial in the case against Nevada rancher Cliven Bundy and others after prosecutors were caught withholding massive amounts of evidence undermining federal charges. This is the latest in a long series of federal law enforcement debacles that have spurred vast distrust of Washington. …The Bundys have long claimed the feds were on a vendetta against them, and 3,300 pages of documents the Justice Department wrongfully concealed from their lawyers provides smoking guns that buttress their case. …In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. …Until the feds cease wrongfully abusing their targets, there will be no rebound in trust in Washington. If the Trump administration cannot rein in renegade federal prosecutors, the president should cease-and-desist any and all claptrap about “draining the swamp.”

In other words, so long as there are some bad apples in the world of law enforcement (and, more broadly, in positions of power in government), jury nullification is a bulwark against abuse by the state.

Incidentally, I’m not implying Bundy and his pals are heroes. Yes, they’ve been mistreated, but they also seem to think they have a right to treat government land as their land. Which is why I think the real solution is privatization of the excessive government holdings of land.

Let’s now zoom out and look at three good pieces about jury nullification in Reason, starting with a column by J.D. Tuccille.

…jury nullification—acquittals of defendants who jurors believe did violate the law but don’t deserve punishment, either because of specifics of the case or because jurors oppose the law in question—isn’t always obvious. …But, as with much of what jurors do, nullification is important and potentially powerful. …Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges, …Jurors who go about their business without revealing their motivations are immune to punishment, so keeping your mouth shut is just smart, even if it leaves the rest of us in the dark.

He provides an example of a jury slapping down an absurd prosecution.

…it’s more common to see cases like the rapid acquittal of an Ohio machinist who was arrested for making what Bureau of Alcohol, Tobacco, Firearms, and Explosives agents claimed were firearms noise suppressors (so-called “silencers”) without a license. …He claimed his products were actually unregulated muzzle brakes and that the government’s “expert” had no idea what he was talking about. Whether the jury believed the machinist, or whether they thought it was ridiculous to threaten a man with producing items that can easily be made on a home workbench and that lawmakers at the state and federal level are considering deregulating, is something we’ll probably never know. …Either way, they likely concluded that they were carrying out their responsibility to do justice and protect defendants from government overreach. Because, ultimately, jury nullification is just an extension of the jury’s role as a check on the state—whether prosecutors are applying law badly, or just applying bad law.

It’s not surprising to learn that the government does not like jury nullification.

But what is shocking is that the state is willing to imprison people for exercising their rights to free speech by informing potential jurors about nullification.

Here’s some of what Jacob Sullum wrote.

…a Michigan judge sentenced a local activist to eight weekends in jail, plus $545 in fines, 120 hours of community service, and six months of probation, for passing out jury nullification pamphlets in front of the Mecosta County courthouse. Keith Wood, a former pastor and father of eight, was arrested in November 2015 and convicted last month of jury tampering, a misdemeanor punishable by up to a year in jail. …Wood’s lawyer, David Kallman, who plans to appeal the conviction, argued that distributing the pamphlets, which contained general information about jurors’ rights, was protected by the First Amendment. He emphasized that Wood never discussed Yoder’s case with passers-by at the courthouse. …After Wood’s arrest, Mecosta County Prosecutor Brian Thiede said the FIJA pamphlet is dangerous because “we would have a lawless nation if people were to vote their conscience.”

The last sentence is the key. Notwithstanding the fevered statement of Mr. Thiede, we would not have a “lawless nation.” Jurors have no problem convicting those who assault, harm, kill, steal, and rape.

Nullification is a check on bad laws and/or bad actions by government. And that’s a good thing.

Let’s close with another piece by Tuccille, which has two very encouraging examples. We’ll start in Texas.

…El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he’s no fan of drug legalization, Allen says it’s a waste of his officers’ time to put hours into an “an arrest that has no end result of a conviction because of jury nullification.” This is only the latest evidence that rebellious jurors are putting limits on how badly government officials can treat the rest of us. …”Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage,” wrote Rice University’s Prof. William Martin… But jurors are…doing just that often enough that the El Paso Police Chief sees no point to making arrests that have “no end result of a conviction because of jury nullification.”

And finish with Georgia.

In Laurens County, Antonio Willis faced up to five years in prison for selling the equivalent of a few joints to an undercover cop. The cop, “who switched into an exaggerated Hispanic accent straight out of Cheech and Chong when dealing with suspects,” according to Bill Torpy of the Atlanta Journal-Constitution, kept pestering Willis for drugs while promising to hook the unemployed man up with a construction job. …the jury acquitted after just 18 minutes of deliberations. “A jury in Middle Georgia returned a Not Guilty verdict in a marijuana sale case despite the evidence,” retired sheriff’s deputy Tom McCain, now executive director of Peachtree NORML, approvingly commented after the trial. “The verdict can be nothing other than Jury Nullification.”

