March 2020

Townhall.com

by Bob Barr

The latest victim of the COVID-19 pandemic is not a health care worker, a first responder, or a cruise line traveler.  The purveyor is not an invisible microbe.  The perpetrators of the latest assault on men and women in cities and states across the country, are left-wing governors and mayors who have decided the pandemic provides a convenient excuse to deny law abiding citizens the freedom to exercise their Second Amendment rights.

As I wrote last week, we already have seen examples of the COVID-19 pandemic being used as an excuse to do just this; and the trend is accelerating.

Just last weekend, for example, the New Jersey State Police sent a message to all of the state’s Federal Firearms Licensees (FFL), telling them that Democrat Gov. Phil Murphy had decided to deactivate the Commonwealth’s ability to access the National Instant Criminal Background Check System that is required to be used during the purchases of all firearms in business transactions. According to Murphy, firearm purchases are not “essential” during the COVID-19 outbreak, and thus are within his “emergency” jurisdiction to slow the spread of the viral disease. The Bill of Rights be damned.

Second Amendment advocates have long pointed to the background check system as a potential chokepoint in the gun purchase process; exploitable by anti-gun officials to cripple the Second Amendment without the need for congressional or even state legislative action. As a National Rifle Association alert points out, while a majority of states use the FBI directly to run NICS searches, New Jersey is one of twelve “full point of contact” (POC) states (a group that includes California and Virginia) in which background checks are the responsibility of the state police; a most convenient mechanism for anti-gun governors like Murphy.

The difference is extremely important for the effective protection of Second Amendment rights. While federal interference in the FBI’s execution of background checks is possible, thanks to limitations placed in the statute when passed by Congress in 1993 this is far less likely to occur than a governor suspending the required background checks by executive order, or a general assembly refusing to fund the procedures. Given the continued spread of COVID-19, it is not a matter of if, but when further such restrictive measures are mandated.

This is precisely the danger inherent in broad “emergency powers” that go beyond resource management or financial relief; and which have no direct or even indirect relationship to the problem on which the “emergency” declaration is based. For example, the Mayor of New Orleans, a city infamous for confiscating firearms in the aftermath of Hurricane Katrina 15 years ago, issued a COVID-19 emergency order last week allowing her to suspend the sale of firearms.  That order is similar to ones issued this month by mayors in Champaign, IL, Fresno, CA, New York City, and elsewhere. Even without specific emergency powers, some local governments, such as the city of San Jose in California, are declaring gun stores “non-essential” and therefore subject to summary closure as a way to prevent citizens from acquiring firearms.

There is already a much needed, and legitimate debate about whether governors and local government officials may constitutionally issue blanket orders to close private businesses that summarily put tens of thousands of people out of work. However, there can be no legitimate argument that there exists a local “emergency” exception that allows officials to prohibit individuals from exercising rights expressly protected by the Bill of Rights. Indeed, it is precisely in times of emergency, when the risk of looting and other criminal behavior increases, that the rights guaranteed by the Second Amendment become most important.

Americans who think our judicial system will step in and stop such unwarranted and unconstitutional edicts as we now are seeing, are sadly mistaken.  Just this week the Pennsylvania Supreme Court let stand an order by that state’s Democrat Governor Tom Wolf that forced the closure of all gun stores.  And, as Supreme Court Justice Clarence Thomas lamented in 2017, the nation’s High Court has been distressingly averse to even taking under review cases that would protect this fundamental right from actions such as those we are witnessing in this most recent “emergency.”

Townhall.com

by Bob Barr

In his 2004 book, “Against Leviathan – Government Power and a Free Society,” Robert Higgs explains how our federal government has transformed from one of “defined and limited” powers as envisioned by our Founders, into one driven by a “Crisis Constitution.” As Higgs clearly establishes, we are living in “an age of permanent emergency.”

The still-developing COVID-19 pandemic illustrates that this “emergency” mindset today is directing the hands of government leaders, not only in our nation’s capital, but in statehouses and city councils across the country.

It is by now clear that the COVID-19 pandemic represents a serious health problem. At a minimum, individuals should be heeding common sense hygiene rules ranging from the personal – washing hands frequently – to the socially interactive – minimize contacts with high-risk populations such as the elderly and infirm.

From a regulatory and resource management standpoint, President Trump and governors across the country are directing and implementing appropriate and much-needed measures to reduce red tape and make additional funds available, thereby helping government agencies and private businesses to better meet the challenges posed by this “novel” virus. 

Actions that bear a direct and reasonable relationship to the health crisis posed by the virus, and which are undertaken by government and private-sector entities in response thereto, make sense and are appropriate in current circumstances, even if they minimally or tangentially impact individual liberties guaranteed by our Constitution. 

