Eugene Volokh explains why the proposal to prevent people on the terror watch list or no-fly list from purchasing guns is probably unconstitutional.
But can a person be denied constitutional rights, not based on a past criminal conviction or even a restraining order issued in court under a “preponderance of the evidence” standard, but based just on the government’s suspicion?
The Feinstein proposal would prevent people from purchasing a gun if the Attorney General "has a reasonable belief that the [buyer] may use a firearm in connection with terrorism.” Volokh writes,
That’s a very low bar — denial of a constitutional right based on suspicion (albeit “appropriate[]”) about a person’s connections, and belief (albeit “reasonable” belief) about a person’s possible future actions. Indeed, most of the time this would come into play only as to people for whom the government doesn’t have proof of terrorist activity. If the government had proof, presumably the people would be prosecuted. (If the government has proof but isn’t prosecuting because it hopes that quietly watching them would help catch more or bigger fish, then barring gun purchases would be a bad idea, since that would alert the person to the government’s plans.)
I can’t see how that’s constitutional. And though the bill would have let the buyer go to court to challenge the attorney general’s decision, the attorney general would simply have had to show by a preponderance of the evidence that the two elements were satisfied — that the attorney general appropriately suspected the buyer and that she had a reasonable belief about what the buyer may do. Plus the evidence supporting the attorney general’s position might never be shared with the buyer, which may make it impossible for the buyer to fairly challenge it, or aired in open court.
The “no-fly” list itself can be criticized on these grounds; see this article at Reason (Scott Shackford) or the ACLU’s critique. Courts have been hearing challenges to that list.
But the problem would be even more serious when we’re dealing with the denial of an explicitly guaranteed constitutional right, and not just the denial of the admittedly very important ability to fly on airplanes. If you have a constitutional right to do something, the government has to do more than just provide the attorney general’s suspicion and speculation as a basis for denying you that right. This isn’t a supposedly modest, limited gun control measure. It cuts to the heart of the constitutional right itself.
Meanwhile, in addition to calling for gun control, the left is on alert for some wave of Islamophobic attacks that haven't occurred. That is what our nation's Attorney Genera is most concerned with. Let's not forget that the co-workers shot in San Bernardino had been so welcoming toward Syed Farook and his bride that they threw them a baby shower.David French writes about Loretta Lynch's seeming indifference to the First Amendment,
Lynch addressed the Muslim Advocate’s tenth-anniversary dinner and declared that she is concerned about an “incredibly disturbing rise of anti-Muslim rhetoric . . . that fear is my greatest fear.” Her greatest fear is — not terrorism — but a nonexistent Islamophobic backlash? ISIS has demonstrated that it can bring down passenger jets, strike the heart of a great Western capitol with urban assault teams, and inspire horrible carnage in California. We also know that ISIS has pledged to keep attacking the U.S. and possesses chemical weapons. Yet it’s politically incorrect speech that strikes fear into the heart of our attorney general.
What about blurring the distinction between speech and violence? Lynch is so serious about stopping Islamophobia that she’s sending a clear message to those who engage in “anti-Muslim rhetoric” — the Department of Justice is watching you:
When we talk about the First amendment we [must] make it clear that actions predicated on violent talk are not American. They are not who we are, they are not what we do, and they will be prosecuted.
And yet, there is no legally meaningful category of “action[s] predicated on violent talk.” Lynch spoke against rhetoric that “edges towards violence,” but the law obviously prohibits violent actions — she’s speaking in terms alien to the First Amendment. True threats are unlawful, and true “incitement” isn’t protected by the Constitution, but these are extraordinarily narrow legal categories. Is it not enough to declare that the Department of Justice will enforce the law and uphold the Constitution?
The First Amendment protects an enormous range of speech — even speech that’s anathema to the Obama administration. Americans are perfectly within their rights to not just condemn jihad but also to make sweeping and angry statements about Islam. If the administration disagrees with this speech, it’s free to make its own statements, but when it starts making up legal categories of problematic speech, it is getting disturbingly close to discarding the Bill of Rights.
