April 2017

In D.C. Comic’s fictional “Bizarro World,” all things are done opposite of here on Earth. According to the “Bizarro Code,” inhabitants of the cube-shaped planet “hate beauty,” “love ugliness” and consider it illegal to “make anything perfect.” Ironically, here on planet Earth, many liberals – and a disturbing number of judges – subscribe to a similar Bizarro Code when considering matters involving the Second Amendment. To these Earth-bound Bizarro Code adherents, it should be — and in some cases is — illegal to legally exercise the fundamental, constitutionally-guaranteed right to possess a firearm.

While the Supreme Court, and a number of other courts across the country, have made progress in recent years in rolling-back some of the more onerous restrictions on the right to keep and bear arms, the trend is by no means uniform; especially regarding concealed carry.

For example, the U.S. Court of Appeals for the Fourth Circuit ruled in January that mere lawful possession of a firearm poses a danger to society. Specifically – and incredibly – that court opined that there is an inherent risk in “a person who is armed even when the firearm is legally possessed.” While some may laud this ruling as a move to protect police officers facing armed suspects, its potential scope is far broader and more problematic.

The opinion opens the door for the search of any concealed carry permit holder, regardless of whether the individual ran a stop sign, was selling cocaine, or just happened to be in the wrong place at the wrong time. In effect, this federal court of appeals decision means that simply exercising one’s Second Amendment right to possess a firearm negates that person’s Fourth Amendment right to be free from unreasonable search and seizure.

As Slate Editor Mark Joseph Stern noted recently, the real-world consequences of the Fourth Circuit’s “logic” did not take long to play-out in another federal Circuit — the 11th (which includes Alabama, Florida and Georgia). In March, that Circuit threw out a lawsuit against a Florida police officer who fatally shot an apartment resident who happened to be holding a lawful firearm when he answered the door late at night after the officer unexpectedly banged on the door.

The gun owner’s only “crime” was legally having a firearm in his hand, inside his home, when answering an unexpected loud knock on his door late at night.

This is far from the only example of such Second Amendment perfidy by judges in recent years. In 2015, Corey Jones, who possessed a lawful concealed carry permit, was leaving a band gig at 3:00 AM when his car broke down in an undesirable part of town. When a white van with tinted windows pulled in front of him and a man wearing jeans, a t-shirt, and a baseball cap exited, Jones apparently grabbed his firearm. This move to lawfully protect himself was answered without warning by the plain-clothed law enforcement officer driving the van, shooting Jones dead.

These incidents hit close to home for all responsible gun owners; especially those who carry firearms for self-defense. These and many other such incidents illustrate not uncommon situations in which law-abiding individuals find themselves, and when having a firearm for self-defense is most needed. Yet, despite some progress on gun rights, a worsening problem within states and local jurisdictions due to wrong-headed court rulings, or simply bad police training, are placing gun owners directly in danger by criminalizing the very act of possessing a firearm.

The problem is made worse by the prevalence of data-sharing with so-called “Fusion Centers.” These largely unregulated centers take vast quantities of personal information on citizens that has been collected from both public and confidential sources, and disseminate it to law enforcement agencies at all levels across the country. Thanks to this growing, government-based “Dark Net,” firearms owners can look forward to more harassment; such as Maryland transportation police who stand accused of using concealed permit data that they apparently can access at the touch of a computer screen in their vehicles, to stop out-of-state drivers.

Rolling back this tide of anti-Second Amendment court decisions requires continued and aggressive efforts by the National Rifle Association (which is holding its annual convention in Atlanta this week) and other Second Amendment-focused civil liberties organizations. They – and we — need to support the appointment and election of judges, police chiefs, sheriffs, state legislators, and members of Congress who live in and understand the real world and our real Bill of Rights; and who are not beholden to some Bizarro World Constitution in which “shall not be infringed” means “shall be infringed.”

Originally published here via townhall.com

Listening to Republicans on Capitol Hill gush over President Trump’s decision last week to send nearly 60 high-tech Tomahawk missiles to damage a relatively low-tech Syrian airbase, an observer would be easily led to believe that Trump had in that moment transmogrified from Boy President to Man President — his Bar Mitzvah moment.

In fact, serious questions can and should be raised regarding the thought process underlying Trump’s decision, the timing of it, and the legal and constitutional foundation for it.

First, supporters, including Sens. Marco Rubio, John McCain and Lindsey Graham, and a bevy of their GOP colleagues, praised the missile strike as morally justified because, just days before Syrian Air Force jets dropped chemical ordinance on areas in which civilians were known to reside, and apparently dozens did die. Absent from published reports was any mention of whether ISIS or other rebel opponents of President Assad’s regime met similar fate in the attack; but the images of civilian casualties the media chose to display were sufficient to nearly bring Donald Trump to tears and push him into the favored mode of post-911 presidents – Commander-in-Chief. Donning that headgear, Trump ordered the massive Tomahawk missile strike against a Syria government air base from US Navy ships offshore in the Mediterranean.

Obviously, slightly less recent images of other Syrian civilians killed by traditional, explosive devices as opposed to those containing chemical agents, were insufficiently provocative to the President to warrant military action; as were the reports of many thousands of civilians killed over the past years in the Syrian civil war between government forces, ISIS, and various other sectarian groups vying for power in that country, including some backed heavily by the Iranian regime and others enjoying support from Russia.

The moral inconsistencies of Trump’s explanation for last Thursday’s military action aside, the sparse legal justification provided is even weaker. The strike was necessary, the commander-in-chief said, because it was based on “vital national security interests” of the United States.” Paying lip-service to this element of American military policy is standard operating procedure, but the words, without substance, mean nothing.

