Defending Guns, Ignoring ‘Due Process’

Millions of Americans are almost literally up in arms over the prospect of a few commonsense restrictions on “gun rights,” but there has been no similar resistance to far more sweeping, post-9/11 encroachments on fundamental constitutional rights relating to due process under the law, notes Lawrence Davidson.

By Lawrence Davidson

Question: Why is it that so many Americans are angrier over the prospect of relatively minor adjustments to the gun laws, than they are over the serious erosion of Constitutional rights to due process in the courts? 

Despite the fact that proposed changes to the gun laws would leave the Second Amendment’s alleged basic right of gun ownership intact, thousands of Americans ralliedin state capitals across the nation last week to demand their “right” to own all manner of automatic weapons and multiple round ammunition clips.

Sir Thomas More, a chancellor to King Henry VIII who purportedly was a staunch defender of the rule of law and who was executed in 1532 for refusing to accept the king’s edicts regarding his break with the Catholic Church. (Painting by Hans Holbein the Younger)

The rationale for this ranged from “the Second Amendment comes from God,” a popular claim with protesters in Austin, Texas, to the equally absurd notion that the Obama administration is obsessed with controlling all our lives.  “It is not about guns, it is about control,” proclaimed the folks rallying in Annapolis, Maryland.

All this took place on the nation’s first impromptu “gun appreciation day” on Jan. 19, during which five accidental shooting occurred at celebratory gun shows and three others took place elsewhere. Nonetheless, as one protester in Maine put it, the right to “bear arms” is “a constitutional right no one can take away.”

Actually, beyond the fact that his understanding of the Second Amendment and why it was added to the Constitution is dubious, the last 12 years have proved this fellow from Maine quite wrong in another way. There has been an erosion of constitutional rights that are much more important than his so-called inalienable right to own weapons with 30- round clips.

For instance, the federal government has been steadily eroding the Fifth, Sixth and Fourteenth Amendments which guarantee one’s access to fair procedures in the courts. These are the ones that say your life, liberty and property cannot be taken away without your being charged with a crime and tried by a jury of your peers and/or a judge following due process rules. There are multiple examples of such deterioration:

–The federal government now asserts that it has the authority to hold Americans, as well as others, indefinitely without charge or trial. It does so on the assertion that we are in a perpetual state of war. This allows for the perversion of the Fifth Amendment, which allows for the suspension of Habeas Corpus in the special cases of war and rebellion. The government’s claim to this authority has been challenged in court but the U.S. Court of Appeals has sided with the Feds and the issue will probably end up in the Supreme Court. In the meantime, to fall into this black hole in American jurisprudence all you have to do is be is labeled a “terrorist” by the president. This, of course, can happen based on alleged evidence never made public.

–Another weird but relevant point: If you do happen to meet someone who is a member of a  “designated terrorist group,” don’t you dare try to talk them out of being violent. That is illegal as well. Our very own Supreme Court told us so in the 2010 case of Holder v. Humanitarian Law Project. In what may well call into question the rationality of a majority of the justices (the decision was decided 6 for the government position and 3 against), the Court declared that trying to persuade members of such an organization to give up violence is the equivalent of rendering “material aid” to the bad guys. Try to save their souls in this fashion and you will end up in some special hell-hole of an American prison where all communications with your lawyer will be taped for the benefit of the prosecution.

–The president can also put anyone, including American citizens, on a list of folks to be murdered at the first suitable opportunity. The government often uses drones to do this. Here is one of the ways this works: some Air Force officer living in Las Vegas gets up in the morning, has his breakfast, kisses the wife goodbye and tells the kids to behave at school. He gets in his four-door sedan and drives to Creech Air Force base in the desert outside of town. He passes through the security checks and finally gets to his “office.” The office is a video studio affair from which he controls a UAV (unmanned aerial vehicle) full of explosives. The UAV in question is actually sitting at an air base in Afghanistan, Yemen or some such location. Our man’s job is to remotely fly this thing and fire its missiles into somebody’s house half-a-world away. Doing so usually kills a man, his wife, his kids, and maybe the neighbors too. All this happens without any due process establishing the victims’ guilt or innocence.

–Then there is the case of the Holy Land Foundation in which five American citizens who ran the largest Muslim charity in the nation were convicted of “material support of terrorism” and sentenced to up to 65 years in jail on the basis of an anonymous witness whose credibility could not be challenged. This is a prima facie violation of the Sixth Amendment, which guarantees (or used to guarantee) the accused his or her right to confront the accuser. You would think the Supreme Court would have something to say about this, particularly considering that all the real evidence in the case showed that the Holy Land Foundation was simply supporting institutions such as Palestinian hospitals, and that its directors had repeatedly consulted the State Department to assure the legality of their activities. But no, in a miscarriage of justice not rivaled since Dread Scott, our present Court refused to hear the Holy Land Five’s appeal.

