Keep Guns Away From Terrorists

Some gun advocates, in the name of protecting a sacred constitutional right to bear arms, oppose restrictions on the ability of  persons on a terrorist watch list or no-fly list to purchase weaponry. Their objection, they say, is not to keeping guns out of the hands of terrorists, but to the government's unfettered discretion in compiling such lists without a corresponding right of persons so listed to effectively challenge their inclusion.
With this as their basic premise, the gun advocates find it easy to resist proposed laws that prohibit the sale of weapons to persons on the suspect lists even when such laws include due process remedies for those who dispute the propriety of their listing.
So, for example, Professor Jeffrey Kahn, in his op-ed piece in the New York Times (" A 'No Buy' List For Guns Is a Bad Idea", July 1, 2016) rejects the claim that search and wiretap warrants procedures would adequately protect the rights of persons unjustly included on a watch list. Even if such procedures would require a court to find reasonable cause, as is now required before a search or seizure may be made, Kahn argues that a suspected terrorist would not enjoy equivalent protection. That is because persons whose property has been seized with judicial approval would be entitled to a follow up trial at which their guilt must be proven beyond a reasonable doubt whereas suspected terrorists, even if accorded such a procedure, would be unable to prove that they are unjustly under suspicion.
Professor Kahn's arguments are fundamentally flawed in several respects. First, an approved search which results in the seizure of contraband (eg; illegal guns or drugs) has performed an important function even if the accused is not subsequently found guilty at trial. The dangerous contraband has been taken out of circulation and great harm has likely been prevented, just as a warrant that prevents the immediate sale of an assault rifle to a suspected terrorist and defer such sale until the suspect's status can be resolved at a hearing, is likely to provide an important measure of protection to the public.
A law which gives a listed person the right to challenge his suspect status at a hearing or trial would not be a meaningless remedy, as Kahn suggests, because the burden of proving  a reasonable basis for the listing would presumably be placed upon the government, not the challenger. Thus, someone put on a terrorist watch list would be able to test the reasonableness of such suspicion and gain adequate relief from the court if the government fails to make its case.
Finally, it simply seems offensive to commonsense to equate the constitutional right to be free of unreasonable searches and seizures by the government with the recently court-expanded right to bear arms. Even the slim majority of the Supreme Court which found that right to be granted to individuals, recognized that it was subject to regulation.

Supreme Court Deadlock on Immigration Reform

TO THE EDITOR:
 By voting to affirm the 2-1 decision of the lower appellate court, the four conservative members of the Supreme Court have created a deadlock which has the effect of blocking the President's attempt to assure stability to millions of immigrants who are the parents of American born or resident children and effectively prevents them from getting work permits and drivers' licenses.
To reach that impasse, the conservatives accepted the outlandish notion that the State of Texas had standing because it would incur some costs associated with the issuance of drivers' licenses, a cost it has visited upon itself, and, further, bought the State's tenuous argument that the President's unquestioned right to establish priorities for deportation is, somehow, lost when he exercises that right on a broad scale.
This result condemns millions to life in the shadows, insures family disruption and highlights the need to fill the vacant Supreme Court seat, hopefully with someone more inclined to respect human rights and executive privilege.

Supreme Court Choice and Sen. Hatch

Senator Orrin Hatch's defense of Republican intransigence, about acting upon the President's Supreme Court nomination, is rife with misstatements, misleading pronouncements and illogical argument.

The Senate has never before refused to, or ever declared  in advance of a nomination that it will not, act upon any proposed nominee. In the past every nominee has been accorded a hearing and an up or down vote (unless the nomination was withdrawn). The assertion that the Senate has never acted upon a nomination this late in a president's final term is simply false.

Sen. Hatch ignores the plain fact that the people have spoken by electing the President, who has a constitutional duty to fill judicial vacancies, just as the senators have a duty to consider and act upon his nominees. If Supreme Court vacancies may only be filled during times of political serenity, as Sen. Hatch implies, the Court's membership may never be made whole.

