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Cutting Constitutional Corners Won't Save Us From Terrorists

No-gun zones like the one in effect where the San Bernardino shooting took place are not only unconstitutional but also an invitation to disaster.

Steve Snodgrass/FlickrSteve Snodgrass/FlickrIf you were looking for a needle in a haystack, simple logic would tell you that the smaller the haystack the likelier you are to find the needle. Except for the government.

Since Edward Snowden revealed the federal government's unlawful and unconstitutional use of federal statutes to justify spying on all in America all the time, including the members of Congress who unwittingly wrote and passed the statutes, I have been arguing that the Fourth Amendment prohibits all domestic spying, except that which has been authorized by a search warrant issued by a judge. The same amendment also requires that warrants be issued only based on a serious level of individualized suspicion backed up by evidence—called probable cause—and the warrants must specifically identify the place and person to be spied upon.

Because these requirements are in the Constitution, which is the supreme law of the land, Congress and the president and the courts are bound by them. There is no emergency or public safety or wartime exception to them. These requirements cannot be changed by legislation; only a constitutional amendment, ratified by the legislatures of 37 states, can do so.

All of this is what lawyers and judges call black letter law—meaning it is well-understood, has not been seriously challenged and is nearly universally accepted. Except by the government.

The government—which thinks it can right any wrong, tax any event, regulate any behavior, and interfere with any right—also thinks it can keep us safe from the terrorists among us by cutting constitutional corners, which it has done many times since 9/11. Among the constitutional corners it has cut is unleashing its 60,000 domestic spies upon us with orders to disregard the constitutional requirements for spying on Americans and gather all the data about us that they can by listening to phone calls and reading emails, as well as gathering the banking information, credit card information, utility bills, postal mail, and medical records of everyone in America, without regard to individualized suspicion.

The government's behavior is premised upon the false belief that it can morally and constitutionally interfere with our natural right to privacy without due process and upon the absurd belief that surrendering personal liberty somehow keeps us safe.

As we know from the tragedy last week in San Bernardino, California, the government's strategy and practices failed to keep us safe. The governmental failure at San Bernardino was the confluence of a state government with antipathy and animosity toward the natural right of self-defense and a federal government attempting to devour far more data than it can handle.

The San Bernardino killings—like those in Newtown, Connecticut; at Virginia Tech; in Roseburg, Oregon; and in Paris—occurred on or near government property where lawful guns were banned. These no-gun zones are the most dangerous places on the planet when a person armed to the teeth and determined to kill enters upon them.

In the no-gun zone in San Bernardino where the killings occurred, even off-duty or retired law enforcement personnel, trained and continually qualified in the use of firearms, and private people lawfully authorized to carry handguns are required to check their guns at the door.

Can the civilian use of guns keep us safe? Of course it can. The police simply cannot be everywhere. Anything that diminishes the shooting-fish-in-a-barrel environment of no-gun zones is an improvement over the carnage we have witnessed in them. Think about it. In every mass killing—every one of them—when someone with a gun arrives determined to stop the killing, it stops; the killer flees or is disabled or is killed or dies by suicide.

No-gun zones are not only unconstitutional legislative limitations on the natural right of people to use modern-day means for self-defense but also an invitation to disaster. And they are established by local municipalities with the consent of state governments.

The federal failure is born of an antipathy to constitutional norms and a reluctance to engage in meaningful human intelligence on the ground. Instead of gathering all they can about everyone, the feds should concentrate on those about whom there is some reasonable belief to warrant some investigation. The feds should know the neighborhoods where the suspicious live and work as well as they know their own computer screens.

Even the National Security Agency (NSA) itself has admitted to data overload. In 2013, the director of the NSA at the time, Gen. Keith Alexander, was asked how many plots his spies had unearthed in their then-seven years of spying on everyone in the U.S., and he replied under oath, "About 54." Then he corrected himself and amended his answer to one or two. When asked to identify them, he declined.

