Lies the government told you

by Andrew P. Napolitano

  The government’s approach to gun control is clearly wrong and terribly misguided. We must not allow the hysteria of a post-tragedy environment to bolster the government’s ability to restrict our rights and prevent us from defending ourselves against killers. The right to defend yourself, your property, your freedom, or any known innocent is a natural right. Your right to use available technology to effectuate that defense is a natural right as well. The Supreme Court of the United States, as we have seen in previous pages, has characterized the right as fundamental. I’ll be blunt: A major reason we have these tragedies like the University of Texas, Columbine, and Virginia Tech is because there are too few of us who carry guns, not too many.

  Our Rights Were Necessarily Infringed

  After Pearl Harbor

  In the past, attacks on our soil have also led to dangerous and unconstitutional government behavior. After the attack on Pearl Harbor, the federal government hastily installed a system of rationing based on its claim that suddenly certain commodities were scarce and the fear that others would become scarce.16 The first items to be rationed were automobile and truck tires, in January 1942.17 During 1942 and 1943, the government also rationed cars, bicycles, typewriters, gasoline, fuel oil, kerosene, coal, stoves, rubber footwear, shoes, sugar, coffee, processed foods, meats, canned fish, and milk products.18

  Rationing severely restricted Americans’ freedom to purchase the type and amount of goods they desired, and also resulted in a black market for rationed goods.19 It also reinforced the federal government’s power over individuals. It was utterly unnecessary. All the rationed goods could be bought for three or four times the government-set price on the black market. Without rationing, market forces would have established the prices at far less than what the black market did. Needless to say, rationing did not apply to the federal government. FDR and Congress had all the typewriters, sugar, coffee, milk, and vehicles they wanted. Americans accepted this like sheep.

  The government also saw fit to strip ethnic Japanese of their liberty after the Pearl Harbor attacks. On February 19th 1942, President Franklin Delano Roosevelt signed Executive Order 9066, which authorized the removal of people of Japanese descent from the West Coast of the United States.20 Congress later passed a law imposing criminal penalties on people who violated the order or the regulations issued pursuant to it.21 Through its new, self-created authority, the government systematically took away the freedom of Japanese-Americans, just as it did in the previous century to African-Americans.

  Initially, curfews were imposed.22 Then, Japanese-Americans were required to report to relocation centers.23 Finally, they were physically moved to concentration camps.24 Gordon Hirabayashi of Washington State was a Japanese-American who, in May 1942, violated curfew and two days later failed to report to register for evacuation.25 Hirabayashi was prosecuted and convicted in federal court for violating the government’s curfew and evacuation order.26

  In Hirabayashi v. United States,27 the first significant case involving Executive Order 9066, Chief Justice Harlan F. Stone wrote the opinion of the court. In order to limit the Court’s task, Stone decided that the Court need only rule on the curfew requirement and could omit discussing the requirement that Hirabayashi report to a relocation28 Stone was able to do this because Hirabayashi was to serve center. his sentences for each offense concurrently; he was to serve only three months in prison, even though he was sentenced to two, three-month sentences.29 The Court ruled 6 to 3 that curfews were permissible because the nation was at war with the Japanese.30 According to Stone, “Distinctions between citizens solely because of their ancestry are . . . odious to a free people whose institutions are founded upon the doctrine of equality. . . .”31 Nevertheless, Stone ruled that discrimination was justified in this case, because “the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. . . .”32

  The Supreme Court had another chance to dismantle the “hysteria” law that was Executive Order 9066, but instead, it validated government regulations that were even more destructive to freedom. In Korematsu v. United States, the Supreme Court held that the government could ship Japanese-Americans off to desert internment camps under the guise that it was a valid security measure. The tremendous racism, xenophobia, and unconstitutional acts that permeated this decision were ignored at the time, because of fear.

  Sensationalism accompanied the fear people had about the risk of Japanese-Americans acting as spies for the Japanese government. At the time, nearly all Americans who were not of Japanese ancestry seemed to support the mass jailing of about 120,000 men, women, elderly, and young children. This was in spite of the fact that about two-thirds of the Japanese people brought to the camps were native-born United States citizens.33

  Justice William Francis (“Frank”) Murphy, an FDR appointee to the Court and one of two justices dissenting in Korematsu, believed that there were limits to military discretion, and he would not submit to what he saw as a clear instance of government abuse. He declared that incarcerating people because of membership in a group that is an immutable attribute of birth “goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.” Justice Murphy warned that “[r]acial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

  He believed that by reasoning that all Japanese people are potentially disloyal to the United States based on the disloyalty of some Japanese individuals, the federal government had adopted “one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.” His words resonate powerfully today, when similar xenophobic sentiments motivate some to doubt the lawful behavior of Muslim-Americans due to the hysteria after 9/11.

