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Judge Andrew Napolitano: San Francisco violates NRA’s freedom of speech under Constitution

Westlake Legal Group 694940094001_6085349602001_6085344658001-vs Judge Andrew Napolitano: San Francisco violates NRA’s freedom of speech under Constitution fox-news/us/personal-freedoms/second-amendment fox-news/us/personal-freedoms/bill-of-rights fox-news/travel/vacation-destinations/san-francisco fox-news/politics/elections/first-amendment fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 31db64d0-e435-54fb-aa39-e313b084755d

In 1791, when Rep. James Madison was drafting the first 10 amendments to the Constitution — which would become known as the Bill of Rights – he insisted that the most prominent amendment among them restrain the government from interfering with the freedom of speech.

After various versions of the First Amendment had been drafted and debated, the committee that he chaired settled on the iconic language: “Congress shall make no law … abridging the freedom of speech.”

Madison insisted upon referring to speech as the freedom of speech, not for linguistic or stylistic reasons, but to reflect its pre-political existence. Stated differently, according to Madison – who drafted the Constitution as well as the Bill of Rights – because the freedom of speech preexisted the government, it does not have its origins in government. The use of the article “the” reflects that preexistence.

NRA SUES SAN FRANCISCO OVER ‘DOMESTIC TERROR ORGANIZATION’ DECLARATION

The First Amendment also reflects the framers’ collective belief that the freedom of speech is a natural right. It has its origins in our human nature. We all yearn to speak free from restraint, and we all understand that we can use our speech to express any idea we want to express without fear or hesitation. Those yearnings and understandings are universal – hence, natural.

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The framers wrote the First Amendment to codify negative rights. That is, the First Amendment recognizes the existence of the freedom of speech for every person, and it negates the ability and the power of Congress – after the Civil War amendments, of all governments – to infringe upon it. The First Amendment does not command Congress to grant the freedom of speech (it is not Congress’ to grant); rather, it commands that Congress shall not interfere with it.

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Nearly all of the rights guaranteed in the Bill of Rights are negative rights. Their essence is not a grant of liberty. Their essence is a restraint on the government from interfering with preexisting liberty.

I offer this brief understanding of the freedom of speech in our constitutional form of government as an introduction to a discussion of the dangers of government exercising free speech. We know from the plain language in and the history of the First Amendment that all persons have the freedom of speech. But what about the government? Does government have the freedom of speech?

That is not an academic question. The short answer to it is: Under the theory of the Declaration of Independence – that our rights come to us from the Creator and are inalienable – and consistent with Madison’s understanding, the government has no freedom of speech.

Government only can exercise the powers we have given it. Nowhere in the Constitution did the states give such powers to the feds, and nowhere did the people give such powers to the states. We don’t elect government to identify ideas it loves or hates. We elect it to protect our freedoms.

Stated differently, who cares what the government thinks?

In San Francisco, one needs to care. The city government there has condemned the National Rifle Association, labeled it a domestic terrorist organization and prohibited city agencies from interacting with it or with those with whom it interacts, because of the NRA’s robust defense of the Second Amendment. Can any government in America constitutionally do that? In a word: No.

Surely, the folks who work in government have the same free speech rights as do the rest of us, and they are free to exercise them. However, they cannot commandeer the government – local, state or federal – and use it as an instrument to advance their own personal free speech. Why not? Because when the government speaks, it chills the rights of others to speak who disagree with it, and that chilling constitutes the very infringement that the First Amendment was written to prohibit.

Chilling occurs when the government makes it easier for some to speak freely or more difficult for others to do so. Government does that when it expresses favoritism or hatred in the marketplace of ideas.

Whatever one thinks of the NRA, the government has no business condemning it. Can it condemn McDonald’s as a health menace for selling fatty foods? Can it condemn pro-life groups as domestic terrorists for publicly attempting to dissuade young women from having abortions? Can it condemn young socialists for demanding confiscation and redistribution of property? Can it condemn the free press as a public enemy when the press criticizes it?

The answer to all these hypotheticals (the last is not so hypothetical today) is: No. The First Amendment was written to keep the government out of the business of influencing the free market of ideas.

The whole purpose of the First Amendment is to encourage and foment open, wide, robust, unbridled speech about the government. Speech without fear or favor from the government. Speech without government interference. Speech without government challenge or reward.

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In the most liberal city in America – where free speech was once sacrosanct – it is now subject to official government disapproval. That is, until the courts do their job of protecting the free speech of an unpopular minority so that individuals can decide for themselves what to hear and believe, free from government interference.

In America, thanks to the First Amendment, no one should hesitate to express any opinion publicly for fear of incurring the wrath of the government. And no government can punish or isolate any person or group because of their exercise of the freedom of speech. Any government officials not faithful to those first principles have violated their oaths to uphold the Constitution and are unworthy of holding public office.

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6085349602001_6085344658001-vs Judge Andrew Napolitano: San Francisco violates NRA’s freedom of speech under Constitution fox-news/us/personal-freedoms/second-amendment fox-news/us/personal-freedoms/bill-of-rights fox-news/travel/vacation-destinations/san-francisco fox-news/politics/elections/first-amendment fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 31db64d0-e435-54fb-aa39-e313b084755d   Westlake Legal Group 694940094001_6085349602001_6085344658001-vs Judge Andrew Napolitano: San Francisco violates NRA’s freedom of speech under Constitution fox-news/us/personal-freedoms/second-amendment fox-news/us/personal-freedoms/bill-of-rights fox-news/travel/vacation-destinations/san-francisco fox-news/politics/elections/first-amendment fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 31db64d0-e435-54fb-aa39-e313b084755d

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Judge Andrew Napolitano: Trump violates Constitution – Spends unappropriated funds, raises taxes on own

Westlake Legal Group 694940094001_6083445695001_6083433910001-vs Judge Andrew Napolitano: Trump violates Constitution – Spends unappropriated funds, raises taxes on own fox-news/us/constitution fox-news/politics/executive/white-house fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc db08b8b9-e55a-5921-b992-3bffde6981a2 Creators Syndicate article Andrew Napolitano

Does the president of the United States have too much power?

That question has been asked lately with respect to President Trump’s planned use of federal funds to construct 175 miles of sporadic barriers along portions of the nearly 2,000-mile common border between the U.S. and Mexico.

After Congress expressly declined to give him that money, Trump signed into law – rather than vetoed – the legislation that denied him the funds he sought and then spent the money anyway.

The question regarding presidential power has also been asked with respect to Trump’s imposition of sales taxes – Trump calls them tariffs — on nearly all goods imported into the United States from China. These are taxes that only Congress can constitutionally authorize.

