Liberty Guard Author

New York’s Anti-Gun Fervor Reaches A New Height
Townhall.com
By Bob Barr

Not content with enacting some of the most stringent anti-gun laws in the country and abusing its regulatory power by browbeating insurance carriers to not do business with the NRA, New York has launched a new broadside against the Second Amendment.  In a move that should set off alarm bells with privacy advocates everywhere and with anyone who uses or has used social media, legislation has been introduced in the state legislature that would force residents seeking to either purchase a rifle or a shotgun from a lawful dealer, or seeking to obtain or renew a pistol permit, to surrender to law enforcement access to their social media history along with their use of internet search engines for the previous three years.

This monstrosity of a bill undermines not only an individual’s Second Amendment rights, but those guaranteed by the First, Fourth and Fifth Amendments as well.   State Sen. Kevin Parker, a Democrat from Brooklyn, is the proud sponsor of the legislation.  And, knowing that a majority of his colleagues in the legislature have in the past demonstrated as little regard for constitutional rights as Parker when it comes to the Second Amendment, his bill could very well find its way to Gov. Cuomo’s desk, where it would be gleefully signed into law.

In Parker’s view of things, invading a person’s privacy as his bill would do, apparently is a reasonable response to the tragic shooting at a Pittsburgh Synagogue in October.  The reality is that Parker’s idea is nowhere close to reasonable or constitutional.

What, exactly, would New York’s Finest be looking for, in such canvassing of citizens’ social media and internet search history? According to the proposal, they would be on the lookout for any “issue deemed necessary by the investigating officer.” In other words, anything a law enforcement officer might find suspicious or not in accord with their notion of what an actual or prospective gun owner should be looking at on the internet or communicating via social media.

How would these law enforcement snoops gain access to citizens’ private social media and internet information?  Simple.   As a requirement for completing the paperwork necessary to purchase the firearm or to obtain or renew a permit, the person would have to give the police their log-in credentials and passwords. In so doing the individual loses control over all their data — past, present, and probably future.

This 21st Century internet fishing expedition, fueled by New York’s longstanding disdain for the Second Amendment, would accomplish two things; neither of which is good.

First, having to submit to such an intrusive search of one’s social media and internet usage, will have a chilling effect on individuals seeking to purchase or carry a firearm. This, of course, is exactly what Parker and his cohorts want – fewer and fewer citizens being able to exercise their Second Amendment rights.

Second, and even more important, giving law enforcement the power to scour at will your personal social media and internet history, means they can (and will) look for anything that from their perspective, indicates actual or potential unlawful or inappropriate behavior (including matters having nothing to do with firearms), and therefore worthy of further investigation and possible prosecution.

Not to be deterred, Parker and others who support his anti-Second Amendment crusade, likely would argue that the searches that would be undertaken if his proposal becomes law, would be “voluntary” since the purchaser or applicant is giving “consent” simply by expressing a desire to buy or carry a firearm.  Such twisted logic is used by governments at all levels all the time.  First, government mandates that citizens comply with certain regulations if they want to exercise a right (whether that be possessing a firearm, engaging in a financial transaction, or something else).  Next, government uses the information thus obtained against the citizen. Finally, government lawyers defend against constitutional challenges by arguing that the citizen “consented” to the government’s action.

This is a clever circular argument favored by the Regulatory State, and which is all too often accepted by federal and state court judges.

Concerns such as these, rooted in the Fourth Amendment’s protection against unreasonable searches and seizures, don’t even address other constitutional defects in Parker’s proposal; among which are its chilling effect on free speech as guaranteed by the First Amendment, and the Fifth Amendment’s protection against self-incrimination.

During one 2016 Republican presidential primary debate, Donald Trump took Sen. Ted Cruz to task (quite effectively) for criticizing “New York values.”  If those values are represented by legislation such as Sen. Parker is proposing, then Cruz made a valid point.