Why weren't a recently married couple with Middle Eastern backgrounds—one of whom had been born here, the other of whom had immigrated here and achieved permanent legal residence only through marriage; both of whom recently had been stockpiling huge amounts of military-style weaponry and ammunition; both of whom had just received more than half their combined annual income in a single wire transfer to their joint bank account; both of whom had been practicing the use of their hardware at a gun range; one of whom had been known to hate Jewish people and had suddenly left his local mosque—generally known to the all-seeing and all-hearing NSA?

Because the NSA has abandoned traditional techniques of on-the-ground, in-your-face human intelligence in favor of sitting in front of computer screens. And that has produced a haystack of data so gigantic in size that by the time the needle of terror plotting has been found, it is often too late.

COPYRIGHT 2015 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

Photo Credit: Steve Snodgrass/Flickr

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. 

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  • dan'o en barrel||

    Preach on judge. Miss your show and still pull up highlights youtube from time to time

  • dan'o en barrel||

    highlights *on youtube

  • Quixote||

    Hopefully they will point out that while cutting so-called "constitutional" corners might not help defeat physical acts of terror, it certainly can help suppress inappropriately deadpan "satire" that intimidates the population by endangering the reputations of well-connected members of the academic community. See the documentation of America's leading criminal "satire" case at:

    http://raphaelgolbtrial.wordpress.com/

  • Vampire||

    It's the same story to grab more power and take away the liberty of individuals.

    Because criminals hell bent on destroying the lives and property of individuals. They want to momitor and take away an individual's right to self defense.

    Because places are suffering blowback for all of this military intervention, which has caused pain, injury and loss of life not only to innocent individuals, but those who fight these wars and interventions on behalf of these warmongers, the gov't wants to monitor, track, and violate the privacy of law abiding individuals, and also in this case take away their right to self defense.

    They are so incapable of protecting life and liberty. Yet they want to take away the liberty, and property of peaceful individuals through extortion and currency debauchery all for a false sense of security.

    Hopefully the peaceful, private production of services, and security can replace the inneficient and ineffective services provided by the state. But the state will never acknowledge an individuals desire to be free, and to choose things through voluntary imteraction and transactions. Any peaceful attempt to opt out, will be met with violence from the state, as they use any means to hang on to their power.

  • Vampire||

    Judge Napolitano, you should have ran for president. The sad state of the current crop, and those close to being elected will never have the goal of expanding individual liberty, to the point that individuals would be free to govern themselves without a master, and be free of the extortion and violence that the master forces upon them.

  • Unicorn Abattoir||

    And instead of an endless string of lies at the State of the Union address, we'd get an endless string of rhetorical questions.

  • Tionico||

    but at least some folks might have their curiosity piqued by considering those rehetorical quetions.... and maybe, just MAYBE, one or two might begin to see past the smoke and mirrors and wake up. Why have YOU not considered this approach?

  • dan'o en barrel||

    Shit, I think I woke up my kid from laughing too loudly. Yea, I guess rhetorical questions is his shtick

  • Pat (PM)||

    There should be a SLD that, of course, on private property, the policy on the carrying of weapons should be the prerogative of the property owner.

    Also, virtually nothing about the shooters that, in hindsight, constitutes a "red flag" should have been the business of any domestic spying or law enforcement agency - including the type or number of weapons they purchased, the type or amount of ammo they purchased, their financial transactions, their time spent at the gun range, or their personal bigotries. Until they actually came out shooting, there really wasn't anything (with the possible exception of their public declarations of loyalty to ISIS on social media) that would constitute probable cause to delve into any of those things, whether it was done from behind a computer screen or by hardworking gumshoes on the ground.

  • Only Man||

    I agree. I bristle somewhat at Napolitano's 2nd to last paragraph. Is he implying that the government SHOULD have known all those things and acted on them? How would they find those things out without the current nefarious system in place (or a worse one)? I think his article would be better without that paragraph as it would leave the implication in place, which I think is accurate, that almost nothing could have prevented this or any other shooting, at least from beginning. The possible exception could be if there was something actionable/illegal observed and reported by someone close to the shooters such as family/neighbors (not a government citizen-monitoring agency), maybe local police could take interest, but even that I generally think either wouldn't work or shouldn't work. I don't want local police coming and harassing me every time I put a long gun in my truck to go hunting because nosy anti-gun neighbors called them.

