COMMENTARY: Heath Haussamen’s article on June 30, and Jeff Lahann’s followup article on July 5, are right on point regarding our citizens’ loss of due process and other constitutional rights in the pursuit of “security.” Benjamin Franklin is often cited as saying that surrendering our liberty in trade for increased security results in the loss of both.
While you and I may disagree on many of your “political” agendas, it is apparent to even casual observers that the political right, left, and center are increasingly coalescing around the concern, the fear, that the core values we all cherish are being subsumed by what President Eisenhower might have called the “military, contractor, security complex.”
Never-ending wars, spying, interceptions of personal data, suppression of free speech, the Patriot Act, warrantless seizures, no-fly lists, secret trials, reversing the burden of proof, endless over-criminalization, and “money laundering” laws that secretly track all personal finances all have a common thread: that state security trumps the individual liberties guaranteed each of us in the United States Constitution.
Every banana republic dictator cites national security as his secret police suppress opposition and free speech. Every demigod dictator, whether Adolph Hitler, some fascist mullah, Baby Kim, or Joseph Stalin, to name a few, demonize a disfavored minority, such as Christians, Jews, or blacks, or some imagined foreign threat, in their bid to consolidate state power at the expense of individual liberty.
Heath, you know that I wrote the unanimously-passed law that abolished civil asset forfeiture in New Mexico. That bill passed as a result of the efforts of an disparate alliance including the Rio Grande Foundation, the N.M. ACLU, House Judiciary Committee Chairman Zach Cook, Rep. Moe Maestas, the Drug Policy Alliance, GOP Senator Lisa Torraco, Democratic Senator Daniel Ivey Soto, and the leadership of both parties in the Legislature.
Nationally, an equally broad assortment of groups, such as Cato, ACLU, Koch, and the Institute for Justice, to mention a few, have provided statistics or spearheaded litigation. Ten other states have since followed our lead, and a reform bill is expected to be brought to the U.S. Senate floor soon.
I lecture and work pro bono all across the country to keep that ball rolling. The civil asset forfeiture system encapsulates the trend above: warrantless stops, lack of probable cause, no right to remain silent, no trial, no lawyer, appearance of impropriety and conflict of interest at all levels, reversal of the burden of proof, and no legislative oversight of the funds, to name a few.
When some rights are so cavalierly waived aside, which ones will be next?
After extensive research and study of original publications and documents, I am convinced that it was without doubt the intent of the writers of the Second Amendment that it was a personally possessed right. The U.S. Supreme Court has said so in Heller. But I, like virtually every citizen, get angry and frustrated when someone goes on a shooting spree. No one wants a crazy person, or a terrorist, or a criminal to own a gun.
But as is said, the devil is in the details.
Jeff Lahann is a mighty fine lawyer. As his billboard reads, ” Your best defense is a good lawyer.” Let me elaborate on what he might have meant: Checks and balances are the very core of our Constitution. Police, prosecutors, defense attorneys, the defendant, expert witnesses, and appeals courts, all have a critical role to play in arriving at that treasured goal of justice. Their checks and balances assure a more just result. In our political system, we know that we strive for the rule of law, not of the strong man.
When President Obama has one of his tantrums about the Congress not giving him what he wants as thus to justify unilateral action, I am reminded of a child having a fit in a sand box. Not getting what you want is not the same thing as the system not working.
Which leads me to the point of criticizing some politicians from both parties who are so anxious to cast aside the rights and due process granted each of us individually by our creator and as guaranteed by the Constitution. As the Las Cruces mayor said at the recent City Council meeting on gun-show background checks, “the citizens want us to do something.” (Apologies Ken if I paraphrased). He is right — as our security is felt to be threatened, we all want action.
But, remembering Mr. Franklin’s words, “doing something” is not an acceptable substitute for “doing something right and productive.”