  Although many, like Justice Murphy, eventually recognized the internment camps as an atrocity and trampling of rights guaranteed by the Fifth Amendment, the decision in Korematsu was never overruled; which means that it still stands as the precedent for cases involving the incarceration of Americans in the name of national security. Moreover, in the post-9/11 environment, it seems, at least superficially, that most Americans are reluctant to continue the legacy left by the Korematsu case. One commentary about racial profiling after September 11th 2001, argues:

  The tension between national security and civil liberties is taken for granted. Yet the national security side of the equation is speculative and rests on the familiar warning that if this war is lost there will be no rights or liberties for anybody at all. Even those who embraced color blindness, primarily in attacks on racial remedies, have given up their beliefs. Whatever the pros and cons of racial profiling, color blindness and racial profiling are inherently incompatible.34

  In climates of hysteria, it seems that none of our liberties is off limits to the government. Even more vitally, individuals need to be vigilant, recognize, and react when the government is taking away rights—especially those of minority groups, be they racial, ethnic, or religious—that have absolutely nothing to do with security and everything to do with government abuse of power.

  Bioterrorism and a Slew

  of Scary-Sounding Influenzas

  After 9/11 and the anthrax letter scare, the U.S. Department of Health and Human Services announced that it wanted some model legislation regarding how states should react to bioterrorism attacks or other “pandemic” situations. The Model State Emergency Health Powers Act was drafted for the Centers for Disease Control (CDC) by academics at the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities and released on October 23rd 2001.35 The recommended legislation gives the government a great amount of power in “emergency” situations. It can quarantine a town and the people inside of it, and take their property (including civilia
n-owned guns).36

  The so-called model is yet another device to usurp the civil liberties of Americans. In a Heritage Foundation lecture, Sue Blevins, President of the Institute for Health Freedom, an advocacy group for letting the free market regulate the delivery of health care, critiqued the model act:

  Although this model legislation was recommended as a means to help states protect citizens against bioterrorist attacks and deal with national defense issues, the draft bill goes much, much further. It calls for giving state public health officials broad, new police powers—all in the name of controlling epidemics of infectious diseases during public health emergencies.37

  This expansion of the police power could mean almost any amount of power could be allocated to state governments if the state adopts the act, even the power to empower a militia in the name of health regulation, so fundamental constitutional rights are definitely at risk.

  In a statement issued by the Association of American Physicians and Surgeons, the group stated that the model act “turns governors into dictators.”38 After many criticisms were levied, a new model code was written a few months later. This new version contained a few provisions that caused the act to impinge less on civil rights, yet mostly it just removed the inflammatory language of the original draft while keeping most of the substance. The model provisions still allowed for the government to destroy the property of citizens without compensation as long as the government “reasonably suspects” that the items may endanger public health.39 It also still stated that the public health authority can be enforced at gunpoint by “organized militia.”40

  According to the group that drafted the Model State Emergency Health Powers Act (MSEHPA), “44 states and the District of Columbia have introduced a total of 171 bills or resolutions that include provisions from or closely related to MSEHPA” as of July 2006.41 So, the government’s infringement on our constitutional rights is a very real threat. This is an especially real risk given the number of “pandemics” that have appeared recently. My guess is that you have never even heard of these infringements.

  In 2003, when the SARS (Severe Acute Respiratory Syndrome) virus was making headlines and scaring people all over the world, the Centers for Disease Control recommended the quarantine of people who fell ill of the disease.42 The CDC’s Web site also states that if ship or airline passengers who possibly have SARS refuse to be isolated, “many levels of government (federal, state, and local) have the authority to compel the isolation of sick persons. . . .”43 SARS also prompted places like Buffalo, New York City, and the State of Minnesota to come up with plans to quarantine victims of an outbreak or bioterrorist attack. They even set the ground rules for a legal appeals process for those who did not want to be quarantined.44

  In his book, How Patriotic Is the Patriot Act? the philosopher Amitai Etzioni discussed the relationship between bioterrorism and civil liberties: “There is a danger that without such public persuasion and a reframing of the debate—if the adjustment of law and policy will continue to take place under panic, especially following a major attack—public authorities will overcorrect as we have seen in other areas.”45 Since Anthrax in 2001 and SARS in 2003, there have been Bird Flu and most recently Swine Flu. The government has blown these viruses out of proportion, releasing dire warnings, recommendations, and cancelling classes at public schools. The media then take a cue from the government and sensationalize the coverage of these issues with fear-inducing language. Some of the coverage has been so over-the-top you would think the world is coming to an end, when really, the swine flu’s effect seems quite similar to the normal strains of influenza that people commonly get in the winter months, and Bird Flu never materialized as a major pandemic.