And the question of presidential power has been asked in connection with the presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children – in defiance of a court order.

PELOSI CLAIMS CONGRESS IS A ‘SUPERIOR BRANCH’ OF GOVERNMENT

This question of presidential power is not an academic one. Nor is it a question unique to the Trump presidency, as it has risen numerous times before Trump entered office. But the audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.

More from Opinion

Here is the backstory.

The Constitution was written in the aftermath of the American Revolution, a war fought against a kingdom, most of whose domestic subjects articulated that the king had been chosen by God to rule over them.

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The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Why is that?

For starters, Madison feared the accumulation of too much power in any one branch of the government. With the exception of the uniqueness and violence of the Civil War, for 130 years, the branches remained within their confines. For that matter, the federal government did so as well.

Congresses and presidents accepted the Madisonian view that the federal government could only do what the Constitution affirmatively authorized it to do, and all remaining governmental tasks would be addressed by the states. This, too, was part of Madison’s genius in order to impede the concentration of too much power in the hands of too few.

All that changed when a former professor of constitutional law — who was not a lawyer — entered the White House. Woodrow Wilson believed and behaved as though Congress could legislate on any problem for which there was a national political will, except that which was expressly prohibited by the Constitution.

The Wilsonian view of government and the Madisonian view of government are polar opposites.

At the same time that Wilson was turning the Constitution on its head, he was also signing legislation that created the agencies of the administrative state. These agencies, he argued, should be filled with experts in their fields — the Food and Drug Administration, the Federal Trade Commission, to name a few — because experts would bring better government.

The agencies were authorized to write regulations that have the power of law, to enforce those regulations and to interpret them. This slippage of constitutional authority to creatures alien to the Constitution — which branch of government are they in? — masked a parallel slippage of power from Congress to the presidency.

Just as Wilson persuaded Congress that the feds needed experts to run parts of the government, he and his successors persuaded Congress that the presidency should be the repository of emergency powers.

The Constitution does not authorize any emergency powers; nevertheless, the War Powers Resolution lets the president fight any war for 90 days without congressional authorization, even though the Constitution makes clear that only Congress can declare war. Other national emergency statutes give presidents short-term near-dictatorial powers — like imposing taxes by calling them tariffs — without defining what is an emergency.

Scalia railed against all this — and the Supreme Court often struck down power transfers from Congress to the president. It did so not to preserve the institutional integrity of Congress but to uphold the principle of the separation of powers that Madison crafted as a bulwark against tyranny. The constitutional allocation of power among the branches is not for them to alter.

Its equilibrium was intended to maintain tension and even jealousy among the branches — and thereby undergird personal liberty. Madison’s articulated fear was “a gradual concentration of the several powers in the same” branch. Scalia called this gradual concentration of power in the presidency a wolf in sheep’s clothing that became a bare naked wolf.

After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today — a president who spends unappropriated funds, raises taxes, defies courts and changes immigration laws on his own. I have written before that the Republicans who rejoice in this will weep over it when a Democrat is in the White House. No president should have unconstitutional powers.

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I have also written that the guarantees of the Constitution — separation of powers foremost among them — are only effective when the folks in whose hands we repose the Constitution for safekeeping are faithful to their oaths to uphold it.

When they are, our freedoms flourish. When they aren’t — power abhors a vacuum — the temptation of tyranny arises.

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6083445695001_6083433910001-vs Judge Andrew Napolitano: Trump violates Constitution – Spends unappropriated funds, raises taxes on own fox-news/us/constitution fox-news/politics/executive/white-house fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc db08b8b9-e55a-5921-b992-3bffde6981a2 Creators Syndicate article Andrew Napolitano   Westlake Legal Group 694940094001_6083445695001_6083433910001-vs Judge Andrew Napolitano: Trump violates Constitution – Spends unappropriated funds, raises taxes on own fox-news/us/constitution fox-news/politics/executive/white-house fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc db08b8b9-e55a-5921-b992-3bffde6981a2 Creators Syndicate article Andrew Napolitano

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Judge Andrew Napolitano: Trump claims that China will pay his tariffs are nonsense – Americans will pay

Westlake Legal Group 854081161001_6078015448001_6078016776001-vs Judge Andrew Napolitano: Trump claims that China will pay his tariffs are nonsense – Americans will pay fox-news/world/world-regions/china fox-news/world/trade fox-news/world fox-news/us/economy fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 34eafcc6-df4c-53b4-9aef-6f3f4a6a43c3

Late last week, President Trump issued a tweet in which he purported to order American businesses to cease doing work with their employees and contract partners in China.

Trump claimed he was exercising presidential powers pursuant to what he contended was the national emergency surrounding the trading relationship between the United States and China.

Since he did not declare a national emergency, he did not notify Congress and give it the opportunity to ratify or reject his executive orders. In fact, he didn’t even sign any executive orders on this.

GEN. KEANE: CHINA ‘CLEARLY OUR NO. 1 THREAT OUT THERE’

He merely ordered American businesses in a tweet to cease all commercial activities with anyone in China. It appears that no American company took him seriously and none complied. Can he legally do this?

Here is the backstory.

More from Opinion

Since his election as president, Trump has been fixated on the balance of trade between the U.S. and China. The balance of trade is the difference in total value annually between exports and imports.

Thus, since American businesses and consumers purchase more goods and services from Chinese businesses than American businesses sell to the Chinese, the U.S. has a deficit balance of trade with China and China has a surplus balance of trade with the U.S.

Stated differently, more goods made or assembled in China are attractive to American consumers and investors than goods produced here are attractive to Chinese investors and consumers. As well, investors from China are quite willing to finance goods made and assembled there to keep their cost low and their attractiveness to American consumers high.

All of this has come about by the free choices of American investors and consumers. Is this trade imbalance detrimental to the American economy? In a word: NoTariffs are paid by the end-user – in this case, American consumers and investors whenever we buy a product that originated wholly or in part in China.

But Trump has been willing to engage in the type of central economic planning that he once condemned by making it more costly for Chinese businesses to sell goods to their American counterparts and American consumers. And he has done so by imposing tariffs upon American purchasers.

A tariff is a sales tax that, because it has not been enacted by Congress, as the Constitution requires of all federal taxes, is unconstitutional.

Trump has argued that tariffs on Chinese goods sold in America have forced the Chinese government to pay the equivalent of hundreds of billions of dollars to the U.S. Treasury.

This is nonsense. Tariffs are paid by the end-user – in this case, American consumers and investors whenever we buy a product that originated wholly or in part in China.

And, of course, China has retaliated against American businesses by imposing its own tariffs on American products, most notably agricultural goods produced by Midwestern farmers. Many of those farmers have lost their Chinese buyers for certain 2019 growing seasons.