The moral of the story is not that jury nullification is a great thing. It’s only a second-best solution to the real problem of bad laws (exacerbated occasionally by bad prosecutors or bad cops).

But so long as bad laws (or incomprehensible laws) exist and government officials sometimes act dishonorably, we should support juries being the last line of defense for persecuted citizens. Remember, a tough-on-crime policy is only good if laws are just.

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The libertarian approach to crime is both simple and sensible.

  • First, only activities that harm other people should be against the law. So get rid of laws against drugs, gambling, cash deposits, and other victimless crimes.
  • Second, make sure that government behaves properly and respects constitutional rights while investigating and prosecuting criminality.
  • Third, impose appropriate punishment on those properly convicted of harming other people.

In other words, be “tough on crime,” but make sure there’s a morally just system.

And I should consider adding a fourth principle, which is that laws shouldn’t be a way for governments to pad their budgets with unfair fines and other cash penalties.

With this in mind, let’s explore a practical example of why it’s a good idea to make sure governments respect due process and civil liberties. I wrote last year about how the Justice Department wrongly asserted that it has the right, without following due process, to reach outside America’s borders to obtain personal information.

In part, the bureaucrats at DOJ are exploiting old law that doesn’t provide clear guidance on how to deal with modern electronic communication and data storage. Fortunately, that’s something that should be easy to fix.

Veronique de Rugy of the Mercatus Center correctly identifies the key issue in a column for Reason., starting with the fact that courts fortunately are not giving the feds a blank check.

…the Justice Department…asserted that a U.S. search warrant should carry jurisdiction over the data of an Irish citizen being stored on a server in Ireland simply because it is owned by Microsoft, an American corporation. Thank goodness the federal appeals court has now rejected the government’s attempt… The outcome affirms a landmark defense of privacy rights against law enforcement overreach and clearly establishes that the U.S. government does not have jurisdiction over the entire world. It also removes a major threat to the competitiveness of U.S.-based multinational companies, which must operate under the privacy rules of the countries in which they operate. Many of those countries unsurprisingly take a dim view of U.S. government efforts to pry into the lives of their citizens.

But it would be good if lawmakers modified the law so that it reflects today’s world.

Members of Congress, however, shouldn’t count on either the courts or the Trump administration. Instead, they could address the fundamental issue. The root of the problem is a common one. A law—the Electronic Communications Privacy Act—was enacted in 1986 to address issues raised by the technology at the time, and Congress never bothered to update it despite significant advancements in the decades since. …This has also resulted in massive privacy blind spots—such as the ECPA’s considering emails held by a third party for over 180 days to be abandoned, allowing them to be accessed with a simple subpoena instead of a judge-issued warrant. Also of concern is that the process for working with foreign governments when investigations cross jurisdictions—through mutual legal assistance treaties, or MLATs—has been seen by officials as too cumbersome to pursue. Excessive bureaucratic red tape, in other words, has encouraged investigators to engage in a troubling power grab.

And there was legislation last Congress to address these problems, with a new version already introduced in the new Congress.

…a bill, the International Communications Privacy Act, that sought to resolve both of these issues. It would have updated privacy rules to acknowledge modern technological reality by doing away with such silly provisions as the 180-day rule. It also would have streamlined MLAT procedures to make international cooperation more practical. Another bill, the Email Privacy Act, was just reintroduced in the current Congress and would also update the ECPA.

Amazing the House already has approved the legislation.

The House of Representatives today approved by voice vote the Email Privacy Act (H.R. 387) to protect Americans’ privacy and public safety in the digital age. …a statement from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) applauding passage of the bill. …“The U.S. Constitution protects Americans’ property from unreasonable searches and seizures and we must ensure that this principle continues to thrive in the digital age. …As technology has far-outpaced the Electronic Communications Privacy Act of 1986, the Email Privacy Act modernizes this decades-old law to establish a uniform warrant requirement to acquire stored electronic communications in criminal investigations. These updates to the law will better safeguard Americans’ constitutional rights while also protecting law enforcement’s ability to fight crime.  As the House again has overwhelmingly approved this bill, it’s time for the Senate to take up this bipartisan legislation and send it to the President’s desk to become law.”

The tech community is happy about this progress, though it’s also concerned the Senate once again will be the stumbling block.

…the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. …It’s great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. …the fact that they’re willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won’t try to muck it up again.

I guess we’ll see whether there’s progress this year or next year.

In the meantime, let’s hope that lawmakers are guided by the three principles of good criminal justice policy.

P.S. And if politicians fail to follow those principles, then citizens should not feel obliged to follow unjust laws, (and hopefully their peers will back them up by practicing jury nullification).