  • Rockabilly||

    Most of the federal government is un Constitution and should be abolished ASAP

  • Loki||

    that has produced a haystack of data so gigantic in size that by the time the needle of terror plotting has been found, it is often too late.

    All they can ever seem to do is go back over the data after an attack and the attackers have been identified and "connect the dots" after the fact. They've basically become Captain Hindsight.

  • Akira||

    It's the same story with gun registration. I remember after Sandy Hook, some official in Newtown made a big announcement bragging about how they tracked the gun purchase to a specific gun store in town.... So fucking what? What good does that information do now that the children are buried?

    I guess it's the persistent desire of every politician to be seen Doing Something™.

  • Enjoy Every Sandwich||

    The government—which thinks it can right any wrong, tax any event, regulate any behavior, and interfere with any right—also thinks it can keep us safe from the terrorists among us by cutting constitutional corners

    My only quibble with this fine article is that Judge Napolitano gives the government too much credit for good intentions. I don't think the people cutting constitutional corners really believe that they can keep us safe; I think they know better but don't care and are just opportunistically using terrorism as a pretext to increase their power.

  • Only Man||

    My father always told me that a parent can always make things worse, they can't always make things better. I've found this to be true well outside the realm of parenting. The government would have us believe that they're our benevolent parent and no where else could my father's principle be more stark.

    People just need to accept that there isn't much that can be done to prevent these shootings. Concealed carry probably is the best physical defense but that can only come into play after the situation has begun, and 2 shooters with AR-15s and bombs would be a pretty tall order for an Ruger LC9s.

    I think the best defense overall is the psychological one, as terrorism's only real threat is the psychological one. People just need to soldier on, spirits intact. Terrorists hate our freedom and their greatest weapon , indeed their only one, in taking it from us is ourselves (or more poignantly, the government). If we start to toss our freedoms out the window in vain attempts to prevent terrorists from trying to destroy our freedoms, they will need to do very little. Taking rights, making registries, etc... are not the actions of a free nation but a terrorized one.

    Basically, keep calm, carry on. Double meanings on the "carry" on part.

  • sgreffenius||

    Good article, but the FBI, not the NSA, is the agency designated for domestic investigation. See http://www.twitlonger.com/show....._post=true for commentary.

  • Unicorn Abattoir||

    And hasn't the NSA always been a collector of electronic/signal intelligence? I don't recall them having any "loafers on the ground" capability.

  • Hank Phillips||

    This may be a Freudian slip. The NSA can certainly destabilize foreign governments and economies by tapping phones and weblinks of the wealthy and connected, then leaking that information to local foreign enforcers of US-made asset-forfeiture laws and treaties. Think for a minute how well an army of brokers could make out on futures and derivatives markets with foreknowledge of such an operation.

  • Dai wie||

    Well, as for me, if I'm there, it's no longer a "gun free" zone, regardless of any signage. If I don't see metal detector, I still carry. Fuck 'em.

  • Only Man||

    Well then you are the reason Gun-Free Zones don't work. If you carry a gun, it's only a matter of time before you start firing into people around you. Motive not required. Because in Progderpistan, people who carry guns are basically Gollum, the gun being the pressssious.

  • See Double You||

    But if it saves us from just one terrorist...

  • Ron||

    I agree with most of what you say Judge however having lots of ammo and guns, four guns is not a lot, and no longer attending your place of religion or receiving lots of packages via UPS or having a loan in any amount is not a reason for anybody to be assumed to be up to no good. Otherwise if we use that as a basis for spying on people then the feds are not spying on enough of us of any race or religion or whatever proclivity people may be.