Trump claims that what he wants are more favorable trading terms between American and Chinese businesses, and his tariffs and other “orders” are simply a means of getting there.

The president does have a real argument that Chinese domestic subsidies and currency manipulation have put Chinese producers at an artificially unfair advantage over their American competitors.

So what? Why shouldn’t American consumers be able to take advantage of that? His tariffs are a remedy worse than the disease; the little guy gets hurt the most, often without recourse.

Now, back to Trump’s order for American businesses to cease doing business in China. The president claims the authority to issue such an order comes from emergency powers granted by law to President Jimmy Carter in 1977, which he used to address the truly dangerous Iran hostage crisis by using economic rather than military tools.

Carter wanted to prohibit American businesses from selling certain goods to businesses in Iran to coerce the government into releasing the American hostages.

But that law – the International Emergency Economic Powers Act – requires the existence of a true emergency in the U.S. caused by a foreign power. The courts have defined “emergency” as the sudden, imminent onset of harm to the lives or property of Americans that cannot be addressed by the exercise of ordinary government means.

That is hardly the case here. Here, we have a sophomoric boasting contest between Trump and President Xi Jinping as to which country has a stronger economy, and they both think they can win that contest by using government to interfere with otherwise free economic choices.

Here, we have a sophomoric boasting contest between Trump and President Xi Jinping as to which country has a stronger economy, and they both think they can win that contest by using government to interfere with otherwise free economic choices. 

Trump himself has demonstrated the ability to shake up domestic and foreign markets using ordinary government means. Now he claims he has the right to exercise emergency powers to address a non-emergency that he caused.

The imbalance of trade is not only a nonemergency; it is also a nonissue to anyone who understands Economics 101. But even to those who don’t, they will suffer at Trump’s hands when the products they buy – smartphones, household electronics, clothing, toys – suddenly cost 30 percent more than two years ago.

Where does this leave us?

We are witness again to a president who chooses to take the law into his own hands and who somehow thinks that central economic planning will enhance prosperity in America. He should know better.

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The lessons learned from Eastern European government central planning in the last century demonstrate that economic planning only benefits the planners.

Freedom to choose products and investments produces more prosperity than government planning.

Economic freedoms – to contract, to invest, to buy and to sell – are guaranteed by the Constitution and once were protected from interference by the government.

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But constitutional guarantees are only as reliable as is the fidelity to upholding them of those in whose hands we have entrusted the Constitution for safekeeping.

Are our constitutional guarantees safe in Trump’s hands?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 854081161001_6078015448001_6078016776001-vs Judge Andrew Napolitano: Trump claims that China will pay his tariffs are nonsense – Americans will pay fox-news/world/world-regions/china fox-news/world/trade fox-news/world fox-news/us/economy fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 34eafcc6-df4c-53b4-9aef-6f3f4a6a43c3   Westlake Legal Group 854081161001_6078015448001_6078016776001-vs Judge Andrew Napolitano: Trump claims that China will pay his tariffs are nonsense – Americans will pay fox-news/world/world-regions/china fox-news/world/trade fox-news/world fox-news/us/economy fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 34eafcc6-df4c-53b4-9aef-6f3f4a6a43c3

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional

Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano

When tragedy strikes, as it did in two mass killings this month, there is always the urge to pressure the government do something.

Governments are animated by the belief that doing something — any demonstrable overt behavior — will show that they are in control. I understand the natural fears that good folks have that an El Paso or a Dayton episode might happen again, but doing something for the sake of appearance can be dangerous to personal liberty.

When the Constitution was written, the idea of owning arms and keeping them in the home was widespread. The colonists had just defeated the armies of King George III. The colonial weapon of choice was the Kentucky long rifle, while British soldiers used their army-issued version of Brown Bessies.

TRUMP NEGOTIATING WITH SENATE DEMS ON GUNS

Each rifle had its advantages, but the Kentucky (it was actually a German design, perfected and manufactured in Pennsylvania) was able to strike a British soldier at 200 yards, a startlingly long distance at the time. The Bessies were good for only about 80 yards.

Put aside the advantages we had of the passionate defense of freedom and homeland, to say nothing of superior leadership. It doesn’t take any advanced understanding of mathematics or ballistics to appreciate why we won the Revolution.

It is a matter of historical fact that the colonists won the war largely by superior firepower.

Six years after the war was over, delegates met in Philadelphia in secret and drafted what was to become the Constitution. The document, largely written in James Madison’s hand, was then submitted to Congress and to the states, which began the process of ratification.

More from Judge Andrew Napolitano

By then, Americans had already formed two basic political parties. The Federalists wanted a muscular central government and the Anti-Federalists wanted a loose confederation of states.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

Yet the memory of a Parliament that behaved as if it could write any law, tax any event and impair any liberty, coupled with the fear that the new government here might drift toward tyranny, gave birth to the first 10 amendments to the Constitution — the Bill of Rights.

The debate over the Bill of Rights was not about rights; that debate had been resolved in 1776 when the Declaration of Independence declared our basic human rights to be inalienable. The Bill of Rights debates were about whether the federal government needed restraints imposed upon it in the Constitution itself.

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The Federalists thought the Bill of Rights was superfluous because they argued that no American government would knowingly restrict freedom. The Anti-Federalists thought constitutional restraints were vital to the preservation of personal liberty because no government can be trusted to preserve personal liberty.

Second among the personal liberties preserved in the Bill of Rights from impairment by the government was the right to self-defense. Thomas Jefferson called that the right to self-preservation.

Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso and Dayton. Both mass murders were animated by hatred and planned by madness. But because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.

Where is the constitutional authority for that? In a word: nowhere.

The government’s job is to preserve personal liberty. Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce the ability of madmen to get those weapons? When did madmen begin obeying gun laws?

These arguments against confiscation have largely resonated with Republicans. Yet — because they feel they must do something — they have fallen for the concept of limited confiscation, known by the euphemism of “red flag” laws.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.

The Republican proposal lowers the standard of proof to a preponderance of the evidence — “a more likely than not” standard. That was done because it is impossible to prove beyond a reasonable doubt that an event might happen. This is exactly why the “might happen standard” is unconstitutional and alien to our jurisprudence.

In 2008 Justice Antonin Scalia wrote for the Supreme Court that the right to keep and bear arms in the home is an individual pre-political right. Due process demands that this level of right — we are not talking about the privilege of a driving a car on a government street — can only be taken away after a jury conviction or a guilty plea to a felony.

The “might happen” standard of “red flag” laws violates this basic principle. The same Supreme Court case also reflects the Kentucky long gun lesson. The people are entitled to own and possess the same arms as the government; for the same reason as the colonists did — to fight off tyrants should they seize liberty or property.

