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Why Should Axing Due Process Stop With The Second Amendment?


First, it would be so nice to write about something — anything — unrelated to Donald Trump, but even the current House of Representatives scrap over gun rights reflects the debased and foolhardy political season in which we live. Stupid, flashy, and post-constitutional is the new hotness. I’m old enough to remember when Democrats would fight like wild dogs to protect even unenumerated and implied constitutional rights, but hey, it’s guns, right?

For the last 24 hours Democrats have been testing House Speaker Paul Ryan, garnering national media attention and generally trying through bluster to achieve what they can’t with votes. The sit-in ended not because of principle, but because Democrats knew the media would get bored in the next few hours, the weekend beckons, and Trump’s rage over not being the center of media attention would drag the cameras away. As camera-friendly and amusing as the protest was, there are broader and more important lessons to derive from this sudden ease in which Democrats propose to eliminate our rights.

My objection to the no-fly no-buy proposal, while certainly based on Second Amendment grounds, is more broadly one of opposition to any system that allows almost entirely unaccountable bureaucrats to restrict constitutional rights without notice, recourse, or accountability. No matter how meritorious you believe your cause to be, excising rights at the behest of a government executive or agency should terrify any right-thinking person. If you think the terror watch list is merely an affront to the Second Amendment, you’re not paying attention.

This Is a Real Slippery Slope

It doesn’t take a lot of effort to create a gedankenexpriment where the erosion of rights embodied in the Fourth and Fifth Amendments is the next stop on turning the Constitution into a Chinese menu where one party removes rights from Column A and the other from Column B. Just saying, “But guns…” doesn’t make it less dangerous.

The Fourth Amendment protects against unreasonable searches? Surely, these dangerous terror masterminds on the watch list should be monitored with warrantless wiretaps? Perhaps the FBI should install keyloggers on their computers, plant spyware on their phones, and monitor their private email and social-media messages? Why bother with a warrant or due process? They’re on the list. (As an aside, I’m old enough to remember when the Democrats viewed the National Security Agency’s programs to monitor potential terrorists as an impeachable offense and a profound affront to the Constitution.)

On Twitter today, I jokingly proposed removing the Third Amendment rights of those on the no-fly list so we can quarter soldiers in their homes. It’s a simple fix, and seems like a cost-savings for the government and a deterrent to terrorist shenanigans. Why not really go for the Constitution-shredding gold and suspend the Fourteenth Amendment rights of people on the no-fly list? At that point, they’re not even human. Problem solved!

“But but but…that’s impossible! We’re only talking about guns!” will be the inevitable response from Democrats. The problem here is American history, where even the rights of American citizens have been broken, suspended, and sacrificed by government in the edges of political and moral panics, or in time of war.

Unchecked Government Terrorizes People

On a hundred-year time scale you have more to fear from an unaccountable government than you do from radical Islam. A bureaucracy empowered to place you on a list where your rights can be excised or suspended will follow the inevitable path of all government agencies and programs: its scope will grow, it will become more opaque and resistant to oversight, and it will resist reform at every moment. Islamic terrorists have signifiers, tells, and structures we can attack with either our intelligence services or military options. Government agencies are nearly impervious to all forms of challenge.

The list that denies a potential terrorist the right to buy a gun today may expand to animal rights activists or Black Lives Matter protestors or anti-abortion campaigners tomorrow, all depending on the whim of the executive or even some a nameless bureaucrat. A list that stops you from boarding a plane today is a list that might deny you a license to drive, speak, or vote tomorrow.

The failure in Orlando wasn’t about guns; it was about law enforcement lacking the motivation and the tools to keep an eye on people sending every red-alert signal in the book. It was about failing to persistently target and track bad actors. It was about the FBI lacking either the will or the resources to monitor and follow Omar Mateen, despite feeling so strongly about him that they attempted to entrap him in the kind of terrorist act he later committed. He was an extremist well before he became a terrorist.

As a conservative and a constitutionalist, I embrace the essential friction our founding document imposes as a check on both the impulses of the state and of the people. A few steps back from the facile arguments about guns and terror is the terrain we should be looking to when we consider whether to place Americans on a list that denies them an enumerated constitutional right, even if Democrats don’t like it.