This indifference to the First Amendment protections for freedom of speech is all a part of the left's indifference to quite a few of our protections under the Bill of Rights. They reject protections for political speech every time they call for more limits on campaign advertising. They reject free exercise of religion when it conflicts with their desire to get women free contraceptives. Of course, they reject Second Amendment rights and would like to limit those rights into oblivion. And they want to limit due process rights when it comes to investigating allegations of sexual assault on campuses. Now we see the proposal to deny people their Second Amendment right to buy guns based on a suspicion that they are terrorists without any due process. Time after time when rights are in conflict with the preferred policies of the left, they choose to limit those rights.
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A scary aspect about the San Bernardino attack is that this might be the model of terrorist attacks from now on. Instead of planning a massive 9/11-style attack, we could just see radicalized individuals making a choice to go kill people wherever they can. They might not need much, if any, contact from terrorists abroad just as Palestinians in Israel are committing random attacks on whomever they see as vulnerable. And now we're seeing similar sorts of attacks in London.
FBI director James B. Comey said Friday there is no indication that "these killers were part of an organized larger group or formed part of a cell. ... There is no indication they were part of a network."
Instead, the young couple fit a profile now distressingly familiar when looking at other recent acts of terrorism in the United States.
Malik and Farook were devout Muslims but not outwardly radical. They were members of a close-knit family with ties to the community. They built and stored crude pipe bombs in their home. And their attack apparently was inspired by, but not directed by, extremists abroad.
The couple thus had more in common with the Army psychiatrist who shot up a military facility at Ft. Hood, Texas, in 2009, and the North Caucasus brothers who set off homemade bombs at the Boston Marathon in 2013, than with the Belgian and French gunmen who killed 130 people last month in Paris.
In contrast with the Paris attacks, no evidence yet indicates that Farook and Malik were part of a larger conspiracy organized by Islamic State or another militant group, or were part of a bigger terrorist cell in California.
That helped them avoid detection before Wednesday's massacre. Indeed, the absence of warning signs has become a hallmark of recent domestic plots, analysts said.
Note that the Fort Hood attack is being included with other terrorist attacks instead of the ludicrous characterization as "workplace violence" that the administration tried to label it as. I guess it's a plus that the President finally admitted last night that it was terrorism. It's pretty sad that it's regarded as progress when the President labels terrorism as terrorism. The WSJ also writes on this theme. They add in another example that wasn't characterized as terrorism at the time when two men attacked an event featuring the cartoon drawings of Mohammad. There has been an effort to look at all these attacks as individual incidents instead of part of a pattern of terrorism.
In a report released just days before the California shootings, researchers at George Washington University tracked the evolution of Islamist extremism in the U.S. by combing through recent arrests, indictments and convictions for Islamic State-related activities. They found a sharp surge of jihadist activities in the U.S., when compared with the years after the 9/11 attacks.
“In the last few months and weeks we’ve seen online a number of ISIS supporters saying it is tough to travel to join the caliphate, but there are things you can do in the homeland,” said Seamus Hughes, a former official at the National Counterterrorism Center, and one of the report’s authors....
The risk of radicalization has increased, in part, due to better communications technology and widely available encryption tools. “This is the scary part: Technology is such that folks can have secure access to information and plans and have contact with folks located in combat zones in the Middle East,” said David Miller, a partner at Morgan, Lewis & Bockius LLP and a former assistant U.S. attorney in Manhattan, who worked on the first prosecution of a homegrown terrorist cell since the Sept. 11, 2001, attacks. “And then you have the technological ease by which people can get information on things like building explosives or how to encrypt communications.”
He added: “This is going to continue to be the challenge of our time.”
In his case, three men from suburbs of Toledo were convicted in 2008 of recruiting and training terrorists to kill American soldiers. Mr. Miller said they fed their radicalization with violent jihad videos they accessed on password-protected Internet sites and through relationships they cultivated online with terrorists in war zones.
I worry that our security efforts are focused on fighting yesterday's sort of terrorist attack instead of these homegrown terrorists. I don't know what the answer is, but I wish I had more confidence that we were prepared to fight off such attacks.
The President still seems to think that there is some inevitable movement of history that we must be on the right side of. History is not an animate force always moving towards a better tomorrow. Sometimes, terrible people triumph because good people don't do enough to stop them, not because they are on the right or wrong side of history.