Bump-Stock Prohibition Sets Dangerous Precedent
The Daily Caller
By Bob Barr, President & CEO of the Law Enforcement Education Foundation

In one of the more blatant examples of a federal agency abusing its power and usurping the power of Congress to legislate, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), reportedly is ready to declare that “bump stocks” are “machine guns” and therefore unlawful to be possessed, except under strict licensing.

Gun control activists certainly will cheer this action once it is finalized (which reportedly will be later this month), and the average citizen, if asked, likely would agree that bump stocks should be illegal following the well-publicized use of such a device by mass murder Stephen Paddock in Las Vegas in October 2017.

The manner by which the administration is going about making the devices unlawful, however, should be of great concern to all Americans who care not only about sound federal firearms policies but, even more important, the rule of law.

Normally, and according to Article I of our Constitution, if the government deems certain activity – such as possessing a machine gun – to be of sufficient danger and therefore should be illegal, the Congress (not an Executive Branch agency) passes legislation to that effect. If signed by the president, that activity becomes unlawful. This is what occurred in the immediate aftermath of Prohibition when the National Firearms Act of 1934 went into effect.

That Act defined what a “machine gun” is (essentially a firearm capable of firing more than one round with a single pull of the trigger) and declared that only licensed persons strictly regulated would be permitted to possess such a firearm.

The Gun Control Act of 1968 added further restrictions in this area. Thus, it has been well-understood for more than 80 years what a machine gun is and that their possession by citizens-at-large is unlawful.

In the aftermath of the horrific Las Vegas shooting, several members of Congress introduced legislation that would prohibit possession of bump stocks, which are plastic composite devices that fit over a rifle’s stock and trigger guard to enable faster trigger pull, mimicking an automatic rifle but with far less accuracy.

These efforts have faltered, largely due to the overly broad definitions in the legislation.

Into the breech stepped ATF; exercising the Bureau’s power to regulate (not “legislate”) firearms.  The manner by which ATF has taken this ball and run with it is devilishly clever; not only accomplishing the goal of outlawing bump stocks but setting a precedent that almost certainly will be used by the Bureau and others in the future to expand their reach and power.

ATF (and the Department of Justice, in which ATF is a component) decided to accomplish the goal of outlawing bump stocks not by defining them as a new device to be restricted (which would be subject to challenge as usurping Congress’ power), but by simply “clarifying” the definition of a “machine gun” in existing law to include a “bump stock.”

Thus, by regulatory sleight-of-hand, a bump stock becomes not an accessory to a machine gun but an actual “machine gun.”

Think about it: A piece of composite plastic, with no moving parts and incapable by itself of firing any projectile, is now, pursuant to ATF’s machinations, a machine gun; and notwithstanding that just a few years ago, that same ATF expressly had deemed such devices lawful.

It gets worse. The regulations, which were proposed last March by then-Attorney General Sessions, direct that anyone who possesses a bump stock after the regulation goes into effect, must destroy it or turn it into ATF; failure to do so will subject the person to a federal felony conviction.

So, a device that was lawful when acquired is made unlawful not by law but by regulatory “clarification” (George Orwell would approve of such newspeak).

The list of constitutional infirmities with ATF’s approach is lengthy; and includes taking of property without due process of law, making a lawful act unlawful after the fact (an ex-post facto law), and failure to provide fundamental due process of law.

It is one thing for the citizens of this country to decide, through their representatives in the Congress, that bump stocks should be illegal. It is quite another for unelected bureaucrats to do so, especially in a manner that makes a mockery of lawful, constitutional process and then sets a precedent for further such constitutional mischief down the road.

This is a road down which neither the Congress nor this president should allow ATF – or any federal agency to travel.