Nameless, faceless bureaucrats deny citizens the right to travel. The “no fly” list is secret, how you got there is a mystery, and there is virtually no appeal process. There were no checks and balances in the process of putting your name on the list. There is no court to hear your grievance, no jury of your peers to weigh the evidence, and no appeals court to review mistakes.
And now some people propose to use this list to deny citizens their Second Amendment liberty. How about the First and Fifth amendments while we are at it? Oh heck, let’s just throw them all out in the name of security.
Others propose that any “crazy person” should have their gun rights taken away. But again, crazy is in the eye of the beholder. Where does eccentricity stop and crazy begin? Where does brilliant stop and crazy begin? Where does antisocial aloofness stop and craziness begin? How do you get put on a list, and how can you get taken off?
You know I do some legal work in East Europe. I hear the stories even now, of how in Soviet times, people “denounced” by informers for “antisocial” behavior were not always sent to Siberia. A large percentage were “treated” by the mental health system. We remember that after the Vietnam war, hundreds of thousands of South Vietnamese were sent to be brainwashed in “reeducation camps.”
I only mention this to emphasize that as Americans, I don’t think most of us are prepared to take away a person’s life and liberty without a proper due-process proceeding to determine one’s mental health. Who isn’t “crazy” or depressed from time to time over a divorce, a health issue, a car crash, or the loss of a job? Seeking therapy should not be an admission of craziness or lead to the loss of a constitutional right.
Another dangerous proposal is to prevent a gun sale if one has been “investigated” by the FBI. Hillary Clinton had better rush out and get her Ladysmith before that law passes! As a prosecutor, I have declined perhaps as many cases as I have pursued. That is a part of the system, the checks and balances as it were. Certainly, one can say that is part and parcel of the “presumption of innocence.” Is that another right we toss aside in the pursuit of “security?”
Instead of tending to fixing potholes or bettering our police department, the Las Cruces City Council spent a meeting recently seeking to change national or state gun laws. Be that as it may, they want changes made to the background check system. As it is, 70,000 criminals and prohibited persons were flagged by the background check list as trying to illegally buys guns last year, yet the Justice Department choose to only prosecute fewer than 100. Is the system falsely flagging innocent people? If not, why doesn’t DOJ start by prosecuting a significant number of the know violators before tilting at new windmills?
Interestingly, most of the mass shooters of the last few years could have legally bought guns anyway. Criminals don’t much follow the law anyway, do they?
And the Orlando shooter? By his own words, he was a fascist fanatic acting on behalf of a racist foreign theocratic army dedicated to destroying freedom of speech, religion, and such. He was a terrorist, a traitor, who might have resorted to a Molotov cocktail or fertilizer bomb to achieve his goals. Certainly the strict French gun control laws didn’t stop the murder of the Paris journalists. Nor do they stop terrorists and crazy people from attacking by truck as we discovered last week.
Make no mistake about it, the world is very dangerous now. There are barbarian elements in the world who live, and die to do us harm, and who hold no regard, actually disdain, for all of the rights and liberties of modern, enlightened society. There are armed predators, repeat violent felons, in our own communities who ought to be in prison and not out victimizing our citizens. The police, Border Patrol, FBI and others all need our support, and are owed our thanks, for their efforts to keep us safe. Citizens are justified in wanting to possess the means to defend themselves.
So the key is not to throw out the essence of what makes us great as a nation in the effort to defeat ISIS and others. Our Constitution will protect us, if we use it right. Less laws, less foolish regulations, less knee jerk rhetoric, and more thoughtful action will not only see us through, but will show the world why America is the great nation it is.
Brad Cates is an international business attorney and pecan farmer in Doña Ana County. He is also counsel to the N.M. House Judiciary Committee, and speaks, writes, and litigates pro bono around the U.S. on privacy and First Amendment issues. He has served as a federal and state prosecutor, and a four-term N.M. state legislator. He is currently the Republican candidate for district attorney in the Third Judicial District in Doña Ana County.