P.P.S. Since courts almost always grant search warrants, I’ve never understood why law enforcement officials want to get around this constitutional principle. Moreover, I’ve never seen any evidence that the fight against real crime somehow is compromised by having to comply with the 4th Amendment. So now, perhaps, you’ll understand why I’m willing (albeit only on one occasion) to side with Ruth Bader Ginsburg over Clarence Thomas.

P.P.P.S. If there was a prize for undermining the Bill of Rights, Obama probably would have it on his mantelpiece.

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One of the big challenges for libertarians is that we understand “public choice theory.” In other words, we know that people attracted to government will have both the incentive and the power to do bad things, so our quandary is how to give government the authority to provide so-called public goods without sowing the seeds for an oppressive Leviathan state.

Our Founding Fathers thought they solved this problem by drafting and ratifying a constitution that placed firm limits on the power of government. Sadly, that system largely broke down in the 1930s and 1940s as the Supreme Court ceded its role of protecting economic liberty (with John Roberts a few years ago providing the icing on the cake of untrammeled government power).

That’s the bad news.

The good news is that the judicial branch has done a somewhat better job of protecting personal liberty. Indeed, with the courts leading the way on certain issues (such as whether governments can persecute people for being gay), we may even have more personal liberty than the Founders intended.

Speaking of personal liberty, one of the thorniest challenges is that we want government to fight crime, but we also want to make sure that it doesn’t have the power and authority to trample individual rights.

That’s one of the reasons the Founding Fathers gave us a Bill of Rights that protects our right to a speedy trial, protects us from double jeopardy, and gives us the right to remain silent. And the Bill of Rights also protects us by requiring governments to get judicial approval (search warrants) before snooping into out private property. And that’s the focus of today’s column.

And the case study for our discussion will be the way government is seeking to access electronic data without following proper procedures. Veronique de Rugy provides the background in her column for Reason.

The Electronic Communications Privacy Act was passed in 1986, when data storage was considerably more expensive and primitive. At the time, it was not common for data to be kept online for very long. As such, the ECPA considers emails held online by a third party for more than 180 days to be abandoned and thus open to access by law enforcement without a normal warrant. …Now that free online email hosts are commonplace and terabytes of cloud storage are available at little cost, the ECPA is a troubling anachronism. Today’s internet users expect their data to be protected from prying government eyes for as long as they choose to store it.

Amazingly, some politicians actually want to fix this problem.

There is a bill making its way through Congress that attempts to address these issues. It’s the International Communications Privacy Act. The bipartisan bill—introduced by Sens. Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev.—…would codify into law a simple and clear standard: A warrant should always be required to access private information from a third party. The reforms in the ICPA would move us away from the current ’80s drama. It also seems that the package could even move through Congress during a contentious election season because it safeguards consumer data while also acknowledging that there must be legitimate and accessible law enforcement tools to pursue digital evidence across borders.

By the way, this has become an issue in part because the courts have intervened to slap down overzealous law enforcement in a cross-border investigation,

…the 2nd U.S. Circuit Court of Appeals rebuked the Justice Department after a three-year legal battle with Microsoft, which hosted data for an Irish citizen being pursued by U.S. authorities. The data was being kept in a server located in Ireland, yet the U.S. government insisted it had jurisdiction to demand access just because the company that held it is a subsidiary of Microsoft, an American corporation. …ECPA…provides no authority for access to data held overseas. The government officials most likely made this overreach rather than go through the mutual legal assistance treaty, or MLAT, process—which would have enabled them to work with the appropriate overseas authority—because of the fact that MLAT procedures are also cumbersome and outdated.

The Hatch-Coons-Heller legislation deals with these issues by both requiring warrants but also improving the MLAT process, which is a win-win situation. Innocent people have their rights protected and governments have a better system for investigating potential bad guys.

Which helps to explain why a coalition of taxpayer organizations and free-market groups have embraced the proposed legislation.

The bill contains provisions that would protect the privacy of American citizens, promote cross-border data flow, provide adequate tools for law enforcement, and enhance the nation’s global trade agenda. …S. 2986/H.R. 5323 would require U.S. law enforcement agencies to obtain a warrant for the content of electronic communications stored with electronic communications service providers and remote computing service providers.  The legal framework will allow authorities to obtain the electronic communications of U.S. persons, regardless of where those communications are located.  …S. 2986/H.R. 5323 reforms the MLAT process and provides greater accessibility, transparency, and accountability by requiring the attorney general to create an online docketing system for MLAT requests and publish new statistics on the number of such requests. …ICPA strikes the right balance between the legitimate needs of law enforcement and the privacy of American citizens, while enhancing international agreements.

Having looked at a specific example of how to enable effective law enforcement while also protecting civil liberties, let’s now zoom out and consider the big picture.