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
Have Federal Courts Become the ‘Tyrants’ our Founders Feared?
By Bob Barr

In many ways, President Donald Trump’s border fight is a battle on two fronts; one at the border with Mexico, and the other in the federal court system. Reports of violence against U.S. Border Agents at our southern border with Mexico should remind us that securing the border is a fundamental responsibility of the President. To at least some left-leaning federal judges, however, that responsibility is so unimportant that they have attempted to tie both of Trump’s arms behind his back as he tries to gain control of the chaos down south. It is fast reaching the point at which a fundamental decision must be made; one with profound consequences: who runs our country, the president or the unelected judges?

The spark igniting this constitutional fire may very well be upon us if President Trump closes the border with Mexico, in the face of an imminent threat of a horde of non-citizens pressing to cross into our country unlawfully, and keeps it shut down until Mexico deals with the problem on its side of the border. If a federal judge is then found who is more sympathetic to improving the quality of life for citizens of other countries than to reaffirming the authority of an American president to protect our constitutional Republic, and enjoins Trump from thus acting, we will have to confront the question that worried our Founding Fathers – are there any limits to what judges can decree?

As constitutional conservatives, our default position is, and should be, that we are a “nation of laws not of men”; a sentiment dating back to 1803’s Marbury v. Madison opinion by Chief Justice John Marshall. It is a position that protects citizens from unlawful conduct of government, and is the backbone to the system of checks and balances undergirded by the U.S. Constitution. This would seem especially relevant in the context of securing the border, an exercise which is the most basic element of sovereignty and national security.

But, with federal courts now reflexively inserting themselves into the day-to-day governance of our country, particularly directing their ire at this president, we as a nation have to answer the question of just how far judicial authority extends, and whether a president is allowed do anything without approval of the federal courts.

It would not be surprising, and certainly within Trump’s personality, to take the same tack as President Andrew Jackson did in 1832; defying a Supreme Court decision (also delivered by Marshall) with regard to the forced migration of Cherokee Indians from Georgia to Oklahoma (the “Trail of Tears”). Jackson is said to have grumbled, “John Marshall has made his decision; now let him enforce it!” As we know, Jackson’s fateful (and inhumane) decision became a stain on American history’s; but it did pose the question of whether there is any practical limit to the power of the Supreme Court to stop a President from taking executive action.

The constitutional dilemma is of particular importance in today’s context given the rampant partisanship festering at the seams of all three branches of the federal government. Despite Chief Justice John Robert’s almost laughably naïve comments recently that there are no differences between judges appointed by different presidents, we are witnessing federal judges issue rulings (often now by way of injunctions) cutting closer and closer to the bone, of whether a president can do anything without risk of being cut off at the knees by liberal judges occupying lifetime-tenured positions.

The situation has become truly absurd. For example, whether a blowhard White House reporter is allowed to ask questions at a press briefing, is now grounds for judicial oversight. It is as if the president must play “Mother, May I” with the courts before taking any action, no matter how minor. This is not a sustainable way to govern any nation, much less the United States; nor is it in the true spirit of checks and balances as our Founding Fathers intended.

If a president cannot take steps to stop a “clear and present danger” at the nation’s border without judicial permission, then we have in effect reached the point at which unelected judges are truly running the country; dictating from the bench what a president can and cannot do to keep our nation safe.

It is one thing to argue that the Supreme Court ultimately must decide the constitutional validity of our laws — it should. However, it is quite another to posit that every presidential action has to be first reviewed and approved by the courts, even if it means permitting a mass of non-citizens to forcibly enter our country. If that occurs, we truly will have traded one English tyrant overseas for 3,200 here at home on the federal bench. And that is a scenario we cannot permit to occur.

Townhall.com
NOVEMBER 21, 2018

Have Republicans Been Hypnotized By “Red State-Blue State” Maps?