Perhaps the oddest note in the President’s speech was toward the end when he claimed that the U.S. will defeat the jihadist threat because we are “on the right side of history.” History is made, not delivered as a birthright, and victory against killers has to be won. Islamic State has been gaining so much ground precisely because it has appeared to be winning. Mr. Obama has yet to show that he knows what it takes for the U.S. to win.
Charles C. W. Cooke ridicules the cynical instant response on the left to shootings such as San Bernardino. No matter the specifics of any one of these attacks, the call is for more gun control. It doesn't matter that any of the left's prescriptions on gun control would have done anything to have prevented that particular attack.
Oddly, none of these details mattered one whit. The pseudo-prayers continued without pause – their invocation: “Do Something!” — as did the hostility toward anybody who counseled prudence.
This was typical, for implicit in every pro-gun-control argument is the assumption that all Americans secretly agree with the need for the president’s favored reforms but that a small majority is just too recalcitrant – or, perhaps, evil – to admit it. It is for this reason that so many debates on the merits of stricter regulation proceed from the premise that gun control obviously works, rather than from the presumption that we do not really know what we should do. This is a shame. Not only is there conflicting evidence about whether new laws do any good at all (my view: they don’t), but the hackneyed “more guns, more crime!” arguments that we hear repeated ad nauseam are pretty much absurd on their face. Over the past 25 years, Americans have bought more than 100 million new guns, and most of the 50 states have liberalized the laws that govern their purchase, possession, and use. And what has happened to the “gun-murder” rate? It’s been cut in half. (The crime rate has also dropped precipitously.) If we are to have an honest debate in this country, conservatives will need to accept that the vast number of firearms in circulation contribute to the America’s relatively higher rate of shootings, and progressives will need to accept that, beyond that obvious point, the relationship between the raw number of weapons, the laws under which they are regulated, and the incidence of crime is a lot more complex than is typically conceded.
We are not going to get that debate, of course. There is a good reason that Michael Bloomberg and his fellow travelers jump cynically upon every mass shooting and attempt to use it as a catalyst for their existing ideas, and that is that horror’s aftermath is the only time in which they can get the American public to seriously reconsider the status quo. To the champions of stricter regulation, calm and dispassionate analysis are enemies to be dispensed with, preferably in favor of chaos and disquiet and the hysterical pointing of fingers. There is little more irritating to the would-be knee-jerker than the man who points out that the remedies on offer are divorced from the ill being treated – or, for that matter, that the ill is declining in scale. For as long as Obama and co. can conflate the question “Do you want more gun control?” with “Are you upset about what just happened?” they are able to win the day. But, once the two are separated, they lose – and badly. Why did we hear the same calls throughout yesterday’s saga, regardless of the forthcoming facts? Because, to the zealots and the bores, a mass-shooting news-cycle does not represent a source of perpetually changing information, but a static propaganda battle to be fought and won. It was only a matter of time before fortune put his hostages out on parade.
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How typical that Obama's choice for organizing the administration's efforts against ISIS is someone with a history of sympathy for Hamas.
President Obama has appointed a foreign policy advisor known to be a friend of the terrorist group Hamas to be the administration’s new czar in charge of countering ISIS. The appointee, Robert Malley, has a history of sympathizing with Islamists, which makes the appointment all the more appalling....
Malley was Obama's informal foreign policy adviser during the 2008 presidential campaign until his cozy relationship with Hamas, long classified as a terrorist organization by the U.S. State Department, came to light. Israeli security officials had expressed “concern” about Malley for advocating negotiations with Hamas and providing international assistance to the terrorist group. This came amid reportage that Trinity United Church of Christ, Obama's radical church in Chicago, had reprinted a manifesto by Hamas in its newsletter. The manifesto defended terrorism as legitimate resistance, refused to recognize the right of Israel to exist, and compared the terror group’s official charter – which calls for the murder of Jews – to America’s Declaration of Independence.
Fearful of losing Jewish voters, Obama severed ties with Malley in May of 2008 when it was disclosed that he had held meetings with Hamas. The campaign had been telling pro-Israel audiences that Obama would not talk with Hamas unless and until it had renounced terror, recognized Israel, and abided by previous agreements the Palestinians had signed with Israel.
