Liberty Guard Author

Townhall.com

Last week, WikiLeaks founder Julian Assange was dragged from the Ecuadorean embassy in London by a phalanx of British police officers; abruptly ending his nearly seven years of self-imposed political asylum in those cramped quarters.  Far from ending the saga that began almost a decade ago when WikiLeaks published the trove of classified materials pilfered from the U.S. government by convicted spy Chelsea (formerly, Bradley) Manning, last week’s drama raises a slew of new questions about Washington’s sudden, high-level interest in this 48-year old Australian entrepreneur, computer programmer, and publisher. 

Extradition proceedings in the U.K. will launch what is certain to be a lengthy and complex legal battle that ultimately will determine if Assange will be prosecuted by the U.S. Department of Justice; or even if he can be prosecuted by our government.  Where this will end up – and who will be the winners — is far from certain.

The Justice Department last week unsealed a year-old indictment charging that Assange conspired with Manning in 2010 to break into Defense Department computers.   According to this remarkably short (six-page) indictment, Manning then was able to download and copy hundreds of thousands of classified documents, mostly having to do with military actions in Iraq and Afghanistan; and many of which WikiLeaks published on its website over the course of the next year.

Interestingly, Assange is not charged with any substantive offense; only with conspiring to help Manning in the acts that eventually saw her convicted of espionage by a court martial.  

Assange is sure to defend against federal prosecution based on the claim that — since he published the materials received from Manning in his capacity as director of WikiLeaks — he is shielded from prosecution by the First Amendment.  Whether that claim works for Assange is far from certain; but equally uncertain is whether judges in the U.K. and the U.S. will agree that helping someone gain unauthorized access to documents in order to then publish them in the “public interest,” is sufficient basis on which to pierce what in the United States has long-been a robust barrier protecting journalists and other whistle-blowers from prosecution.

These concerns tee up the real question at hand, which is, what precisely is Uncle Sam’s interest in Julian Assange?  Does the United States actually consider him to be a real and continuing threat to our country?  If so, why did not the Justice Department craft a more substantive indictment?   After all, they had plenty of time to do so.  

Is the Trump administration truly interested in punishing Assange for WikiLeaks’ role in the Manning case or is the goal to further punish Manning, whose prison term was commuted by Barack Obama shortly before he left office?  Is perhaps the real goal here to pressure Assange into disclosing more than already has been revealed publicly about Russia’s meddling in the 2016 election?

Regardless of the true motivation for the government’s apparently precipitous move against Assange, a stronger case should have been laid out in the indictment, which already is subject to credible procedural attacks by the Assange legal team.  

For starters, prosecutors apparently are not certain Assange actually provided Manning the help she allegedly needed to access government databases. Even assuming this to have been the case, why did the government fail to prepare and file an indictment so alleging, before the statute of limitations appears to have expired, as former Assistant U.S. Attorney Andrew McCarthy wrote in the National Review. McCarthy suggests the government may try to avoid this obvious defense, by claiming an exception for “acts of terrorism transcending national boundaries”; but as McCarthy notes, such a strategy by the government “is not going to be a lay-up, to say the least.” 

Currently, it is unclear exactly where in the administration the pressure originated to have Assange arrested and held by the British government pending extradition to the U.S.  Regardless of whether the person or persons who pushed the “Go” button are at the State Department, the Defense Department, the Justice Department, or nestled in the White House itself, a real Pandora’s Box of legal and policy issues has been unleashed; the consequences of which may not be so comfortable as intended.

At a minimum, and as declared by Alice as she began her adventure in Wonderland, things most definitely will become “curiouser and curiouser.”

Townhall.com

As the saying goes, “it was great while it lasted.”  On Friday, March 29^th U.S. District Court Judge Roger Benitez issued an 86-page Order declaring unconstitutional California’s law criminalizing possession of firearm magazines with a capacity to hold more than 10 rounds.  The senior jurist, who was confirmed to his post in 2004 following nomination by President George W. Bush, went further than do most judges when striking down a state law as contrary to the U.S. Constitution.  He directed that his Order be effective immediately.  In other words, Judge Benitez did not allow California to continue to enforce the unconstitutional law while the state appealed the decision (a process that can be expected to take months).

Unfortunately, less than one week later – on Thursday, April 4^th – Benitez relented, and stayed his Order so as to give California’s very liberal Attorney General, former Congressman Xavier Becerra, opportunity to appeal the decision to the federal Ninth Circuit Court of Appeals.  

Notwithstanding the judge’s about-face, his lengthy opinion declaring the magazine ban incompatible with the Second Amendment’s guarantee of the “right to keep and bear arms,” deserves continued scrutiny and praise.  The opinion is strikingly lucid in explaining both the history and the practical necessity of allowing law-abiding citizens to defend themselves, if they so choose, with a firearm capable of firing more than 10 rounds without reloading.

At the outset, Benitez properly underpins his analysis of the magazine ban by asserting that at its core, the Second Amendment is about self-defense; not hunting, not gun collecting, but defense of one’s person, family and home.   Moreover, as he explains further, this foundational principle extends to the essential components of the type of firearms at issue in the California case – rifles and handguns fed by a magazine, without which the firearm is useless.  

From there, Judge Benitez’s opinion dissects the California law, which was enacted as part of the state’s Penal Code not by legislation, but by popular referendum in 2016.   