Bob Barr
11/21/2018 12:01:00 AM – Bob Barr

In recent years, “Blue State/Red State” maps have become a ubiquitous, shorthand way to describe our political landscape.  Unfortunately, and much like how a carnival hypnotist employs a soothing and repetitive motion to transfix his victims into behaving absurdly, many Republican pundits appear to have become so mesmerized by seeing “Red States” as “Republican,” that they have failed to recognize — much less understand — the significant demographic and political changes that have taken hold within those state; changes that have rendered traditional notions of political analysis largely ineffective.

You do not have to be a high-paid political consultant to see this.

As I traveled the country for business and pleasure in recent years — visiting “Red States” like Texas, Iowa and Montana (including, of course, my home state of Georgia) — I saw (and continue to see) example and after example of state and local “Republican” officials respond to voters’ desires to improve their “safety” and “quality of life,” by increasing spending and services.

Even in traditionally Republican enclaves, voters are electing and re-electing officials who are eager to meet those desires, by raising taxes, “fees” and public debt, and by placing further controls on businesses. All this in an effort to satisfy largely suburban voters’ demands for everything from parks to aquatic centers and billion-dollar sports arenas.

This game plan becomes a habit that increasingly acclimates voters to view intrusive government at all levels, as benign.

In such an environment, it is only a small step for voters to choose candidates for office who are ever more willing to meet their desires for expanded and “improved” government services; in short, to vote Democratic.

Republican elected officials, their political consultants, and conservative media “talking heads” all seem to have lost sight of the forest for the trees; focusing on the “Big Picture,” and overlooking the erosion of conservative principles of governance where the rubber meets the road – at the local level.

While President Donald Trump has done more than any president since Ronald Reagan to reduce regulations at the federal level, on the ground in states across the country the Regulatory State is booming.  In states Red, Blue, and Purple, nominally Republican state and local officials continue to create new laws and regulations rather than erasing existing ones.

The result is a pronounced leftward drift in virtually all aspects of life at the local level. Taxes increase as Republicans acquiesce to multi-million-dollar bond initiatives for pet projects like sports stadiums and movie studios. Massive tax incentives are freely offered to companies in return for vague promises to create “high-paying jobs” down the road. Increasing business regulations, licensing requirements, and zoning restrictions make it harder for budding entrepreneurs to launch new businesses or expand current ones. Anti-smoking regulations and even gun-control measures are being shepherded by Republicans under the guise of “public safety” and “quality of life.”

With each such measure, Republicans cede ground; political territory growing difficult to regain. Most importantly, such behavior conditions voters to turn increasingly to state and local government to address and solve problems, rather than the private sector.

The impact of this philosophical shift cannot be dismissed, as seen clearly in this month’s high profile races in Georgia and Texas. That the GOP could very nearly lose a Senate race in Texas or a gubernatorial race in Georgia, should be a blaring wake-up call to Republicans that the electoral color of a state, or the letter next to a candidate’s name, no longer means what it used to mean; and certainly nothing that can be taken for granted.

The GOP now is so far behind the power curve, that reversing the trend – if even possible at this stage — will take a Herculean effort, over more than a single election cycle. That effort starts with messaging and ends with action consistent with that messaging; both are needed, but neither appears in ready supply among Republican leaders in Washington.

Deficit spending continues unabated. Meanwhile, little interest is shown by Republican leaders in Congress to move legislation that would appeal to minority and independent voters in particular, and which also are firmly rooted in traditional principles of conservative governance; this would include such measures as criminal justice reform and loosening federal restrictions on adult use of marijuana.

These and other steps should be easy wins for the GOP; but the process can only begin if the GOP removes the rose-colored glasses through which it sees the just-concluded mid-term election as a “victory” simply because the Party picked up a couple of seats in the Senate.

The problem for the Republican Party goes far deeper than a national coloring book with red and blue crayons.  If the Grand Old Party does not quickly and seriously work to reclaim and reinvigorate its philosophical high ground, there will be none left to claim.