How to Read the Polls

The latest polls show that Clinton and Trump are now in a statistical dead heat with a small edge to Trump. The polls also indicate that Sanders would defeat Trump handily, by as much as 15 percent points. I am not a statistician but it would seem the obvious explanation for this anomalous projection is that many Sanders supporters when polled, are either not expressing a preference as between Clinton and Trump or are favoring Trump in order to enhance the status of their own candidate in his head to head match up with Trump. If that is so, the compelling conclusion is that a large number of these Sanders supporters will ultimately vote for Clinton in the general election (if they vote at all) rather than risk a Trump presidency. Thus, Trump's apparent strength in the polls, vis a vis Clinton, is probably illusory. Of course, things may turn out very differently if the Libertarian Party ticket includes William Weld, a candidate likely to have strong appeal to socially progressive and fiscally conservative voters.

A Flexible Constitution

The single most urgent and overriding function of our Constitution is to insure that the rights of those who lack the votes to enact policy are not wrongfully diminished or debased because of their minority status. That protective imperative is timeless and should not be subject to changing mores, concepts or language.

But to the extent that the Constitution also serves as a blueprint for governance, it is foolish and unhelpful to worship words or concepts crafted in another time to deal with a very different world. Many of the Founders had perspectives about slavery, race, punishment, women's rights and social relationships that are completely out of step with modern thought and philosophy. Because they knew change was inevitable, and necessary, they bequeathed to their posterity a document that can live, breathe and adapt.

To insist that today's legal and moral issues must be resolved only by reference to the Constitution's 18th century language, or to the meaning attributed to such language by its contemporary populace, is neither justified nor forward looking. Such an approach merely straitjackets our society and inhibits its continued growth and world leadership

Obama,Syria and Asylum

Peter Wehner, in his Op-Ed article (Nov.28,2015, p.A19), attempts to create the false impression of fair-mindedness by referring, in passing, to Republican shortcomings as a contributing factor to the sorry state of affairs in Syria. Yet, the principal thrust of his essay is to perpetuate the Republican libel that the President, by choice, has been historically polarizing.
Wehner chooses to ignore the unprecedented hostility which his party has directed at Obama even before he assumed office. Any attempt by the President at compromise was almost unanimously rejected by a party unified in its common goal of obstruction, even if that meant voting against programs Republicans had previously proposed or embraced.
And when the President stated that he was prepared to enforce by arms his "red line" ultimatum but bent to the outcry that only Congress could declare war, Republicans blocked congressional action, effectively repudiating Obama's authority to act.
Yes, there are legitimate concerns about terrorists posing as refugees but the President's upbraiding of Republican opposition to asylum must be seen as the exasperated response of one who has endured seven years of unyielding and unreasonable opposition at every turn.

TO THE EDITOR:

Unquestionably, it is scandalous to hold suspects in jail pending trial simply because they are too poor to make bail and Chief Judge Lippman is to be commended for addressing the issue in his final months in office (NYT Oct.3, Page 22).

However, the solution to the problem does not require new laws or even a new policy. It merely calls for judges to better use their existing discretion to release defendants on their own recognizance when it is clear that they are not a flight risk.

Judges are already provided with data in each case documenting a defendant's community ties, thus enabling the court  to assess the likelihood that he will return for trial.

As a criminal court judge in Manhattan I frequently released defendants pre-trial without bail, even over the objection of prosecutors, when it was clear, as in many if not most cases, that requiring cash bail or a bond was not warranted. My willingness to utilize parole was rooted, perhaps, in the lessons learned from my participation as a law student in 1961 in the Manhattan Bail Project conducted by the newly-formed Vera Foundation, which demonstrated that accused persons with ties to their community were more likely to return to court then those released on bail.

Judges can, and should, be making far greater use of their existing authority to release defendants pre-trial. It is the humane and sensible thing to do and will ensure that poor persons accused of minor crimes do not languish in jail awaiting trial.

Gerald Harris