One of the problems in our system is that there are too many laws. Not just too many laws, but laws that are capricious and impossible to understand.

This is why Harvey Silverglate wrote Three Felonies a Day to describe how normal, law-abiding people unintentionally commit crimes (that shouldn’t be crimes).

Here’s a video interview from Reason with Mr. Silverglate.

The bottom line is that when you mix capricious and impossible-to-understand laws with capricious and vindictive bureaucrats, you get horrifying examples of government thuggery.

We can start by getting rid of drug laws, anti-money laundering laws, and civil asset forfeiture laws.

Remember, if we want to fight genuine crime, it’s a good idea to have just laws.

P.S. And if we have fewer bad and needless laws, we’ll have less police abuse.

P.P.S. To close on a humorous note, President Obama’s approach to the Bill of Rights leaves much to be desired.

P.P.P.S. In reference to the public-goods/Leviathan-state quandary discussed at the start of this column, the anarcho-capitalists say the solution is to abolish all government and to allow markets to provide public goods. I’m glad there are scholars pushing this idea (and I certainly had lots of interesting discussions about this concept while in grad school), but given what’s been happening over the past 100 years, I doubt this will be a practical option in my lifetime.

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It sounds arcane and pedantic, but the United States has a democratic system of government but is not (or at least was not) designed to be a democracy.

A democracy implies that 51 percent of the people have the power to elect a government with unlimited powers to exploit 49 percent of the people.

The United States instead is a constitutional republic. That means very clear limits on the power of government. And very clear limits, as George Will has properly explained and E.J. Dionne never learned, on democracy.

The bad news is that constitutional limits on the size and power of government have been eroding. The drift in the wrong direction began with Woodrow Wilson and the so-called progressives, accelerated during the New Deal (ratified by the horrible Supreme Court decision in Wickard v. Filburn), and has intermittently continued in the post-World War II era.

The laughable news (in a sad way) is that some politicians are willing to openly display their ignorance on these matters.

The Washington Examiner reports on (what has to be) the year’s most remarkable example of historical and legal illiteracy.

A House Democrat said Wednesday that it “really bothers me” when people claim the U.S. Constitution was designed to limit the federal government’s power. …Rep. Jerrold Nadler, D-N.Y., said the founding document of the U.S. was designed for the “opposite” purpose. …”The Constitution was enacted to strengthen government power to enable central government to lay taxes and to function effectively…” said Nadler.


Talk about claiming that night is day and up is down.

Let’s look at the actual document. Article II of the Constitution makes the President the nation’s Commander-in-Chief, which obviously is important, but otherwise limits the office to an administrator role.

All law-making power is granted to Congress.

And if you read Article 1 of the Constitution, specifically the enumerated powers in Section 8, you’ll see the areas where Congress has the right to make laws. You get a very clear view that the Founding Fathers wanted very firm limits on the central government.

Those “enumerated powers” include fewer than 20 specific items, such as “coin money” and “maintain a navy.”

There’s nothing in there about a Department of Housing and Urban Development. Nothing about Medicaid.

And, notwithstanding the elastic anti-constitutional gymnastics of Chief Justice John Roberts, nothing about mandating the purchase of government-approved health insurance.

To be fair, there’s a tiny sliver of truth to Congressman Nadler’s argument.

Compared to the Articles of Confederation (in effect from 1781-1789), the Constitution did give more power to the central government.

But that simply meant that the central government had a very small amount of power compared to a tiny amount of power.

Since I’m a thoughtful and helpful guy, here’s something I created to help Congressman Nadler understand constitutional restraints on the power of government.

This is just a back-of-the-envelope estimate, so I openly admit that I don’t know where to place the current system on this spectrum. We’ve unfortunately traveled a long way on the path to untrammeled majoritarianism in the United States. But voters and politicians haven’t chosen to translate their ability into an all-powerful central government.

In other words, majoritarianism can lead to pervasive statism (i.e., voluntarily electing a communist or fascist government).

But there also are majoritarian systems such as Switzerland where people vote to limit government.

Likewise, monarchies can be benign, such as in the United Kingdom or the Netherlands. Or they can be forms of absolute rule akin to communism and fascism.

For purposes of today’s discussion, though, all that really matters is that both the Articles of Confederation and the Constitution were explicitly designed to limit the powers of the central government.

And while it may upset people in Washington, that means the federal government should be much smaller than it is today. Not only fewer departments, agencies, and programs, but also no involvement in underwear, college football, Major League Baseball, condoms, birth control, or the National Football League.

P.S. Yes, the 16th Amendment (sadly) gave Congress broad powers to tax, but that’s not the same as giving the federal government broad powers to spend.

P.P.S. Republicans have actually endorsed language implying that most of the federal government should be dismantled. I wish they were serious.

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