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If the government can impair Second Amendment-protected liberties on the basis of what a person might do — as opposed to what a person actually did do — to show that it is doing something in response to a public clamor, then no liberty in America is safe.

Which liberty will the government infringe upon next?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano   Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional

Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano

When tragedy strikes, as it did in two mass killings this month, there is always the urge to pressure the government do something.

Governments are animated by the belief that doing something — any demonstrable overt behavior — will show that they are in control. I understand the natural fears that good folks have that an El Paso or a Dayton episode might happen again, but doing something for the sake of appearance can be dangerous to personal liberty.

When the Constitution was written, the idea of owning arms and keeping them in the home was widespread. The colonists had just defeated the armies of King George III. The colonial weapon of choice was the Kentucky long rifle, while British soldiers used their army-issued version of Brown Bessies.

TRUMP NEGOTIATING WITH SENATE DEMS ON GUNS

Each rifle had its advantages, but the Kentucky (it was actually a German design, perfected and manufactured in Pennsylvania) was able to strike a British soldier at 200 yards, a startlingly long distance at the time. The Bessies were good for only about 80 yards.

Put aside the advantages we had of the passionate defense of freedom and homeland, to say nothing of superior leadership. It doesn’t take any advanced understanding of mathematics or ballistics to appreciate why we won the Revolution.

It is a matter of historical fact that the colonists won the war largely by superior firepower.

Six years after the war was over, delegates met in Philadelphia in secret and drafted what was to become the Constitution. The document, largely written in James Madison’s hand, was then submitted to Congress and to the states, which began the process of ratification.

More from Judge Andrew Napolitano

By then, Americans had already formed two basic political parties. The Federalists wanted a muscular central government and the Anti-Federalists wanted a loose confederation of states.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

Yet the memory of a Parliament that behaved as if it could write any law, tax any event and impair any liberty, coupled with the fear that the new government here might drift toward tyranny, gave birth to the first 10 amendments to the Constitution — the Bill of Rights.

The debate over the Bill of Rights was not about rights; that debate had been resolved in 1776 when the Declaration of Independence declared our basic human rights to be inalienable. The Bill of Rights debates were about whether the federal government needed restraints imposed upon it in the Constitution itself.

CLICK HERE TO SIGN UP FOR OUR OPINION NEWSLETTER

The Federalists thought the Bill of Rights was superfluous because they argued that no American government would knowingly restrict freedom. The Anti-Federalists thought constitutional restraints were vital to the preservation of personal liberty because no government can be trusted to preserve personal liberty.

Second among the personal liberties preserved in the Bill of Rights from impairment by the government was the right to self-defense. Thomas Jefferson called that the right to self-preservation.

Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso and Dayton. Both mass murders were animated by hatred and planned by madness. But because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.

Where is the constitutional authority for that? In a word: nowhere.

The government’s job is to preserve personal liberty. Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce the ability of madmen to get those weapons? When did madmen begin obeying gun laws?

These arguments against confiscation have largely resonated with Republicans. Yet — because they feel they must do something — they have fallen for the concept of limited confiscation, known by the euphemism of “red flag” laws.

The concept of a “red flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed.

The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.

The Republican proposal lowers the standard of proof to a preponderance of the evidence — “a more likely than not” standard. That was done because it is impossible to prove beyond a reasonable doubt that an event might happen. This is exactly why the “might happen standard” is unconstitutional and alien to our jurisprudence.

In 2008 Justice Antonin Scalia wrote for the Supreme Court that the right to keep and bear arms in the home is an individual pre-political right. Due process demands that this level of right — we are not talking about the privilege of a driving a car on a government street — can only be taken away after a jury conviction or a guilty plea to a felony.

The “might happen” standard of “red flag” laws violates this basic principle. The same Supreme Court case also reflects the Kentucky long gun lesson. The people are entitled to own and possess the same arms as the government; for the same reason as the colonists did — to fight off tyrants should they seize liberty or property.

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If the government can impair Second Amendment-protected liberties on the basis of what a person might do — as opposed to what a person actually did do — to show that it is doing something in response to a public clamor, then no liberty in America is safe.

Which liberty will the government infringe upon next?

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Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano   Westlake Legal Group 694940094001_6072921449001_6072879108001-vs Judge Andrew Napolitano: Gun confiscation under “red flag” laws is unconstitutional fox-news/us/personal-freedoms/second-amendment fox-news/us/crime/mass-murder fox-news/opinion fox news fnc/opinion fnc ef4925dc-7525-5336-b144-b1b2cbc96f6d article Andrew Napolitano

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Judge Andrew Napolitano: Trump has unleashed a torrent of hatred

Westlake Legal Group 694940094001_6063076054001_6063084346001-vs Judge Andrew Napolitano: Trump has unleashed a torrent of hatred fox-news/politics/executive/white-house fox-news/politics fox-news/person/ilhan-omar fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 175b1490-f213-5036-80eb-b7d924e0869c

When I was an undergraduate at Princeton University during the height of the Vietnam War, surrounded by fellow students who condemned it and even some who later left our country to avoid fighting in it, the mantra used by supporters of the war was, “America, love it or leave it.” In my misguided “Bomb Hanoi” youth, I uttered this phrase, which I now detest.

The phrase itself – with its command of the government’s way or the highway – admits no dissenting opinions, suggests that all is well and proper here, and insinuates that moral norms and cultural values cannot be improved. The phrase itself is un-American.

That era also produced such hate-filled catchphrases as: “Hey, hey, LBJ; how many kids did you kill today?” Those post-JFK and pre-Watergate times were harsh and bitter, as the nation was deeply divided over a war we now all know was useless and based on deception and fraud.

JUDGE ANDREW NAPOLITANO: TRUMP’S ATTACK ON CONGRESSWOMEN WAS ‘RACIST,’ BUT HOUSE DEMS SHOULDN’T CENSURE HIM

We know from the publication of the Pentagon Papers that the incidents President Lyndon B. Johnson claimed justified the war never occurred, and the president and some of his generals regularly lied to the American public about the war.

The lies and deceptions – combined with the military draft and the deaths of 58,000 Americans – produced much hatred. The hatred was for people, rather than ideas. It was generational and ideological.

Youth hated age. Long hair hated short hair. Conservatives hated liberals. Many people hated LBJ personally. When President Gerald R. Ford ended the war – though in a colossal defeat – the end produced a great national relief because the national hatred of people was over.

Now, that hatred is back.

The problem is that presidential hatred produces division among people and destroys peaceful dialogue.