One day after the election, it was reported that Malley had been dispatched to the Middle East to work on Obama's promise to "improve ties with Egypt and Syria."
That all worked out so well, he's been promoted to Obama's ISIS czar.
And this administration keeps on insulting Israel.
Secretary of State John Kerry caused consternation in Israel when he said the nation threatens to implode if a two-state solution is not reached with Palestinians, drawing the ire of Prime Minister Benjamin Netanyahu.
“Israel will not be a binational state,” Netanyahu said emphatically at the opening of his weekly cabinet meeting on Sunday, according to the Times of Israel.
Kerry doesn't seem to understand that the Palestinian Authority is not interested in peaceful coexistence with Israel.
Netanyahu reiterated previous claims that the Palestinian Authority has been inciting the current wave of violence, citing a visit Saturday by PA chief negotiator Saeb Ereket to the home of the family of a man who had carried out a shooting attack last week and was killed in the course of the attack.
“Not only does he not condemn the attacker; he offers condolences to the family and therefore gives support and encouragement to acts of terror,” he said.
Netanyahu’s comments came a day after Kerry told the Saban Forum at the Brookings Institution in Washington, DC, that current trends were leading to a one-state solution, and that Israel would not be able to maintain its Jewish and democratic nature in such a scenario.
“The status quo is simply not sustainable and the fact of the matter is that current trends, including violence, settlement activity, demolitions, are imperiling the viability of a two-state solution,” Kerry warned. “And that trend has to be reversed to prevent this untenable one-state reality from taking hold.”
The White Hpuse's assurances on ISIS are being negated by an intelligence report commissioned by the White House.
A new U.S. intelligence report on ISIS, commissioned by the White House, predicts that the self-proclaimed Islamic State will spread worldwide and grow in numbers, unless it suffers a significant loss of territory on the battlefield in Iraq and Syria, U.S. officials told The Daily Beast.
The report stands in stark contrast to earlier White House assurances that ISIS had been "contained" in Iraq and Syria. And it is already spurring changes in how the U.S. grapples with ISIS, these officials said.
It’s also a tacit admission that coalition efforts so far – dropping thousands of bombs and deploying 3,500 U.S. troops as well as other coalition trainers -- have been outpaced by ISIS’ ability to expand and attract new followers, even as the yearlong coalition air campaign has helped local forces drive ISIS out of parts of Iraq and Syria.
The White House commissioned the intelligence report prior to last month's deadly strikes in Paris, and long before last week's terror attacks in San Bernardino, California, three senior U.S. officials said, speaking on condition of anonymity in order to describe a confidential document and policy changes. It was also commissioned before Obama declared ISIS “contained” in Iraq and Syria — just a day before the Paris attacks — but it was delivered to the White House in the weeks afterward.
Jonah Goldberg is vastly amused that the NYT decided that, for the first time since 1920, they needed to put their editorial demands on the front page. When last they were so moved, it was to plead with Americans to not vote for Warren G. Harding. We saw how that turned out. Goldberg puts his mind to American history since 1920 to list all the events that the NYT didn't feel strongly enough about to publish a first-page editorial.
The Peace of Versailles, Buck v. Bell, the Great Depression, Pearl Harbor, the Hitler-Stalin Pact, the Ukrainian famine, the internment of Japanese-Americans, the Tuskegee experiments, the Holocaust, McCarthyism, the Marshall Plan, Jim Crow, the Cuban Missile Crisis, the Kennedy Assassination, the 1964 Civil Rights Act, Kent State, the Gulf of Tonkin Resolution, Watergate, withdrawal from Vietnam, the Killing Fields, the Iran hostage crisis, the Contras, AIDS, gay marriage, the Iran nuclear deal: These are just a few of the things the New York Times chose not to run front page editorials on.
Jeremy Morgan who blogs at XYZ ridicules Bill Nye's assertion that the terrorist attack in Paris was the "result of climate change" because of a supposed water shortage in Syria which led to terrorism.
Perhaps Bill Nye “the science guy” should familiarise himself with the scientific problem solving principle, know as Occam’s razor before he completely discredits himself.