  Americans need to learn how to deal with the fears that the government and media are constantly trying to monger, allegedly for our own protection. Otherwise, we allow vital rights to get swept under the rug. Americans need to calm their hysterical tendencies and do it quickly. In late June 2009, Congressman Ron Paul (R-TX), a physician, warned that nearly $8 billion of taxpayers’ money will be spent to fight Swine Flu. He also noted that the government’s interference with the Swine Flu “could result in mandatory vaccinations for no discernable reason other than to enrich the pharmaceutical companies that make the vaccine,”46 and to give the impression that the government is protecting us. The scary thing is that the predictions of this foreboding statement are entirely feasible because of the Model State Emergency Health Powers Act.

  The RICO Laws Are Meant to Keep Us Safe

  from Mobsters

  We’ve all seen depictions of mobsters: The Godfather, The Sopranos, we see them on television and read about them in newspapers. There’s always an air of mystery and intrigue surrounding the mob, and people always fear the unknown. The federal RICO (Racketeer Influenced and Corrupt Organizations) statute was created and passed with the intention to combat organized crime, something that has always been sensationalized by the public. Yet, although RICO was meant to remedy mob crimes, government prosecutors and other lawyers later began to realize that the general language used in RICO could be used to prosecute almost anything. RICO is an especially powerful set of statutes since it has both civil and criminal penalties. Of course, states have salivated at the prospect of seizing such powers as well, and many have passed their own state RICO laws.

  By the mid-1980s, the ABA determined that over 90 percent of the private, civil RICO lawsuits were against legitimate businesses, labor unions, spouses in divorce proceedings, and heirs to wills.47 Near my farm in New Jersey, one politician has actually brought a RICO lawsuit against the local political leaders who dumped him from the party’s campaign ticket and forced him into a primary election. On the criminal side, RICO was being used mostly to bring federal charges against alleged white-collar criminals for things such as inside trading of stocks.48 RICO laws were not meant to be used in any of the aforementioned contexts, but the government has lied repeatedly through its blatant misuse of the RICO statutes.

  When the federal RICO statutes were enacted in 1970, the laws were meant solely to target organized crime groups. Organized crime in America really became a problem after Prohibition-era bootlegging, so the creation of the RICO laws represented a long-awaited federal tool for prosecutors to fight mobs that often spanned many cities and states.49 In The RICO Racket, a 1989 book consisting of a collection of essays written about the misuse of the RICO statutes, then-Judge Samuel A. Alito, Jr. wrote:

  The legislative history of RICO has fueled a vigorous debate about RICO’s intended scope, for while the plain meaning of the statutory language is broad, the great bulk of the discussion in the congressional committee reports and floor debates focused narrowly on the Mafia and, specifically, Mafia infiltration of legitimate business.50

  The language of RICO is unnecessarily broad; but the fact that preliminary discussion of RICO centered exclusively on the Mafia demonstrates that the government has abused these laws.

  The mishandling of RICO becomes particularly troubling given the potentially heavy penalties that accompany a RICO violation, which include long prison sentences, large fines, and the forfeiture of property. Many of the contract or tort claims that get brought under RICO would not have penalties nearly as severe if RICO was not invoked. In this way, the broad use of RICO fills our prisons and wastes money prosecuting things that generally would be punished with less severity under the proper state law.

  Furthermore, the threat of harsh federal penalties creates further inequities in terms of the power differential between prosecutors and defendants. One Reason.com article states:

  Many critics have pointed out that disparate punishment by state and federal jurisdictions for the same crime invites abuse of prosecutorial discretion at both state and federal levels. State prosecutors may use the threat of a federal prosecution as a bargaining tool to wrangle a guilty plea. Federal prosecutors may decide to prosecute only those defendants whose convictions will bring political r
ewards. Federal prosecutors are free to cherry-pick high-profile or politically expedient cases, knowing that the cases they reject probably will be prosecuted in state court.51

  Under RICO, people are charged with racketeering (which could realistically be anything), instead of the actual crime (such as fraud, illegal gambling, etc.). William L. Anderson, an economics professor at Frostburg State University in Maryland, and one of the country’s leading authorities on abuse of the criminal law by state and federal prosecutors, points out the difference in standards the prosecutor must meet in RICO cases versus regular criminal prosecutions:

  Because RICO cases are tried in federal courts, U.S. attorneys do not have to prove to juries and judges that the accused engaged in the aforementioned crimes (which as a rule are violations of state criminal law); they must show only that it appears the defendants carried on those activities. Moreover, for a RICO conviction, the prosecutor must meet only the civil standard of “preponderance of the evidence,” not the higher standard of “guilt beyond a reasonable doubt” that historically has been required for a criminal conviction.52

  Moreover, many of the “crimes” being prosecuted at the federal level are plainly not federal in nature, meaning they were meant to be handled by the states. Thus, the misappropriation of RICO violates the constitutional principle of federalism and contributes to the inefficiencies of the federal court system.53