I have known President Trump personally since 1986. The private Trump I have known is funny, charming and embracing. That is not the public Trump of today. When he loudly called for four members of Congress – women of color who oppose nearly all his initiatives and who have questioned his fitness for office – to go back to the places from which they came, he unleashed a torrent of hatred.

The “Go back” trope was used by white racists toward African-Americans for 100 years, from Reconstruction to the civil rights era, suggesting repulsively that they should go “back” to Africa; never mind their American births. It was uttered by the establishment at my grandfathers and many others who came here from southern Europe as children in the early days of the last century.

“Go back” is a rejection of the nation as a melting pot; a condemnation of one of America’s founding values – E Pluribus Unum (Out of many, one). It implicates a racial or nativist superiority: We were here before you; this is our land, not yours; get out. Nativist hatred is an implication of moral or even legal superiority that has no constitutional justification in American government.

All working in government in America have taken an oath to support the Constitution. The Constitution commands equal protection of the laws by government at all levels. No one is above the laws’ obligations and no one is beneath the laws’ protections. The Constitution not only commands of government both racial neutrality and color blindness, it generally prohibits government officials from making distinctions among people on the basis of immutable characteristics.

So, when the president defies these moral and constitutional norms and tells women of color to “Go back,” he raises a terrifying specter.

The specter is hatred not for ideas he despises but for the people who embrace those ideas. The specter is also a dog whistle to groups around the country that hatred is back in fashion and is acceptable to articulate publicly.

Don’t get me wrong. Even though hate speech – speech that expresses hatred for people, as opposed to hatred for ideas – stings and hurts, it is constitutionally protected. The remedy for hate speech is not to silence the hater but to shame him. And the most effective way to do that is with more speech.

But when the hate speech comes from a shameless president, we have a problem.

The problem is that presidential hatred produces division among people and destroys peaceful dialogue. When thousands of people at a Trump rally in North Carolina recently chanted, “Send her back” referring to a congresswoman born in Somalia – and Trump tweeted that the four congresswomen (including three born in the U.S.)  should “Go back” to where they came from – the inescapable image was of a president trying to divide rather than unite.

At first, Trump seemed to welcome the chants. Then, two days later, he distanced himself from those who chanted. Then, three days after that, he praised the chanters.

When a Louisiana police officer tweeted that one of the congresswomen Trump targeted deserved a round – he was referring to a bullet – he and a supportive colleague were fired. And in New York City, hatred for cops has led to group assaults on them, along racial lines.

Hatred is so volatile and destructive that, once unleashed, it takes on a life of its own. It is cover for our deepest and darkest instincts. And it is a cousin to violence, as those Louisiana and Manhattan cops know.

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It also captivates our attention. Could that be the president’s wish – that we think about hatred of his targets rather than the testimony of former Special Counsel Robert Mueller, who spent two years investigating the president and testified before two House committees Wednesday?

This business of the hatred of people is so dangerous because to some, as Lord Byron wrote, hatred is perversely pleasing. It gives them shelter in a mob, it lets them hurl venom with anonymity, and it regenerates itself. It must be rejected loudly in all its forms – especially when it comes from the president.

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Westlake Legal Group 694940094001_6063076054001_6063084346001-vs Judge Andrew Napolitano: Trump has unleashed a torrent of hatred fox-news/politics/executive/white-house fox-news/politics fox-news/person/ilhan-omar fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 175b1490-f213-5036-80eb-b7d924e0869c   Westlake Legal Group 694940094001_6063076054001_6063084346001-vs Judge Andrew Napolitano: Trump has unleashed a torrent of hatred fox-news/politics/executive/white-house fox-news/politics fox-news/person/ilhan-omar fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 175b1490-f213-5036-80eb-b7d924e0869c

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Judge Andrew Napolitano: Trump’s attack on congresswomen was ‘racist,’ but House Dems shouldn’t censure him

Westlake Legal Group 694940094001_6060162479001_6060167766001-vs Judge Andrew Napolitano: Trump’s attack on congresswomen was ‘racist,’ but House Dems shouldn’t censure him fox-news/politics/elections/first-amendment fox-news/person/nancy-pelosi fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 25c2e3c1-e9d3-5b1f-b4be-370251a60faa

During the past week, President Trump excited two bitter public controversies by sending and publishing two highly inappropriate and offensively incendiary tweets.

The first of these was aimed at four female members of Congress — each a person of color, and, as members of Congress, each an American citizen. Yet the president said they should go back to the countries from which they came. The second tweet was aimed at Google, which the president argued should be investigated for treason.

The first of these tweets was xenophobic, racist and hateful. The second was just plain ignorant. Together they revealed a level of misguided thinking not heard from the Oval Office since President Richard Nixon’s tapes were revealed.

PELOSI RIPS TRUMP BID TO LINK DEMS TO ‘SQUAD,’ VOWS NOT TO ‘WASTE OUR TIME ON THAT’

Here is the backstory.

For months, four very liberal and highly progressive Democratic members of the House of Representatives — known in the media collectively as “the Squad” — have been taunting Trump over their vast ideological differences. The Squad has also argued that Trump is unfit for office and ought to be removed via impeachment.

As well, the Squad has taunted its leader — House Speaker Nancy Pelosi. The speaker has wisely distanced herself and the vast majority of House Democrats from the Squad, and she has not taken their bait.

The president, on the other hand, has taken their bait and attacked them personally. The Squad has views of American domestic and foreign policy seriously at odds with even the liberal base of the Democratic Party — hence Pelosi’s occasional public but gentle chastisements.

Pelosi understands that while these congresswomen have every right to advocate for whatever cause they wish, some of their advocacy, if attributed to the national Democratic Party, could enhance the chances of a Republican victory in 2020.

So when Trump attacked the individual members of the Squad based on immutable characteristics — race, gender, place of origin — he succeeded in doing what no Democratic presidential candidate has been able to do thus far. He united the Democratic Party around an issue and against himself.

Politics is not beanbag, but if the great painful lesson of American history has taught us anything, it is that there is no place in our public discourse for racial hatred. The Democrats know this. The president apparently doesn’t.

It gets worse.

We have a president who sounds more like a Mafia don than a statesman and a Congress that wants to pick and choose whose offensive words to condemn.

Now, the House Democrats want to add fuel to this fire by using the power of office to censure the president because of his tweets about the Squad. They have no business doing so. The president’s words — backed up by his incessant repetitions — are condemnable, but they are only words. As Thomas Jefferson once argued, mere words “neither pick my pocket nor break my leg.”

Congress was elected to write laws pursuant to the Constitution. It was not elected to isolate words its members hate and fear and then condemn the speaker of those words.