This assertion that climate change is the cause of terrorism is truly a case in point in revealing how intellectually untenable and morally bankrupt the West’s so called progressive and self appointed intelligentsia have become. Of course, people like Bill Nye and President Obama know the motivations of terrorists better than the terrorists do themselves, even when the terrorists broadcast them to the whole world and shout it as they fire into crowds of infidels with their AK-47s.
Of course, terrorism has nothing to do with Islam, even when the terrorists tell us that’s exactly what it is about. It’s really just climate change, or Islamophobia, or some other imagined cause. It has absolutely nothing to do with Mohammed or Islamic texts that call for the world to be brought under submission. And so long as the imagined reasons prevent us from facing the true underlying cause of terrorism, all is good for President Obama and his enlightened progressives.
Truly, our progressive betters are so clever. They know what is in the hearts of terrorists, and they know what motivates them, more than the terrorists do themselves.
Perhaps that is why this president has such a problem with credibility.
After the attacks, the president and his allies tried to shoehorn the facts into a gun control narrative. In one sense this was predictable; it’s also jarring. The predictable part is that restricting access to firearms and ammunition is the public policy prescription that Obama and his party have embraced. Whatever your views on the Second Amendment, this approach was logical after Sandy Hook and some other mass shootings that have taken place during his White House tenure.
It made less sense after Chattanooga, where a self-radicalized jihadist immigrant with drug problems and mental health issues attacked U.S. military recruiting facilities, killing four United States Marines and a Navy sailor. At least one U.S. senator, Ron Johnson of Wisconsin, thought the moral of the story was that bans on active duty military being armed on such bases should be repealed.
And the gun control argument seemed utterly out of place in the context of San Bernardino. A married couple devoted to ISIS, one of them a recent immigrant from Saudi Arabia, killed 14 co-workers of the husband, wounded 21 others, planted a remote-control pipe bomb designed to kill first responders, including medical personnel. They then tried to escape, apparently planning to use their arsenal—including 12 more bombs—elsewhere. If anything, these facts would make many Americans want to buy firearms, and look askance at Obama’s plan to resettle refugees from the country where ISIS began.
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Trump's supporters have been triumphantly touting the CNN/ORC poll that showed him in the lead at 36%. But, as Lara Brown writes at US News, this was a very poorly designed poll that was almost designed to pump up Trump's numbers.
When you examine the poll, which was taken from Nov. 27 through Dec. 1, 2015 (which was a holiday weekend and is problematical all by itself in terms of who the respondents were), it is clear that the pollsters chose to ask five questions on the topic of illegal immigration prior to asking about the Republican nomination horserace. This is a bad polling practice that can skew the results.
As Pew Research has explained with respect to the ordering of the presidential approval question, "if the survey first asks about the economy and then asks about presidential approval, the respondent may still be thinking about the economy when answering the latter question ... [and] if the respondent is only thinking about the economy because we brought up the issue, his or her response about the president may be biased by what we call a context effect: In this case we would be priming the respondent to consider the economy in an assessment of the president."
This is essentially what CNN/ORC did with the five questions that were focused on illegal immigration. It's highly likely that the registered Republican respondents whom they queried were still thinking about illegal immigration when they were asked about the Republican candidate they would support for the presidential nomination. And from the moment that Trump burst onto the presidential election stage in mid-June, he has been the candidate who has been most identified with the issue of immigration. Hence, it's not surprising that Trump's support is higher in this poll than in the previous two polls where they did not ask these immigration questions.
Any reputable pollster would know about this. Conducting a poll over Thanksgiving weekend is really polling malpractice. But priming the respondents with questions about illegal immigration before they ask about their choice for the GOP nomination is so clearly a major polling no-no that I can't help but wonder if CNN did it deliberately in order to create more of a buzz for their poll and for Donald Trump.
When I teach my students about polling, these are two of the polling practices that I warn students about when they see reports of polls in the news. In discussing the context effect of question ordering, I use an example from ABC in 1998 in the midst of the Monica Lewinsky scandal. ABC asked respondents about whether if they approved of Hillary Clinton as First Lady and Bill Clinton as President. If they asked about Bill first, his approval rating was 56%. If they asked about Hillary first and then Bill, his approval rating sunk to 39%. Clearly, respondents were primed to think poorly of Bill if the poll mentioned Hillary first and people thought of his sleazy treatment of his wife. This is Polling 101. By ignoring this, CNN demonstrated that they were more interested in getting certain results than getting an idea of where public opinion stands now on the GOP nomination fight.