Benitez deftly analyzes the seminal 2008 U.S. Supreme Court decision in District of Columbia v. Heller, which established clearly that the Second Amendment protects an individual’s right to possess a firearm for self-defense in one’s home.  The Judge determined that the restriction placed on that liberty by the California ban, does not fit under any version of “scrutiny” by which courts find limitations on constitutionally-protected activities to be permissible.

Judge Benitez is at his best when he analyses the evidence Becerra puts forward in support of the state’s arguments that the magazine ban is essential to protect public safety.  

The first major study cited by California in its argument to uphold the ban is a survey conducted by the anti-gun group, “Mayors Against Illegal Guns.”  California’s brief then “bolsters” that biased survey (which the Judge finds full of holes) with another “study” of mass shooting conducted by no less an authority than Mother Jones Magazine.  Suffice to say, Judge Benitez was underwhelmed by the state’s “evidence” that the magazine ban would save (or would have saved) victims’ lives when faced with a crazed gunman.

Of course, when all else fails, gun-control advocates cite “common sense” as an appropriate basis on which to restrict Second Amendment rights.  Becerra tries that, too, but Judge Benitez refuses to take the bait. Mid-way through his Order, the Judge declares that Becerra’s opinion – or anyone else’s for that matter – about what constitutes “common sense,” doesn’t come even close to providing a legitimate basis on which to justify restrictions on rights guaranteed by the Second Amendment.  

Finally, Becerra tries to convince the Court that, because the magazine ban was passed by California voters in a popular referendum, it should be afforded extra “deference” by the judiciary.  One can almost hear Benitez laughing as he rejects that argument as a basis on which to limit Californians’ Second Amendment rights.

There is much more that is noteworthy in the Court’s order. Suffice to say that the language and reasoning throughout this stellar opinion, should provide the basis for numerous other court decisions striking down statutory restrictions on constitutionally-guaranteed liberties; and not just those regarding the Second Amendment. 

Judge Benitez’s opinion should be required reading for legislators and government lawyers at all levels.  

Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003 and currently serves as President and CEO of the Law Enforcement Education Foundation.

Townhall.com

Every day, I thank America’s Founding Fathers for their prescience in providing a Bill of Rights to protect against the government arbitrarily undermining fundamental civil liberties.  The actions undertaken by the government in New Zealand in response to the mass murder by a lone gunman earlier this month, provides but the most recent illustration of why our Bill of Rights is so vital to the preservation of freedom.

The First, Second, and Fifth Amendments to our Constitution guarantee — among other fundamental liberties — the rights to free expression, the right to keep and bear arms, and the right to own property free from arbitrary confiscation.   These civil liberties, which we enjoy here in America (and often take for granted), are being decimated by the New Zealand government in the name of “public safety.”

Predictably, of course, has been the effusive praise with which many public officials and media outlets here in the United States have lauded New Zealand’s government for “moving swiftly” in the wake of the March 15^th murder spree in Christchurch; actions making it even more difficult than previously for that country’s citizens to purchase or possess most handguns and many rifles.

It would be surprising indeed, if the American Left had not quickly rallied in praise of New Zealand’s Prime Minister Jacinda Ardern pressing for a sweeping ban on various firearms, including “military-style assault rifles” following the mosque murders. What is less understandable is the silence with which those same liberals who laud New Zealand and bemoan our own government for its gun-control lethargy, have reacted to the other edict issued by that government – criminalizing the physical or digital possession or distribution of the “manifesto” drafted and placed on-line by the gunman shortly before launching his murder spree.

The speed with which a ban on firearms morphed into a ban on speech, to be enforced by New Zealand’s Chief Censor (the official’s actual title), is breathtaking. Henceforth, as decreed by Ardern’s administration, physical or digital possession or transmittal of the killer’s rambling diatribe against immigration is a criminal offense.  Copies of the “officially objectionable” screed possessed by individuals (including the media) prior to the censorship edict, must be destroyed – or an exemption granted by the government — in order to avoid prosecution.

One possible explanation for the silence exhibited by the American Left in response such an obvious blow to freedom of the press and individual freedom of expression, may lie in the fact that the censorship falls squarely at the confluence of two fears most commonly manifested by liberals:  the fear of guns and the fear of “hate speech.”

Common sense should tell New Zealand’s leaders that banning a document already in the public domain does not make it disappear; especially in this internet age.   Beyond the fact that government cannot make invisible that which already is visible, New Zealand’s bizarre effort to do so may in the long run actually impede efforts to prevent future firearms murders in the country (and perhaps elsewhere).

Making it more difficult if not impossible for individuals to study the document drafted and disseminated by the New Zealand killer, removes from the body of research clearly relevant background potentially useful in dissecting the mind of this – and perhaps other – mass murderers.

Moreover, in banning the document New Zealand officials have given a new mystique to a document that otherwise was worth hardly a cursory glance. It also forces those who may be susceptible to the drafter’s hateful thoughts into the shadows to secretly discuss it amongst themselves, rather than leaving the document in the public space to be debunked.

We cannot with comfort assume that the Bill of Rights will continue to protect Americans against illogical and arbitrary power grabs such as is occurring in New Zealand.  A 2017 Annenberg survey found that more than one-third of Americans could not name even a single freedom protected by the First Amendment; a number likely even higher today.

Americans cannot be relied on to defend what they neither know nor understand.   That so many in our country blindly applaud the moves by New Zealand to undermine basic freedoms for all its citizens in response to the bad acts by a single deranged individual, makes clear the depth of the challenge awaiting us.