Beyond such steps – when we enter the realm of far-reaching and vague “emergency” declarations that go beyond any reasoned relationship to containing and defending against the virus – we find ourselves in the dangerous territory described by Higgs. It is this crisis-driven environment in which even the Supreme Court of the United States has declared more than once that, “[we] must surrender or forgo [sic] exercising rights which in other times could not be impaired.” 

In earlier times, government power grabs would be met with at least a noticeable degree of critical debate.  Not so in our post-911 world. In fact, in recent days “emergency” steps already taken by state and local, and especially the federal governments, are being criticized openly as being inadequate, with many pundits and commentators demanding that more and further draconian restrictions on individuals and businesses be implemented. 

In this environment, Nanny State officials, ever eager to expand their turf, have seized on the COVID-19 pandemic to justify expanding power in areas they have long sought to control, most notably, 2nd Amendment rights.  For example, a new COVID-19 declaration by the Mayor of Champaign, Illinois includes the power to ban the sale of firearms, ammunition, alcohol, and gasoline, as well as confiscate and take ownership of any private property. 

In this latest crisis, as in earlier ones, cries for governments at all levels “to do something” quickly drown out reasoned warnings that many such measures go beyond constitutionally permissible bounds, even past boundaries that routinely have been expanded by presidents, legislators, and judges fearful that if they do not heed calls “do something” they will be blamed if further problems occur.   

The Pandora’s Box is opened wider with each new “crisis.” Each time bites are taken out of our constitutionally guaranteed rights, it sets precedent for government officials that follow. Champaign’s Mayor today can point to similar gun control edicts issued previously by other local officials – New Orleans in 2005 and the U.S. Virgin Islands in 2017 – as a precedent for her gun confiscation power in 2020.

The “National Emergencies Act” cited by Trump last week in his federal declaration places at Uncle Sam’s fingertips a range of powers that potentially limit virtually every activity in which an individual or business might engage, from banking and travel, to use of the internet.  State and local “emergency” declarations, of course, add to restrictions on individual liberty imposed by the president’s declaration of a “national emergency.” 

Compounding the constitutional infirmities with contemporary “emergency declarations” is the fact that the strictures being imposed on citizens throughout the country are founded not on any clear definition or understanding of what actually constitutes an “emergency,” the term is nowhere in law clearly defined.  Sadly, it appears far more important to most Americans these days for government to “do something” than it is for government to do something constitutional.  

Townhall.com

by Bob Barr

The 2013 Edward Snowden leaks revealed for the first time the frightening extent to which post-9/11 national security powers had been expanded – and abused – in the decade thereafter. But it was not until the FBI’s partisan crusade against the Trump electoral victory, did we have a clear and vivid picture of the degree to which those powers could be abused in the hands of bitter and unaccountable intelligence officials. American citizens would finally come to realize that if it could happen to the President of the United States, it could happen to anyone. 

Ironically, it is because of this hubris deep inside America’s intelligence community that we are now closer than ever to reforming at least some of the abuses of the USA PATRIOT Act. With certain provisions of the Foreign Intelligence Surveillance Act (FISA) set to expire on Sunday – most notably the much-abused Section 215 — hope for restoration of at least some of America’s civil liberties is on the horizon (but not guaranteed).

Sens. Rand Paul (R-KY) and Mike Lee (R-UT) once again are leading the fight to bring these expansive government surveillance powers back into line with the Fourth Amendment. It is unclear what will transpire over the next few days as party leaders seek to cobble together a majority of votes on one of the three possible outcomes; but also, to ensure the basic intelligence law remains on the books.

The first is full reauthorization. And, if Rep. Adam Schiff and other surveillance hawks in Congress on both sides of the aisle  have their way — with the full support of the Intelligence Community — it will be without any proposed amendments that weaken the powers that were deployed against the Trump campaign and Administration. Already Schiff has attempted to bully-away attempts to reform Section 215, including those by fellow Democrat Rep. Zoe Lofgren. 

The second possibility is the other side of the coin; true meaningful reform to FISA that dramatically curtails domestic – not foreign — spying powers. FreedomWorks has a great rundown of what such reforms might look like, including once and for all eliminating the terrible Call Detail Records (CDR) program that has been abused repeatedly.  FreedomWorks’ proposal also would require a warrant for US citizens targeted by FISA orders and would take away the FBI’s FISA reporting exemptions. 