Former GOP Congressman: Marijuana and the 2018 election — did we miss something?
By Bob Barr

FoxNews.com

Largely lost in the massive attention focused on the electoral results of 2018’s congressional voting, were the many ballot initiatives and state constitutional amendments on which votes were cast.  These ranged from victims’ rights to environmental issues and voting rights for ex-felons.  One of the more important of these issues, at least from a national policy perspective, were the half dozen ballot questions liberalizing state laws on marijuana.

The stars may now be aligning in such way that the federal government will either follow the states and relax marijuana possession laws, or at least formally back off and leave those states that have done so, alone.

As a result of the November 6 elections, 10 states and the District of Columbia now permit adult recreational use of marijuana.  This reality would have been virtually unimaginable less than two decades ago when I served in the House.  The trend toward legalization of adult toking, coupled with the change in the House majority from Republican to Democrat that will take place formally in two short months, significantly improves the chances that the federal government’s position – which still classifies marijuana as among the most dangerous of “controlled substances” – will actually soften.

The forced departure of Attorney General Jeff Sessions – long a foe of  relaxing any marijuana laws or policies, including its use for purely medicinal purposes — may provide the accelerant needed for such an event to ignite; especially since President Trump has spoken in favor of leaving the question of adult marijuana use up to the voters in the several states.

It now is apparent, at least at the state level – which is where principles of federalism place this issue – that voters deciding to relax laws against use of marijuana has become a winning issue; not everywhere, certainly, but in several states from east coast to west.

One of the more vocal anti-marijuana Members of the House, Texas Republican Pete Sessions, lost his reelection bid; and the question of marijuana legalization appears to have been a factor in his race.

For advocates of federalism (a group that included our Founding Fathers), this represents a welcome and long-overdue change. Decisions by state voters to relax marijuana laws constitute serious blows against the heavy-handed status quo that had reigned since 1970, when the federal government adopted the Controlled Substance Act and essentially trumped all state marijuana laws.

Technically of course, federal law still decrees it is unlawful for anyone to use, possess, grow, or sell marijuana; and so long as the federal CSA remains on the books unchanged, this will continue to hold true.  From a practical perspective, however, as an increasing number of states take the approach that personal use of marijuana by adults does not pose an existential threat to their citizenry, the federal government will find it increasingly difficult to justify prosecuting such activity.

This is where the Congress may step in, and at least indirectly support such state actions. Recent, and consistent national polling suggests strongly that if Congress does move to soften federal anti-marijuana laws, it would have the clear majority of citizens on its side.  A poll by the respected Pew Research Center conducted just last month, for example, revealed that some 62 percent of Americans support some degree of marijuana legalization.

Interestingly, one of the more vocal anti-marijuana Members of the House, Texas Republican Pete Sessions, lost his reelection bid; and the question of marijuana legalization appears to have been a factor in his race.  The impact of Sessions’ loss could be a major one, insofar as he chairs the important Rules Committee, and has employed the power of that post to block floor votes on actions that would protect states that have legalized adult use of marijuana from punitive federal action.

With the change in majority in the House, not only will Members with views more favorable toward states relaxing marijuana laws be chairing key committees, but bipartisan legislation that would protect states that legalize adult marijuana use from being penalized by Uncle Sam, may be afforded a vote. This legislation would be consistent with a rider that has, for the past four years, been attached to the Justice Department appropriations bill, and prohibits (despite strong efforts by Sessions to have it repealed) the Department from using any of its appropriated monies to prevent states from implementing laws allowing medical use of marijuana.

With so-called “Red States,” including Missouri and Oklahoma joining “Blue State” counterparts in leaving it to the voters to decide whether to relax state marijuana laws, and with the changes already set in motion in the House of Representatives and the Administration as a result of the mid-term elections, real change to federal marijuana policy may very well be in the wind.

Former Rep. Bob Barr was a member of the U.S. House of Representatives from Georgia from 1995 to 2003. He now practices law and heads Liberty Strategies, a consulting firm in Atlanta.