British parliaments did that to political opponents — domestic and colonial — and our Constitution was written by many who had been the target of parliamentary condemnations and who labored mightily in writing the Constitution and the Bill of Rights so that such events would not happen here.

It gets worse still.

Perhaps to deflect the nation’s attention from his vile intemperance about the Squad, the president tweeted earlier this week — solely on the basis of an unfounded allegation by a high-tech supporter of his — that Google has sold technology to the government of China, and so Google should be investigated by the Department of Justice for treason. Such an absurd and ignorant statement would flunk a high school social studies test.

Treason is the only crime defined in the Constitution. This, too, like the primacy of the freedom of speech, was essentially the colonists ensuring their experience with British kings’ baseless use of “treason” to justify horrific and bloody acts would not happen again

The constitutional definition states that treason shall consist only in waging war against the United States or in providing aid and comfort to its enemies. The actual phrase in the Constitution is “their enemies,” referring collectively to the states.

The courts have defined enemy — or enemies — as any country or group on which the United States has declared war. Moreover, since only an American citizen can be charged with treason — its essence is a violent rejection of citizenship — it is ridiculous and reckless to suggest that a corporation could.

Where does all this leave us?

We have a president who sounds more like a Mafia don than a statesman and a Congress that wants to pick and choose whose offensive words to condemn. Yet even a condemnation of Trump by the House alone — the Senate seems to work for him — would be legally meaningless and also just words.

Any person faithful to the Constitution should disagree with all these words — the president’s words and the censuring congressional words. But like Voltaire, a patriot will defend to the death the right to utter them.

In America, we don’t punish mere words, and there are no limits on public free speech — “free” meaning free from government interference.

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The whole purpose of the First Amendment command that “Congress shall make no law … abridging the freedom of speech” is to encourage and provoke open, wide, robust, unbridled public utterances about the government and those in it, without fear of any governmental consequences.

Our forebears fought a revolution against a king to assure posterity of that.

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Westlake Legal Group 694940094001_6060162479001_6060167766001-vs Judge Andrew Napolitano: Trump’s attack on congresswomen was ‘racist,’ but House Dems shouldn’t censure him fox-news/politics/elections/first-amendment fox-news/person/nancy-pelosi fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 25c2e3c1-e9d3-5b1f-b4be-370251a60faa   Westlake Legal Group 694940094001_6060162479001_6060167766001-vs Judge Andrew Napolitano: Trump’s attack on congresswomen was ‘racist,’ but House Dems shouldn’t censure him fox-news/politics/elections/first-amendment fox-news/person/nancy-pelosi fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 25c2e3c1-e9d3-5b1f-b4be-370251a60faa

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Judge Andrew Napolitano: Census asks too many questions – it’s just supposed to determine our population size

Westlake Legal Group 694940094001_6057595672001_6057592360001-vs Judge Andrew Napolitano: Census asks too many questions – it’s just supposed to determine our population size fox-news/politics/judiciary/supreme-court fox-news/politics/judiciary fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc bb5d5b67-29e9-5abd-b2a5-18b13a209fc3 article Andrew Napolitano

Late last month, the Supreme Court ruled on a challenge to a question that the Commerce Department announced it would add to the 2020 census. The census itself has been mandated by the Constitution to be taken every 10 years so that representation in the House of Representatives could be fairly apportioned to reflect population changes.

Over the years, the folks who prepare the census developed an appetite for peering into the personal lives of everyone living in America, and Congress – which has the same mentality as the census bureaucrats – permitted this. So, the Census Bureau began adding personal questions in the census itself.

The First, Fourth and Fifth Amendments constitutionally limit the only question that the census may ask, and the only question the recipient of the census must answer: How many persons reside in the responder’s home?

BOOKER INTRODUCES BILL TO RESTRICT USE OF CENSUS CITIZENSHIP QUESTION

Yet, that constitutional question was not good enough for the bureaucrats. In addition to asking about bedrooms and toilets and education, this year, the census folks were instructed by President Trump to ask the citizenship status of all persons. But the Supreme Court ruled that, on the justification offered by the Commerce Department, the question may not be asked.

Here is the backstory.

Though this has taken on serious political overtones, it is simply an issue about the government rejecting personal liberties – again. So, when the census folks first revealed their intention to ask the citizenship question, two challenges were filed in different federal courts, and each sought to ascertain the reason for the question.

That’s because – even though the Constitution only mandates and only permits one question: “How many persons live here?” – federal law, in defiance of the Constitution, permits ancillary questions if the answers to those questions will assist the mission of the Census Bureau or the broader federal government.

Thus, the lawsuits challenging the proposed citizenship question forced the federal government to explain how the answers received from this question would help the government to do its work.

Both federal courts enjoined the printing of census forms until the feds explained themselves. When Commerce Secretary Wilbur Ross refused to be interrogated at a deposition, a bureaucrat unfamiliar with the secretary’s and the president’s thinking came and testified. He told lawyers for the challengers and the Department of Justice that the feds needed citizenship data to enforce the Voting Rights Act.

In addition to asking about bedrooms and toilets and education, this year, the census folks were instructed by President Trump to ask the citizenship status of all persons. But the Supreme Court ruled that, on the justification offered by the Commerce Department, the question may not be asked.

All courts that examined that basis for the citizenship question — including the Supreme Court — disbelieved it. The Supreme Court characterized the stated reason as “contrived” and it directed the lower courts to keep their injunctions in place while they sought to determine the true motivations for the question.

When senior officials at the Commerce Department and the Justice Department read the Supreme Court decision and examined the relevant law, they instructed the Justice Department lawyers who were trying the cases to inform the judges in each case that the government recognized its defeat; the census would proceed without the citizenship question.

Then the president got involved and characterized what Justice Department lawyers – his Justice Department lawyers – told two federal judges as “fake news.” The Justice Department then pulled these career lawyers off the cases and sent in new teams of lawyers to try to come up with a lawful and credible reason to justify the citizenship question.

The Department of Justice is in a pickle on this because judges are always skeptical when lawyers – particularly government lawyers who needn’t worry about collecting a fee from a client – are replaced during a case with no rational explanation. It is far more likely that the career Justice Department lawyers resigned from the cases – rather than reverse or contradict themselves – than it is that the department brass removed them.

Can new Justice Department trial teams salvage the department’s cases? I don’t see how. The Commerce Department alleged that the reason for the census question was to assist in the enforcement of the Voting Rights Act. The Supreme Court declined to accept that explanation because the Voting Rights Act does not apply to three-quarters of the states and there was no request from the Justice Department – which enforces the Voting Rights Act – asking for this.