Why the Apathy?

Alas, with the exception of a handful of citizens, no one has hit the streets in protest over any of these horrid legal precedents. No one has dreamt up a “due process appreciation day” and called for commemorative rallies. How come? The answer has to do with how basic communal impulses play out. These include natural localism and the power of custom and tradition.

Natural localness is my term for the fact that most people live their lives according to the precepts of their immediate local communities. Therefore, local customs and traditions are usually taken quite seriously. In the United States, gun ownership is widespread enough to be an issue for self-conscious subsets of most local populations. In other words, for millions it is an important local custom which helps shape their self-images.

Gun ownership has also been tied to a Constitutional right allegedly enshrined in the Second Amendment. Support for this claim links these subsets into a powerful “special interest” that translates local custom into a national tradition. So, you can get thousands protesting on the same day in state capitals across the U.S.

What about due process? Is it not a local practice of major importance representing a national tradition enshrined in law through the Constitution? Yes, that is correct, but psychologically, due process rights have completely different personae. Due process laws protect the rights of those accused of wrongdoing. They try to assure, among other things, that the accused is assumed innocent until proven guilty.

Yet among the public this assumption is almost never held. If you end up in court, the public assumption is that you must have done something wrong. This is particularly true if you can be tagged with a label that suggests danger to or betrayal of community values. The media uses such labels all the time, for instance, terms such as terrorist or whistle-blower. So, those who are in need of due process protections are almost always assumed by the public to have acted outside the parameters of acceptable behavior.

The other side of this coin is that ordinary individuals, the mass who make up “the people,” naively feel that due process protections are not important to them. This is because they rarely trespass against the customs and traditions they themselves have, over time, established.  In other words, the “people” define what is acceptable.

Carrying guns or, in the local lingo, to “go packin,” is sufficiently within the bounds of acceptable behavior to be “normal” in much of the U.S. As long as you register all the weapons in your arsenal (even if you have enough of them to wage a small war), you are still a “law-abiding” citizen.

However, give charity to the Palestinians or try to tell the Kurdish PKK (a group on the State Department’s Terrorism List) how to pursue their goals non-violently, and you are a danger to the American way of life and on an obscenely fast track to indefinite detention. And very few law-abiding citizens are going to care, because if they notice your fate at all, they will assume you are guilty and getting what you deserve.

“The people” simply do not like those who think outside the box. They never have and probably never will. Non-conformists (in this case those in need of due-process and not those “packin”) make the majority feel uneasy and fearful.

In relatively peaceful times such “others” can be tolerated if they don’t make too much noise and, with the American Civil Liberties Union watching, they can demand their due process rights when needed. However, since the September 11, 2001, attacks things have changed.

We are being told that there are no more peaceful times. Crisis is, supposedly, perpetual and that leads to the erosion of the rights of those assumed guilty of something endangering the majority even if there is no real evidence or logic to the claim. This is an awfully slippery slope.

There is a passage in the 1957 play A Man For All Seasons, by Robert Bolt, that speaks to this present predicament. The play tells the story of Sir Thomas More, the singularly principled Chancellor of England under King Henry VIII. The passage we are concerned with is about the importance making the law available to all, even the Devil:

William Roper (More’s son-in-law): So, now you give the Devil the benefit of law!

Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

So that is the crux of the matter. As long as the law is denied to some, we are all at risk. The majority does not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, and particularly those who disagree with, live differently from, and think differently than the majority.

The United States, as we know it, can easily survive without everyone having access to assault rifles. It cannot survive without everyone having access to due process. Thus, as goes due process rights, so goes our democracy.

[As for the origin of the Second Amendment, it lies, at least in good part, with the Founders’ perceived need to give local jurisdictions control of militias in slave-holding sections of the young United States. See Thom Hartmann’s piece on this issue.]

Lawrence Davidson is a history professor at West Chester University in Pennsylvania. He is the author of Foreign Policy Inc.: Privatizing America’s National Interest; America’s Palestine: Popular and Official Perceptions from Balfour to Israeli Statehood; and Islamic Fundamentalism.