  • Tionico||

    quote: In the no-gun zone in San Bernardino where the killings occurred, even off-duty or retired law enforcement personnel, trained and continually qualified in the use of firearms, and private people lawfully authorized to carry handguns are required to check their guns at the door." at least in my state (Washington) state law mandates that every such place where guns are prohibited and must be checked at the door also provide something akin to airport security measures, where every individual crossing the threshold dlineating the gun free zone is indisivually searched for such things as weapons. In other words, "gun free zones" are almost certainly GUN FREE ZONES. Short of that standard, (which includes the posting of standardised signage, per statute) the zone is not enforceable as "gun free". Even paretns/guardians of school children who have the requsite Mother May I Card are allowed to carry their weapons INSIDE the school buildings when dealing with matters related to their child... imagine a parent in, say,. Californoa or New York, sitting across from her childn's teacher in her office during a parent teacher conference... with her Smith and Wesson M&P 40 quietly tucked into her waistband.......... legal here.

  • Tionico||

    Overall a solid article that needs to be read, but won't, by the vast majority of Americans.

    One small quibble, though...... you mention the "stockpiling huge amounts of military-style weaponry and ammunition".. this is fear mongering hype speech. Two standard civilian Calornia legal AT platform rifles, and two standard garden variety handguns, and a couple thousand rounds for each different platform does NOT rise to the level of your claim. Four spam cans for each gun is not a "huge stockpile", I know dozens of folks who have at least that and don't think twice about it. Nor are they wierdos preparing to pull a shootemup anywhere. Except perhap at their local neighbourhood gravel pit, now closed due to stuipd county and state "environmental concerns".

  • Tionico||

    I've read the Constitution a few times, and I cannot recall anywhere FedGov are assigned the responsibility to "keep us safe" with the exception that FedGov are tasked to "repel foreign invasion" and, when in dire need, can call out militry to quell "riot and civil disturbance". Perhaps they failed in the "vetting" of this "Pakistani" woman with a phoney name and a residence address "back home" that does not exist.

    But FedGov ARE straitly charged with the DUTY to safeguard and assur our rights... ALL of them, which, as the Kidge so well points out, include both our right to NOT be spied upon without due process, AND or uninfringible right to own and use suiteable arms to assure "the security of a free state". Please not well.. that right is NOT that of military, or government.. it is the right of the whole of the people (the proper definition of the term "militia")

    SO, FedGov are busy about spending massive amounts of our tax dollars doing what it is forbidden, and utterly failing to DO that with which they are clearly charged.

  • Artimus||

    Better idea, gun nutjobs: make guns harder to get.
    Fkn weirdos and your gun fetish.

  • Cloudbuster||

    I know you're just a troll, but perhaps you could explain why it's a "better idea." I will enjoy the ensuing flood of factual data disproving your theory.

  • Hank Phillips||

    See? Head injury, physical or psychosomatic.

  • Steve Bumgardner||

    Freud said a fear and loathing of weapons is an indication of repressed sexuality maturity. Turns out that the father of psychoanalysis thought hoplophobes such as yourself and poor Hank of the tragic head injury are the ones with issues.

    California has the most repressive gun laws short of Chicago. The guns were all purchased legally in California. Background checks, waiting periods, magazine limits, and all. Neither terrorist was on the horribly flawed no fly list. So, in short, nothing Obama called for as he danced in the blood of the victims worked.

    Then there's Chicago that doesn't even have a gun shop, and hasn't yet issued a carry permit, in violation of court orders. Not quite the murder capitol, but close. If we narrow the population count down to just the area where the murders actually take place the number blows the top off of the chart. Almost all gangbanger on gangbanger, with guns illegally obtained on the streets of Chicago. So much for the magic of gun control in a city with what constitutes a total ban.

    Don't let the abject failure of your ideas slow you down. You be sure to wait for the (armed) police to protect you. We saw how well that worked. Again.

  • Artimus||

    Better idea, gun nutjobs: make guns harder to get.
    Fkn weirdos and your gun fetish.

  • ernestm||

    In 2006, I was seeking judicial accountability for the American use of depleted uranium (DU) during the war in Iraq. The DoD threatened me with life imprisonment without trial and seizure of all assets, but dropped it because I am ‘too poor to be a threat’ on condition I not publicly campaign further.