There are some other problems with that CNN poll.
Republican pollster B.J. Martino parsed the new CNN poll that has Trump looking all but unbeatable at this stage: “They have a sample of 1,020 adults — and 445 of those they say constitute the Republican primary universe. Basically, their poll is saying 43.6 percent of all Americans adults are voting in a Republican primary nationwide. When you go back to 2012, it’s 12.2 percent.”
Let's face it. Today's pollsters have no clue as to what turnout will be in the primaries. They're just making stuff up at this point.
Making stuff up might make sense when dealing with Donald Trump who seems to just make stuff up whenever he wants to. Now he's peddling another lie about how the 9/11 hijackers sent their wives home before the attack. The only problem was that only two of them were married and there is no evidence that those spouses were ever in the United States.
I know that my students will be interested to hear this.
Women may soon be forced to register for the draft, depending on the outcome of a federal law suit from the National Coalition for Men.
Defense Secretary Ash Carter ordered the military services to open all combat roles to women on Thursday. This order will come into play at the beginning of April 2016.
The suit, originally filed in 2013, has now received new life because of Carter’s decision. But according to Carter, the suit won’t change any of the Pentagon’s plans regarding gender integration, Stars and Stripes reports. The next hearing is set for Tuesday.
Many of my male students don't realize that they will have to register for the draft when they turn 18. They are also upset that the female students don't have to register. This comes up when we talk about differences in how discrimination cases based on race and gender are treated before the Supreme Court. In explaining how there is a medium standard of scrutiny for gender-based discrimination, I usually give registration for the draft as an example. I talk to them about the 1981 case Rostker v. Goldberg, in which the Court deferred to Congress's decision to reactivate the registration for the draft only for males because they did not foresee having women in combat. Now, with women being allowed to fight in combat, how will they justify not requiring females to have to register for the draft.
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David Boaz of Cato explains all the reasons why Princeton should remove Woodrow Wilson's name from the School of Public and International Affairs in addition to Wilson's clear racism.
In his 1901 book, “A History of the American People,” he extolled the Ku Klux Klan for helping “the white men of the South” to rid themselves of “the intolerable burden of governments sustained by the votes of ignorant Negroes.”
But here’s the thing: Racism isn’t the only aspect of Wilson’s character and career that should give Princeton pause about honoring him....
Wilson had long advocated a federal government with “unstinted power,” and as president he quickly set about expanding federal power. He pushed for the creation of the Federal Reserve Bank, to centralize control over money and credit.
He imposed the first income tax under the new Sixteenth Amendment, and then sharply raised rates. He signed the first federal drug prohibition.
When war began, centralization accelerated. Historian Robert Higgs writes that the government “virtually nationalized the ocean shipping industry. It did nationalize the railroad, telephone, domestic telegraph, and international telegraphic cable industries.” Notably, World War I was the first American war to be fought primarily with conscript soldiers, who made up 72 percent of the Army.
Wilson pressed for the Espionage and Sedition acts, which virtually outlawed criticism of the government, the armed forces or the war effort. More than 2,000 people were prosecuted under the acts, including Socialist Party presidential candidate Eugene Debs, Socialist congressman and publisher Victor Berger, and Robert Goldstein, the producer of a film about the American Revolution, “The Spirit of ’76,” which was accused of bringing the British government into disrepute.
And that was before the Red Scare and the notorious Palmer Raids, carried out by Attorney General A. Mitchell Palmer in 1919-20. Sociologist and historian James W. Loewen wrote, “Neither before nor since these campaigns has the United States come closer to being a police state.”
A lesser-known feature of Wilson’s civil-liberties record was the administration’s attempt to hunt down, entrap and discharge gay sailors in Newport, RI, in 1919.
Wilson disliked checks and balances, saying that the government is a living organism and “no living thing can have its organs offset against each other as checks, and live.” More than a century after Thomas Jefferson refused to deliver a State of the Union address, calling it a “Speech from the Throne,” Wilson resumed the practice of speaking to a joint session of Congress.