Moreover, federal courts uphold a doctrine that prohibits the government in a constitutional challenge from supplying reasons for its behavior as an afterthought – an after-the-fact rationalization. That doctrine will bar the judicial consideration of any reason that has not already been offered to support the citizenship question.

Compounding this is a statement that the president made last weekend; namely, that the citizenship question was being asked for reapportionment purposes. Hold on. That statement directly defies the consistent Justice Department arguments that reapportionment has nothing to do with this.

Does the census count only citizens, citizens and lawfully resident noncitizens, or all persons? It counts all persons. Thus, citizenship is irrelevant to its counting mission and to the government’s enforcement of the Voting Rights Act, as noncitizens cannot vote.

Can the president rectify this with an executive order? In a word: no. The judicial injunctions against asking the question would apply to and supersede an executive order.

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This mess is yet another example of personal liberty versus government power. On one side is the right to privacy in the home, expressly guaranteed by the Fourth Amendment, and the right to silence, expressly guaranteed by the Fifth Amendment and by implication in the First Amendment. On the other side is an avaricious government that wants to know all it can about persons in America – whether constitutional or not.

Could a future Commerce Department ask how many guns are kept in the house or who living there goes to Mass on Sunday or if any resident has had an abortion? How much longer will a free people permit these intrusions? How much longer will we be a free people?

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Westlake Legal Group 694940094001_6057595672001_6057592360001-vs Judge Andrew Napolitano: Census asks too many questions – it’s just supposed to determine our population size fox-news/politics/judiciary/supreme-court fox-news/politics/judiciary fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc bb5d5b67-29e9-5abd-b2a5-18b13a209fc3 article Andrew Napolitano   Westlake Legal Group 694940094001_6057595672001_6057592360001-vs Judge Andrew Napolitano: Census asks too many questions – it’s just supposed to determine our population size fox-news/politics/judiciary/supreme-court fox-news/politics/judiciary fox-news/person/donald-trump fox-news/opinion fox news fnc/opinion fnc bb5d5b67-29e9-5abd-b2a5-18b13a209fc3 article Andrew Napolitano

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Judge Andrew Napolitano: Declaration of Independence was based on these revolutionary ideas

Westlake Legal Group ContentBroker_contentid-cbeaee3f4de74ff5bc865d4693ec4a40 Judge Andrew Napolitano: Declaration of Independence was based on these revolutionary ideas fox-news/us/personal-freedoms/proud-american fox-news/us/education/patriotism fox-news/politics/regulation fox-news/opinion fox news fnc/opinion fnc bc732343-f61e-5185-8a8e-ca53b468ddcc article Andrew Napolitano

The Declaration of Independence — released on July 4, 1776 — was Thomas Jefferson’s masterpiece. Jefferson himself wrote much about it in essays and letters during the 50 years that followed.

Not the least of what he wrote offered his view that the declaration and the values that it articulated were truly radical — meaning they reflected 180-degree changes at the very core of societal attitudes in America.

The idea that farmers and merchants and lawyers could secede from a kingdom and fight and win a war against the king’s army was the end result of the multigenerational movement that was articulated in the declaration and culminated in the American Revolution.

MEDAL OF HONOR RECIPIENT ON TRUMP BEING BLASTED FOR JULY 4 CELEBRATION: HONORING VETERANS IS WORTH THE COST

The two central values of the declaration are the origins of human liberty and the legitimacy of popular government.

When Jefferson wrote that we are endowed by our Creator with certain unalienable rights, he was referring to the natural law. The natural law teaches that right and wrong can be discerned and truth discovered by the exercise of human reason, independent of any commands from the government.

The natural law also teaches that our rights come from our humanity — not from the government — and our humanity is a gift from our Creator.

Even those who question or reject the existence of the Creator can embrace natural rights; they can accept that our exercise of human reason leads us all to make similar claims. Rights are essentially claims made against others, including the government.

These claims — free speech, free association, free exercise or non-exercise of religion, self-defense, privacy, property ownership and fair treatment from the government, to name a few — are rights that we all exercise without giving a second thought to the fact that they are natural and come from within us.

In Jefferson’s day, the government needed the people’s expressed permission to tax and regulate them. Today, the people need the government’s permission to do nearly everything.

The view of the individual as the repository of natural rights was not accepted by governments in 1776. Back then, governments rejected that idea and used violence to suppress it.

For the government here in the mid-18th century, the king was divine and could do no wrong, and Parliament existed not as the people’s representatives but to help the king raise money and to give him a read on the pulse of landowners and nobility.

Jefferson and his colleagues had no difficulty breaking from this ancient regime. Unlike the French, who destroyed their monarchy, the American colonists seceded from theirs — and they did so embracing natural rights.

Regrettably, they did not recognize the natural rights of African slaves or women. We all know and profoundly lament and are still correcting the sorry history of those errors.

The idea that each human being possesses inherent natural rights by virtue of one’s humanity is not just an academic argument. It has real-life consequences, which Jefferson recognized. Those consequences are implicated when government seeks to curtail rights for what it claims is the common good or the good of the government itself.

Jefferson recognized that you can consent to the curtailment of your own rights, but you cannot consent to the curtailment of mine. To Jefferson, government can take away your rights without your consent only if you have violated someone else’s rights; it cannot do so by majority vote.

The second radical concept that underscores the Declaration of Independence is that no government is valid unless it enjoys the consent of the governed. This, too, was unheard of in 1776, because British kings did not claim consent of the governed as the basis for their legitimacy. They claimed the myth that their monarchies were an extension of God’s will.

In America, consent of the governed is married to the natural law. Under the natural law, what is yours is yours and what is mine is mine. If I attempt to take your land or car or cellphone, you can stop me, either directly or through the government to which we have both consented.

If one of us has not consented to the government’s existence, it can still enforce natural rights as the agent of the person whose rights are being violated — just as it does for bank depositors when it captures a bank robber. If we have not consented to the government and it takes our liberty or property, it has no moral legitimacy and is merely a common thief.

The last of Jefferson’s many letters was written to his enemy-turned-friend John Adams, in anticipation of the 50th anniversary of the declaration — a day on which both Jefferson and Adams would die.

In that final letter, Jefferson argued that the greatest achievement of the declaration was its arousing men to burst free from the chains imposed upon them by superstition and myth — by bringing about a recognition of their natural rights and an embrace of government by consent.

Today the Jeffersonian ideals of personal natural rights and governmental legitimacy conditioned upon individual consent of the governed have become myths.

In Jefferson’s day, voters knew all that the government did, and it knew nothing about them. Today, government operates largely in secrecy, and it captures our every communication.

In Jefferson’s day, the government needed the people’s expressed permission to tax and regulate them. Today, the people need the government’s permission to do nearly everything.