FreedomWorks admits Lofgren’s reform bill (the “Safeguarding Americans’ Private Records Act of 2020”) and its Senate companion are not a comprehensive fix to all of Section 215’s abuses.  Nonetheless, the well-respected organization says it still is “a major improvement and our 4th Amendment would be in much better shape for it.” However, as is the case for full authorization, the votes are likely not there for such sweeping reforms given the Sunday deadline.

The Senate, of course, could have been hard at work on this important matter months ago, knowing this deadline loomed. But putting it off until the eleventh hour – a well-known legislative maneuver – makes it easier to avoid the hard work of substantive reform and to simply kick the can down the street once again.

The final and most likely option is a compromise between full reauthorization and sweeping FISA reforms; in which Section 215 is temporarily reauthorized before the deadline but with some worthwhile reform concessions. For example, there is significant support for striking CDR completely from the books, particularly since the NSA has already shuttered the program responsible for collecting this data. This should make for an easy concession from Rep. Schiff and Judiciary Chairman Jerry Nadler. In exchange, pro-reformers might consent to a temporary reauthorization of FISA for two to six weeks while negotiations between the two sides continue on the more complicated provisions. 

At this late stage, just a few days before these oft-abused surveillance powers are set to expire, and with the coronavirus pushing virtually every other major legislative issue from the headlines, the outcome here is muddled to say the least – a situation surveillance advocates within the Congress and the Administration will use to their advantage.

Another real opportunity to repeal domestic spying powers that were enacted under the guise of “foreign intelligence surveillance” and that never should have been granted in the first place, may not come for another decade – if ever. If we let slip by this opportunity, vital Fourth Amendment guarantees against abusive government surveillance may be forever lost.

Townhall.com

by Bob Barr

For nearly three-quarters of a century, America’s taxpayers have given tens of billions of dollars to an agency of the federal government charged expressly with identifying, controlling and preventing diseases. Yet, despite having faced numerous disease outbreaks in those decades – from malaria in the post-World War II southern states, to SARS, avian flu and Ebola outbreaks in recent years – the Atlanta-based Centers for Disease Control and Prevention (CDC) appears to have been woefully unprepared to respond to the still-developing COVID-19, or “Coronavirus,” that sprang out of mainland China at the end of last year.

Predictably, Democrats are almost gleefully pointing to President Trump’s departmental reorganization and funding cuts for the CDC in 2018 as the reason for the agency’s anemic response to COVID-19’s rapid spread.  The root cause of the problems at CDC are not of Trump’s making, however, and go far deeper than any recent administrative changes or funding decisions.  

The CDC for years has suffered from a problem common to government agencies everywhere – “mission creep”; whereby an agency and congressional appropriators deliberately keep expanding its responsibilities in order to justify bigger and bigger budgets.  In the case of CDC, this is reflected in the range of non-disease related responsibilities it has championed in recent years; everything from school bullying to workplace accidents and, most notably, gun control.

Such institutional expansionism, however, comes at a price; and here it is a loss of focus and priority to what once was the core responsibility of the CDC – control and prevention of diseases.

Trump’s three-year long effort to reform federal regulatory and policy functions across the vast horizon of the federal government, does not sit well with bureaucrats inside those agencies, whether it be at “Foggy Bottom” where the State Department sits, or Atlanta where the CDC is headquartered.  

As president, Trump has every right – indeed the obligation – to effect changes within federal agencies in an attempt to make them more effective, efficient, and purposeful in their missions. That the CDC and its protectors in the Democratic Party should find fault with such steps, and then blame the Administration for the latest unforeseen virus emanating from somewhere deep inside China, belies the inherent partisan nature of their posturing.

The breakdown at the CDC has been a slow-moving crisis in the making, and Democrat blame-shifting to Trump is, as the president said, a “hoax.” For years, Democrats in the Congress have been more concerned with beefing up the Center’s jurisdiction to study gun violence than with ensuring the sprawling agency does a better job carrying out its core mission of identifying and controlling communicable diseases like, well, new strains of viral infections.

Apparently, at least until now, turning the gun control debate into a “public health” issue and therefore arguably within the broadest jurisdiction of the CDC, was more important (and simpler) for congressional Democrats than delving into the structure and prioritization of disease control matters at the agency.  

Considering we are in the grip of a highly contentious presidential election that will not resolve itself for at least another eight months, it is not likely the Democrats will don their adult hats and work with the administration to  make long-needed changes at the CDC that will start returning it to its appropriate boundaries.  It is thus all the more important that Trump not be deterred in his drive to continue doing this on his own; not only to mitigate the effects of the coronavirus, but to ensure the CDC is far better prepared to meet the next viral threat which inevitably will eventually present itself.