9 comments for “Defending Guns, Ignoring ‘Due Process’

  1. elmerfudzie
    January 28, 2013 at 21:46

    Reasserting States rights will eventually resolve the underlying issues here. In fact, some states may very well decide to secede. I wish them well. Desperate actions stem from raw frustration and endless betrayals,to wit, the recent case of secession from the USA by the Lakota American Indians. There is an ever encroaching federal presence into all jurisdictions of law enforcement, and it has begun to alarm the general public. This unwelcome presence has been defined by and crystallized into two documents, the NDA and Patriot Acts. Hawaii and a few other like minded state legislatures have shredded these acts in opposition to anything that superimposes authority over privileges guaranteed in the Bill of Rights and in particular, states rights. Vigilant citizens are taking steps to vocalize more and to literally arm themselves against any new schemes intended to strengthen Washington and beltway hegemony. That is to say using domestic drones, spies, fifteen thousand in number so far, militarizing local police, and or internet filtering in any substantial way. Circling the wagons and keeping our powder dry is at the very essence of who we are, or don’t they know that?

    • scott
      January 31, 2013 at 23:11

      Chinese Communist Party Mouthpiece Demands Obama Disarm Americans Again

      Beijing state media calls for “urgent gun control” in US

      Paul Joseph Watson January 29, 2013

      Global Times, a newspaper described as an “angry Chinese government mouthpiece,” recently published an editorial in which it called for “urgent gun control,” in the United States, the second Chinese Communist Party publication to do so within the last month.

      The newspaper’s January 17 front page editorial entitled Political inertia hinders gun control action, states that there is “clearly an urgent need for gun control in the US,” lamenting that it will “be impossible for the country to ban guns.”

      Striking an authoritarian tone, the editorial notes how, “The difficulties in promoting gun control show that US society lacks authorities willing and able to push forward reform.” Presumably, if the United States were a one party dictatorship like China, such “reforms” would be far easier to implement.

      The editorial goes on to claim “how different China is from the US” and how the failure of gun control legislation “has become an institutional defect” of the United States. The piece even uses the gun control debate in the United States as an example of why the power of China’s ruling Communist dictatorship should not be weakened, arguing that, “China’s social transition cannot be developed into a process of decreasing of authorities.”

      According to an investigation by Foreign Policy Magazine, Global Times is a “hyper nationalistic” publication “located within the sprawling Haiwaiban campus of the People’s Daily, the stodgy old organ of the Chinese Communist Party.” The People’s Daily owns the newspaper, which FP’s Christina Larson describes as an “angry Chinese government mouthpiece” that specializes in “attacking American values.”

      Global Times is China’s third largest newspaper with a daily print readership of 2.4 million and a web audience of 10 million.

      The Communist Party of China has not been shy in its advocacy for gun control in the United States. As we reported last month, the Chinese press agency Xinhua, which “is subordinate to the State Council and reports to the Communist Party of China’s Propaganda and Public Information Departments,” published a report on December 15 which urged Barack Obama to wage “a protracted war” on the second amendment.

      The editorial noted that the Sandy Hook massacre provided Obama with an opportunity to push his agenda and that there should be “no delay for U.S. gun control.”

      The bleak irony of Chinese government mouthpieces pushing gun control in the US is of course the fact that the Communist Party was founded by Mao Zedong, whose policies killed 40-70 million Chinese citizens during the cultural revolution.

      Mao himself once remarked that “political power grows out of the barrel of a gun,” an understanding he ruthlessly put into action by disarming people who had no means to defend themselves against his genocide.

      “The communist party must command all the guns, that way, no guns can ever be used to command the party,” Mao stated before applying gun control laws he had inherited which “made it illegal to import or possess rifles, cannons, or explosives without a permit.” The laws were updated in 1957 when the National People’s Congress outlawed the manufacture, repair, purchase, or possession of any firearm or ammunition “in contravention of safety provisions.”

      China is routinely rocked by riots staged by residents furious at the arbitrary theft of their land by the state, which under the Communist system claims that the government owns all land and that private property rights are non-existent. However, the state-owned media ensures that news of the protests does not reach a national audience.

      Those subjected to brutal forced relocation programs, some of which end in state-sanctioned murder, have no means to defend themselves against heavily armed police and PLA troops.

      The fact that Americans would be angered at being lectured by propagandists working on behalf of a one party dictatorship about their inherent rights is understandable. That is, unless you’re someone like Peter Beinart of the Daily Beast, who in response to CNN host Piers Morgan’s crusade against the second amendment, wrote that Americans are going to have to “accept” being lectured by the likes of Morgan and “Chinese officials” as part of “Globalization 2.0,” under which Americans must submit to “increased interpenetration by foreign immigrants, products, money, and mores.”
      Handing over America to the chinese without the true (Patriot) Americans. for Obama to do so he will have disarm all Americans citizens. befor his debt is due.which I think is in March 2013? I would tell all Patriots to gear up and when thay kick your door in. what ever you do don’t give then your guns.

