Has the Constitution Become The Real “Public Nuisance?”

by Liberty Guard Author


by Bob Barr

The “public nuisance” legal theory cited recently by an Oklahoma judge as the basis on which to hold a drug manufacturing company liable for opioid abuse in that state, joins other dubious legal and public policy mechanisms as tactics with which the gun control movement aims to achieve its long-desired goal of disarming law-abiding Americans.  The movement’s advocates are framing the legal and public debate about gun violence in much the same way as that surrounding the opioid problem – as an “epidemic.”  The strategy is the same – driven by fear, not facts.  

Headlines designed not to educate but rather to stoke emotions are the norm.  Language and semantics are employed with little if any regard to accuracy, but with every intent to elicit the public’s fear.   

Factually, for example, firearm violence is down.  Millions of AR-15 style rifles are owned and used safely by millions of law-abiding citizens regularly.  Fully automatic firearms still are unlawful except in the hands of the military, law enforcement, or the very few individuals specifically licensed by the federal government to possess them.  

Regardless of facts such as these, however, the media and Democrat presidential candidates continue to scream that “weapons of war” like the semi-automatic AR-15 rifle — claimed by them to have been designed for the “sole purpose of killing as many people as possible as quickly as possible” — are everywhere and must be banished from every home and business in the country.  With histrionics like these, it is no wonder politicians and even judges look to every possible way to “do something”; even if it means using laws on the books for purposes never so intended. 

Public nuisance laws are by no means a new arrow in the quiver of gun control advocates. Former New York City Mayor Michael Bloomberg used New York’s public nuisance law in the early 2000s to go after firearms retailers in states as far removed from the Big Apple as Georgia.  His overall plan fizzled, but he did succeed in putting several small firearms stores out of business because their owners could not afford the legal fees needed to defend against his abusive lawsuits.  The current New York state government is employing the same public nuisance strategy, among others, in a drive to put the NRA (which is chartered as a non-profit entity in the state) out of business.

Never a Party to be deterred in its drive to limit individual liberty guaranteed by the Second Amendment, Democrats are pulling every trick out of the bag this election cycle.  Calls for “red flag” laws, AR-15 “buy-back” mandates, and “universal” background checks, vie with calls for “impeachment” for top billing at Democrat town halls and debates.     

The fact that each of these (and other) proposals contain provisions that violate various parts of our Constitution, appears of little import when balanced against the overarching need to “do something.”   Just as long-standing legal principles must give way in the face of cries to “do something” to address the “opioid crisis,” so too must “outdated” notions of gun ownership succumb to the 21st Century “crisis” of gun violence.

The notion that whatever “crisis” is declared at any given time by government or by those seeking to become part of the government, justifies whatever means are deemed necessary to overcome it, is by no means limited to the crusades against opioids and guns.

Just last week, for example, in the name of fighting international terrorism, the federal government demanded that Apple and Google turn over names and other identifying information on thousands of individuals who downloaded an app designed to improve the performance of a particular rifle scope.  Neither the companies that developed the app or manufactured the scope, nor any individuals who downloaded it, are suspected of having committed any crimes that would provide the basis required under federal law or the Fourth Amendment for such broad inquiry by the government.  

Apparently, however, the simple assertion by the government that it needs this trove of information in order to pursue an investigation of users in other countries in possible violation of federal export laws, is deemed by the Justice Department to be sufficient basis on which to make such a privacy-invasive demand.

In a time that seems so very long ago, our courts would step in and protect against constitutional, legal and policy overreaches such as these.  Sadly, however, that safety valve can no longer be assumed to be there.

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