    Nonetheless, I object that I am on the no-fly list and can still buy weapons. After continuing threats to my liberty caused me to lose my job and marriage, I eventually reached the conclusion that unity in the war on terror is necessary. Now, with republicans refusing to ban weapon sales to those already listed as terrorists, I can't even find the national unity which President Bush, in his speech 'if you are not for us you are against us,' convicted me to suffer this last eight years.

    But this list shouldn't be secret, there should be due process, and transparency. Gun advocates claim the system vets them already, but Connecticut Gov. Malloy revealed 91% of attempts by those on terror watchlists to buy guns and explosives succeeded. By now, the issue should be whether the FBI approves sales to terrorists on purpose, or if it hasn’t already, how long before it does.

    Some have agreed that I shouldn’t be able to buy a weapon, but most have ridiculed me for challenging the 2nd amendment. Not one person has publicly considered my 1st amendment rights worth considering. Is supporting the right to kill *really* safer than supporting the right to free speech?

  • Hank Phillips||

    See? Antinuclear whack job blaming others for his own altruist and collectivist insanity. The tool has never noticed the word "free" written in both the first and second Amendments. That's a word you do not find in the 16th and 18th amendments, looters are pleased to keep at gunpoint.

  • pronomian||

    The simple answer is they must not have heard the rebuke of those at the climate change conference. Either that, or those at the party openly denied climate change, that is why they side tracked to the party.

  • Jack Strawb||

    "No-gun zones like the one in effect where the San Bernardino shooting took place are not only unconstitutional but also an invitation to disaster."

    So Reason must be numbered among those who don't understand the militia part of 2A? Swell.

  • Odysseus||

    10 U.S. Code § 311 - Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    https://www.law.cornell.edu/uscode/text/10/311

  • AudentesFortunaIuvat||

    The most disappointing and frustrating part of this whole mess, is the fact that a majority of people in this country suffer from serious condition of insertacraniarectalities, liberals Left wing nut jobs and democrats and Neo-conservatives, so republicans suffer from it to. It happens over many years of being force feed with propaganda through public media and the Governments propaganda machine we call Hollywood.

  • AudentesFortunaIuvat||

    These terrorist attacks are bullshit, don't get me wrong I believe terrorist will attack us one day soon and with the help of our government. This what happens when we allow our government to have way to much power, and now it has grown out of control, and they have @#$% over. I read the PNAC report prior to the attacks on 9-11, shocked over the shit as everyone else it took time for the dust to settle emotions. Then there it was, you this was a well planned out plot in order to get us to go to war in Iraq cause more problems in the middle east and steel Iraqi oil, for God sake none of you are that f'n stupid to believe they are not taking the oil. During the first war in Iraq "Desert Storm" Dick Cheney seen opportunity, old Bush was out the door, in 1995 Cheney paid the CEO Halliburton Ind Inc. 8.5 million dollars to test how private contracted military personal could work with our government troops, 1st clue, next clue in 1998 the PNAC report comes out Rumsfeld, Bush's, and others who all ended up being on Bush's administration were on the panel the report talking about the transformation of Americas Defenses, Space Marines and other wild shit.

  • AudentesFortunaIuvat||

    Then in part of the report it states that it would take longtime for this transformation unless some catastrophic event were to take place in America like another Pearl Harbor. How much more proof do you need to realize who is behind all of this. two years later Bush steals the Presidency, with a little help from his brother and a corrupt supreme court justice. Hey these guys had the money. Where do you think all the money they stole from the people during the Housing scandal and financial crisis went. Seriously all part of their agenda-taking our gun rights through false flag operations to put fear into the people even though disarming the people makes know sense, but you got remember these guys have no sense

  • AudentesFortunaIuvat||

    Then in part of the report it states that it would take longtime for this transformation unless some catastrophic event were to take place in America like another Pearl Harbor. How much more proof do you need to realize who is behind all of this. two years later Bush steals the Presidency, with a little help from his brother and a corrupt supreme court justice. Hey these guys had the money. Where do you think all the money they stole from the people during the Housing scandal and financial crisis went. Seriously all part of their agenda-taking our gun rights through false flag operations to put fear into the people even though disarming the people makes know sense, but you got remember these guys have no sense

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