The return of the Law of Suspects

The French Revolution began auspiciously with the promise of “liberty, equality and fraternity.”  From this lyrical and idealistic rhetoric, France quickly descended into despotism and terror.  On September 17, 1793, the Reign of Terror began with the invocation of the infamous Law of Suspects.  Weary of the burden of establishing proof of guilt, the revolutionary government decreed that anyone they deemed suspicious was subject to arbitrary arrest, imprisonment, and execution.  Tens of thousands of persons were subsequently murdered.

The Law of Suspects has returned.  It has returned today, here, in the United States of America.  President Obama and other political leaders have called for gun purchases to be denied to anyone suspected of being a terrorist – an enemy of the state.  Despite repeated assurances that he will preserve and protect the Second Amendment, even Donald Trump has now signaled his apparent willingness to consider this measure.

Why, proponents ask, should terrorists be allowed to buy guns?  They shouldn’t.  But there is a chasm between a terrorist and a person merely suspected of being a potential terrorist.  The terrorist watch list, or “no fly” list, is established in secret on the basis of criteria that are both vague and opaque.  A person subjected to the consequences of being placed on this list is stripped of their rights without due process of law.  The government does not have to appear before a judge and present evidence, nor can there be any defense.  To be suspected is to be guilty.

Many liberals do not believe that the Second Amendment guarantees an individual right to arms.  Just as conservatives may believe there is no right to abortion or gay marriage in the Constitution, so people on the opposite political wing have maintained that District of Columbia v. Heller (2008) was wrongly decided.  Everyone has the right to work for change.  However, it has been accepted since Marbury v. Madison (1803) that the executive and legislative branches are bound by decisions of the Supreme Court.  If gun ownership is a right protected by the Second Amendment, it is beyond cavil that denying a person the right to purchase any and all weapons without due process of law is a violation of the Constitution.

I will be plain-spoken.  What is being contemplated here is nothing less than absolute tyranny.  The exclusion of the judicial system from an establishment of guilt coupled with the imposition of punishment represents what James Madison called "the accumulation of all powers, legislative, executive, and judiciary, in the same hands."  This, Madison concluded, "may justly be pronounced the very definition of tyranny."

We are on a dangerous path.  The first step was to deny people the right to travel.  Now strident voices are calling for the negation of another right.  If a right expressly guaranteed by the Bill of Rights can be flouted on the basis of simple suspicion, then surely other rights can be ignored and abridged in this panicked flight to imaginary security.  If Second Amendment rights can be taken away without due process of law, why should the government respect rights guaranteed by the First, Fourth, and Fifth Amendments?  What’s next?  Will the same administration that freely used the IRS against its political enemies restrain itself from placing members of the opposition on this secret list of suspects?  Indeed, is there anything that can stop the executive branch from placing everyone on this list?

Following the attack on Pearl Harbor, the loyalties of American citizens of Japanese descent were questioned.  The U.S. government responded by rounding them up and holding them in internment camps until the end of WWII.  Separated by a gap of decades, we sit today aghast and wonder how people living at that time could have been so bigoted and shortsighted as to deny basic rights on the basis of speculative fear.  Yet we now contemplate a similar action, oblivious to our own shortcomings.  Let's get it right this time.

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