In Jefferson’s day, his colleagues fought for independence from England. Today, half the country is dependent on the government.

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Did you consent to a Congress that steals liberty and property on a whim without due process; to a president who starts wars, raises taxes and spends money in defiance of Congress; or to courts that let folks be tried twice for the same crime or punished for crimes not yet committed?

Welcome to Independence Day 2019.

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Westlake Legal Group ContentBroker_contentid-cbeaee3f4de74ff5bc865d4693ec4a40 Judge Andrew Napolitano: Declaration of Independence was based on these revolutionary ideas fox-news/us/personal-freedoms/proud-american fox-news/us/education/patriotism fox-news/politics/regulation fox-news/opinion fox news fnc/opinion fnc bc732343-f61e-5185-8a8e-ca53b468ddcc article Andrew Napolitano   Westlake Legal Group ContentBroker_contentid-cbeaee3f4de74ff5bc865d4693ec4a40 Judge Andrew Napolitano: Declaration of Independence was based on these revolutionary ideas fox-news/us/personal-freedoms/proud-american fox-news/us/education/patriotism fox-news/politics/regulation fox-news/opinion fox news fnc/opinion fnc bc732343-f61e-5185-8a8e-ca53b468ddcc article Andrew Napolitano

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Judge Andrew Napolitano: Can government punish twice for the same crime?

Westlake Legal Group 694940094001_6049215929001_6049211645001-vs Judge Andrew Napolitano: Can government punish twice for the same crime? fox-news/us/crime fox-news/politics/judiciary/supreme-court fox-news/politics fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 5627fa8c-b762-56f5-815a-81f7a3e7d11e

“…nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb…”

–Fifth Amendment to the U.S. Constitution

The government in America is out of control.

Last week, this column discussed the unconstitutional efforts of federal prosecutors in Chicago to punish an American citizen for crimes that had not yet been committed. This week, I address the wish of federal prosecutors in Alabama to charge and to punish a man for a crime for which he had already been convicted and punished.

There is no happy ending here. Earlier this week, the Supreme Court of the United States ruled that the same criminal event can trigger two prosecutions, one by the feds and one by the state; and it can also trigger two punishments.

JUDGE ANDREW NAPOLITANO: TRASHING THE CONSTITUTION AGAIN

Here is the backstory.

Terance Gamble, who had once been convicted of robbery in Alabama, was stopped by a Mobile, Alabama, policeman who claimed Gamble was driving a car with a damaged headlight. He then claimed Gamble gave him consent to search his car. Neither of these police claims is credible, but that is not the point of this argument. When the search revealed a loaded handgun, Gamble was arrested and his constitutional odyssey began.

Because Gamble was a convicted felon at the time his vehicle was stopped and the handgun was discovered, his possession of the handgun violated Alabama law and also violated federal law. Both laws prohibit convicted felons from owning or possessing firearms for life.

After he pleaded guilty in Alabama state court to being a felon in possession of a handgun and began to serve his jail term, federal prosecutors sought and obtained an indictment for Gamble’s violation of the federal statute prohibiting felons from possessing firearms. Gamble then pleaded guilty in federal court, reserving his right to challenge his federal conviction on the theory that it constituted double jeopardy.

The Fifth Amendment to the U.S. Constitution provides that no person shall “for the same offense to be twice put in jeopardy of life or limb.” This is commonly referred to as the double jeopardy clause. Like the other initial eight amendments in the Bill of Rights, the Fifth Amendment was written largely in response to government excesses and abuses during the colonial period. In the case of this clause, it was expressly written to prevent repeated attempts to convict.

Notwithstanding the plain language in the amendment, the trial court dismissed Gamble’s challenge and a federal appellate court upheld that dismissal. Earlier this week, the Supreme Court agreed with the lower courts and permitted the second guilty plea to stand, and the second incarceration to be served.

Isn’t double punishment profoundly un-American and clearly unconstitutional? In a word: Yes.

It is not only un-American and contrary to the Fifth Amendment; it violates the natural right to proportional punishment. That right guarantees that a defendant shall not be punished more severely than others similarly situated and not more severely than the defendant’s behavior warranted. I am not arguing here that all convicted felons should have access to firearms, though many — like those convicted of nonviolent crimes — should. Yet, Gamble’s mere possession of this handgun harmed no one, and it hardly merits a double dose of punishment.

No crime merits double punishment. We know that because it was a policy judgment made by James Madison & Co. when Congress passed and the states ratified the Bill of Rights. The framers were personally familiar with the British officials’ practice of repeatedly trying defendants — usually folks colonial officials hated or feared — for the same crime, until they got the verdict and the punishment that they wanted.

We fought a revolution over abuses like this, and we wrote a Constitution to prevent those abuses from happening here.

And here we are in 2019 and those abuses are still with us. If the feds fail to convict you, the state has a shot. If the state fails to convict you, the feds have a shot. If both governments want to charge you and try you and punish you for the same offense — the same criminal event and the same crime — they can constitutionally do so.

Why should you care about this? You should care because repeated attempts to convict are hallmarks of tyrants. Yet the Supreme Court, in an obeisance to textualism — the literal adherence to the words of a document no matter the outcome of that adherence — ruled that the Fifth Amendment only prohibits the re-prosecution for the same offense, not for the same crime; and Gamble’s behavior was actually two crimes, one state and one federal, not two offenses.

Come again? Isn’t it obvious from history that all repeated attempts to convict for offenses or crimes are barred by the values that underlie the words the court has just abused?

This business of double prosecutions for the same event or offense or crime and double punishments is bad law. As Justice Neil Gorsuch wrote in dissent, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”

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Compare that clear liberty-loving language with the Court’s tortured idea of the textual differences between offenses and crimes, and one can see that judicial intellectual chicanery can always find a means to an end. The Supreme Court should be in the business of protecting our rights, not upending them.

The benefit of any historical doubt or textual ambiguity should always favor liberty over power, because liberty is inalienable and integral to our humanity and essential for our happiness. Power is whatever the government wants it to be.

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Westlake Legal Group 694940094001_6049215929001_6049211645001-vs Judge Andrew Napolitano: Can government punish twice for the same crime? fox-news/us/crime fox-news/politics/judiciary/supreme-court fox-news/politics fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 5627fa8c-b762-56f5-815a-81f7a3e7d11e   Westlake Legal Group 694940094001_6049215929001_6049211645001-vs Judge Andrew Napolitano: Can government punish twice for the same crime? fox-news/us/crime fox-news/politics/judiciary/supreme-court fox-news/politics fox-news/opinion fox news fnc/opinion fnc article Andrew Napolitano 5627fa8c-b762-56f5-815a-81f7a3e7d11e

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