  2. Hillary
    January 27, 2013 at 20:52

    “Moderating one’s own blog…or even gatekeeping one’s own blog…doesn’t come close to the threat proposed by a militarist government ”
    .leftover –

    of course not,I couldn’t agree more but you are comparing apples with oranges.
    However censorship of “out of the Box” comments on 9/11 appear to be a special target here.
    “First, it is ridiculed.
    Second, it is violently opposed.
    Third, it is accepted as being self-evident.”
    – Arthur Schopenhauer

    • leftover
      January 27, 2013 at 21:27

      Where did 9/11 come from?
      I was just trying to render a little assistance.
      Never mind…please.

  3. leftover
    January 27, 2013 at 12:26

    Professor Davidson fails to mention an important point: By positioning the base that fires the weapons attacking the enemy within our borders, the United States government has extended the field of battle to include all U.S. territory… the states, possessions, installations, embassies etc. This provides the rationalization necessary to enhance and extend those powers claimed by the government, under the mantle of “national security,” to alter the 5th, 6th and 14th Amendments, among other things.

    On “liberal apathy,” another professor…Thomas Harrington of Trinity College in Hartford, CT…has an interesting theory on How Liberals Shirk Responsibility for Atrocious Policies. He quotes Rahm Emmanuel:

    “They like the president, and that’s all that counts.”

    Harrington’s use of Pierre Bourdieu’s framework on cultural and social capital…and distinction…makes more sense to me, especially as it applies to both primary factions within the electorate, than Davidson’s “natural localness.”

  4. Hillary
    January 27, 2013 at 11:42

    ” As long as the law is denied to some, we are all at risk. ”
    What a good piece by the history professor.
    A unbelievably shameful miscarriage of justice our Supreme Court containing 3 Justices with dual loyalties carried when they refused to hear the “Holy Land Five’s appeal”.
    Give charity to the Palestinians as the “Holy Land Foundation” did and you get sentenced to up to 65 years in jail on the basis of an anonymous witness.
    Whereas give Israel over $2,Billion in private donations and they are all Tax deductible.
    That directors of the “Holy Land Foundation” repeatedly consulted the State Department to assure the legality of their activities goes to show just how low justice in the “Land of the Free” has sunk.
    As Professor Davidson says in his excellent piece above ” “The people” simply do not like those who think outside the box.
    BTW — as long as Consortium News refuses comments containing views “outside the box” and deemed unacceptable we are also all at risk.

    • leftover
      January 27, 2013 at 13:42

      Moderating one’s own blog…or even gatekeeping one’s own blog…doesn’t come close to the threat proposed by a militarist government altering the Constitutional definitions and intent of Due Process and Equal Protection Under the Law. Besides, if some comments are accepted and others not, perhaps the commenter should examine the rhetoric and style used in those comments that appear refused. I say “appear” because many blog owners, especially busy ones like Mr. Parry, employ automated moderation…application software…to do the basics on spam control and filtering offensive content. Even small blogs use spam control and filtering these days. I’m surprised Parry is still on WordPress, (which is notorious for losing comments), and not Disqus, (which is notorious for aggressive spam control and content filtering). Including too many links, using cut/copy and paste too many times, (especially with WordPress), and “aggressive” terminology can result in such software kicking in. And once your IP address has been flagged, it will get more and more attention. Short of direct communication from Mr. Parry concerning moderation of any comment, I think it’s safe to assume automation might be your culprit, not owner moderation.

      I cannot agree with Davidson’s assertion on “The people” and their rejection of those who think “out of the box.” It simply is not historically accurate. As David Moberg points out in Listing Left at the online blog of Dissent quarterly, writers like historian Michael Kazin, (American Dreamers: How the Left Changed a Nation), journalist John Nichols, (The “S” Word: A Short History of an American Tradition…Socialism), and most recently Peter Dreirer, the E.P. Clapp Distinguished Professor of Politics at Occidental College, (The 100 Greatest Americans of the 20th Century),

      [M]uch of what we now take for granted as common sense was once espoused by people who were widely considered left-wing radicals.

      Or…people who dared to “think out of the box.” These people may not have been fully accepted at the time, but looking back we can see a good many who were:
      Theodore and Franklin Roosevelt.
      Helen Keller
      Billie Holiday
      Billie Jean King
      Martin Luther King
      Even popular politicians like LBJ and Mike Mansfield, certainly not Leftists, dared to “think out of the box” and take risks…think Medicare…to advance social policy.

      Davidson’s assertions on public acceptance of “out of the box” ideas just don’t add up.

  5. Frank
    January 27, 2013 at 10:14

    So what you’re saying is its a tragedy that we’re losing our constitutional rights, but then you advocate violating the second amendment. That’s some grade A hypocrisy.

    • rosemerry
      January 29, 2013 at 15:26

      You have no explained that at all.

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