What exactly are America’s “vital national security interests” that suddenly were at stake last week in Syria’s multi-year domestic civil war; interests so urgent and vital that they demanded a massive American military response? Aside from Trump’s supporters heralding the fact that “we now have a President who is unafraid to take decisive military action,” what has been proven? What has been accomplished? And based on what real American interests and constitutional and legal authority?

The 2001 Authorization for the Use of Military Force (AUMF) was cited by congressional leaders as a clear and “unquestionable” legal basis for the Syrian strikes. Really? A 16-year old congressional Resolution, the terms of which are explicitly limited to action against those responsible for the attacks on September 11, 2001, justifies the use of America’s military against a Syrian government that – while clearly brutal in its actions against citizens in its ongoing civil war – had no connection to the 9-11 attacks against the United States? The argument citing the 2001 AUMF is not one easily made with a straight face, but Senators citing it were up to the task.

What about the fact that Assad’s use of bombs containing chemical agents is prohibited by international treaty and protocol? A fair question; and one that puts Assad on the wrong end of international law. But there is nothing in those treaties and protocols, or in U.S. law, that provides legal mandate for the United States or any other nation opposed to what Assad did, to take unilateral military action for an alleged violation not directed against them.

If it is now the U.S. government’s position that any nation we decide violates an international treaty or protocol regarding use of force involving certain weapons, is subject to being on the receiving end of American military “retaliation,” we would be engaging in exactly what President Trump said days before he did not want to do — be the world’s policeman. Moreover, when his predecessors engaged in similar actions (in Libya, for example), the consequences were far from positive from the standpoint of our national security interests.

Many on Capitol Hill will continue to cheer the new-found chutzpah of the neophyte President, and his political base will raise him even higher; but the confusion sown by his actions, in terms of legality, constitutionality, consistency, and sound international policy will present problems down the road that will not easily be resolved in that part of the world or elsewhere, including North Korea and Russia.

Originally published here via townhall.com

While President Donald Trump wasted little time after taking his oath of office to outline his vision to “make America great again,” Republicans in Congress have behaved more like a sleepy bear waking from nearly a decade of hibernation.

The latest example of this legislative yawn was the move by the House last week to “reform” internet privacy laws. In a typical “pass-the-buck” fashion, the House majority simply concurred in a vote by the Senate to overturn a 2016 decision by the Federal Communications Commission (FCC) that limited in a small way how Internet Service Providers (ISPs) could access and use browsing data for commercial purposes, such as selling it to third parties.

Last year’s ruling by the FCC, however, only applied to ISPs and not industry giants such as Google and Amazon; and, this was the public excuse on which the House GOP hung its hat to justify the precipitous vote to ratify the Senate action and nullify the rule.

Supporters of the measure, which included all but 15 House Republicans, claimed the Obama-era ruling was “unfair” because it only applied to ISPs, and not everyone else. They also argued in another inside-the-Beltway manner that it should have been a different federal regulatory agency – the Federal Trade Commission (FTC) – that made the change. So, in what now seems to be the way Rep. Paul Ryan and Sen. Mitch McConnell are running things at the Capitol, when confronted with a substantive but important question of reforming and modernizing a complex issue – in this case, internet privacy — Republicans simply hit the “Easy Button,” call it a day, and return to the status quo.

If the excuse for this failure to address a timely and relevant issue sounds familiar, it should. Simply look at the failure by the GOP last month to take the time and devote the effort to develop, draft, present and explain to the American people a true repeal and replacement for Obamacare – rather than the Rube-Goldberg plan that neither repealed the underlying law nor replaced it with comprehensive, market-base provisions. Doing little is always easier than doing it right.

Many of today’s laws regarding data and personal privacy reflect technology from the 1970s and 1980s, long before the age of the internet cloud, search engines, and metadata. As such, they are woefully inadequate at addressing pressing practical and constitutional questions of personal privacy; this in an era when even a small sampling of an individual’s search history can reveal deeply intimate details of one’s life.

Supreme Court Justice Sonya Sotomayor perfectly captured this sentiment and the need for modernizing privacy laws in her concurring opinion in United States v. Jones, a 2011 case dealing with GPS tracking. Sotomayor argued a comprehensive re-write of our nation’s privacy laws; arguing quite correctly that the current approach “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Rather than scrap the FCC ruling, and in turn one of the few positive steps for personal privacy in the modern era, Republicans should have seized the opportunity for the first true attempt to bring privacy laws into the 21st Century. It would have been a major victory for the GOP, demonstrating a vision for constitutional leadership that heretofore has been noticeably absent. Instead, congressional Republicans took yet another shortcut, putting off the hard work behind meaningful, comprehensive reform for another day that is likely never to come.

The missed opportunity is a reminder of Winston Churchill’s observation that, “men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.” Congress acts in much the same way — stumbling on opportunities for real change, but hurrying along before any real work is required of them. This is why advocates of privacy reform such as the Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), and other like-minded groups must start applying serious pressure on the Congress – and continue applying pressure – in a concerted effort to force Congress to challenge the powerful lobbying arm of Silicon Valley and other vested interests. Privacy advocates must be prepared also to challenge federal law enforcement agencies on this matter; agencies that prefer to keep the laws and regulations under which they operate as vague and outdated as possible, in order to offer them maximum room to maneuver.

Left to its own devices, the Congress will do what it excels at — kicking the can down the road.

Originally published here via townhall.com