By Karen MacNutt,
Contributing Editor

The train came slowly to a stop so the black shirts could get on. While some stood guard at each door of the car, two others moved from passenger to passenger. "Papers. Have your identity papers out." Randomly they pick on a nervous passenger. "Stand up! We want to search you. You don't object, do you?" they said with a smirk. The other passengers watched while the person picked was put to the indignity of being publicly searched, of being treated like a criminal. "What's this you are reading?" questioned the officers. "This criticizes the government. Are you against the government? Do you support those who are against the state?" The man mumbled that he was a good citizen. "Then you don't need this trash," said the officer confiscating the book, "do you?" The man did not object. It was only a book. "What is your ancestry?" Questioned the officer, "You look foreign to me. How do I know your papers are not forged? Come with me while we check this out."

The scenario above, one we associate with the Nazi's of Hitler's government, is now possible in the United States. Those who support big government have always used fear to promote their agenda. Although many Americans believe the Supreme Court will protect them, they should remember that the Supreme Court once ruled that Black Americans were not people and that it was all right to place Japanese Americans in Concentration camps during World War II. The Court hesitates to challenge things put forward by Congress or the President in times of national emergency or turmoil.

The grasp for power in the name of the war on terrorism is not new. During the last part of the 19th century and the first part of the 20th century, violence by radical union organizers, anarchists, and Communists resulted in riots, assignations, and bombings which led to a series of laws repressing freedom of speech and association. For the most part, the Supreme Court went along with these laws. A few jurists, such as Oliver Wendell Holmes, wrote dissenting opinions which became classic expressions of liberty.

Between the war on drugs and the war on terrorism our right to be free from random searches has been greatly reduced. Recently, the Supreme Court ruled that police could enter a bus with no probable cause, demand people produce identification papers, and request "permission" to search people randomly. Although the people on the bus were undoubtedly intimidated by this type of police activity, the Court stated that because the people searched had given their consent, the searches were lawful.

The Customs and Immigration authorities have even broader powers. They can conduct a border-like search (that is tear your car apart and strip search you if they want) within 100 miles of a U.S. Border (including the ocean). With the "war on terrorism," the government is also claiming the right to hold people without charge indefinitely. Sure, they have good sounding reasons, but it does not change the fact that they are depriving someone of their liberty without due process of law. It also does not change the fact that the accused could be innocent. It does show that we are slowly reversing the presumption of innocence to allow the police to assume you are guilty and to force you to prove otherwise.
All of the Bill of Rights is important. All of it must be defended.

We have become too accepting of being searched when we enter airports or public buildings. In those cases, we at least have the option of not entering the building. That is bad enough. We should not allow the government to engage in random public searches. Today the excuse is terrorists, tomorrow it will be something else.

You should always be polite to police officers. They are just doing their job. You should never give your consent to them to be searched unless they tell you exactly what they are looking for and then you should limit the search to a specific place. Unless they can give you an immediate public safety reason, such as they are looking for a bomb, you should not consent to random searches.

If they imply you must have something to hide, you should say, "Oh, no officer. It's just that my family lawyer told me to never consent to a search unless the officer has a warrant or has a specific reason relating to an immediate threat to public safety. If you want to give me your name and phone number I'll have my lawyer call you. I'm sure she will help you with whatever you need."

Clearly the officers will not be happy and clearly you must be very polite and friendly. Just as clearly, we should not concede the right to be free from random searches by the government.

There is a growing shift in law enforcement to focus on "preventative" measures. In short, the government takes action against its citizens, not for bad acts they have done, but for bad acts they might do. There are an increasing number of laws and regulations that make one set of inoffensive actions a crime because it is feared that someone might use that inoffensive act to commit a different crime. This is very destructive of our concept of liberty. Before the war on terrorism, this trend was most evident in laws dealing with firearms.

Throughout the United States those who do not like guns have been focusing on laws directed at people who are basically law abiding. They promote rational sounding laws that appeal to the general public but have as their unstated goal the disqualification of as many people as possible from being able to own guns.

One example of this is the so called "safe storage" laws. Although some have fairly reasonable provisions, others do not. In Massachusetts, for example, the stated reason for safe storage laws was to prevent children from getting hold of firearms. The penalties preclude someone who violates the storage law from ever owning a firearm in the future. The law requires you to have a trigger lock on the gun or to keep the gun in a locked container. No other form of securing a gun satisfies the statute. Thus a gun locked in a glass case would be lawful but a gun chained to the wall would not be. The law has been applied against people who were transporting a handgun in the console of their cars. It has been applied to new residents who had not yet unpacked their belongings. The presence or absence of a child in the household is not needed to obtain a conviction. An objective look at the circumstances of the storage is not made. The breadth of what at first appeared to be a simple "safety" provision has made keeping a gun for self protection, almost impossible.

Another tendency has been the blurring of lines between misdemeanors and felonies. Felonies are the most serious crimes. A conviction for a felony often results in a civil disqualification For example, a felony conviction in some states results in the loss of the right to vote, the right to serve on a jury or the right to have firearms. Misdemeanors were always considered minor crimes which did not result in any civil disqualification.

A number of laws now refer to "crimes of violence" rather than felonies and misdemeanors. Some laws refer to crimes committed while in possession of gun. Both of these references have potential problems.

Crimes such as murder, are crimes of violence. The crime of assault and battery is considered to be an act of violence even if the act was such that the majority of people would not consider it "violent." An "assault" is a placing of someone in fear of being wrongfully touched. A battery is an unjustified touching no matter how slight. Pushing someone ahead of you to get through a crowd could be an assault and battery even though you intended no harm. Kissing someone who did not want to be kissed is an assault and battery. In some cases just taking someone's hand could be considered an assault and battery.

When someone has committed an "assault and battery" by attempting to push someone aside who is being obnoxious, the court that later looks at the conviction as a "crime of violence," will probably not go behind the conviction. Because an assault and battery can be violent, it will be treated as if it were violent. You might ask, "Why don't they have classes of assault to distinguish between serious assaults and minor incidents." They do. A serious assault was always considered an "aggravated assault." It is a felony. "Simple assault" is a misdemeanor. Both are considered crimes against the person of another.

When new laws abandon the old distinctions of felony and misdemeanor, problems arise. The term "crime of violence" abandons the traditional distinction. When this change took place in Massachusetts, we suddenly found security guards, teachers and others whose occupations sometimes called for them to restrain violent people, disqualified from owning guns because at some point they had allowed a charge of simple assault to enter against them rather than fighting the matter in court.

The use of the term "while in possession of a gun" or "involving a gun" as an aggravating factor in a crime also causes problems. In Massachusetts such wording was used to disqualify from firearms ownership anyone who had ever been convicted of an offense involving a gun.

Offences such as armed robbery and armed assault are already felonies and are already disqualifying. What was left? Offenses such as hunting after dark, having a loaded gun in the woods out of season, having a loaded gun while on a public way, and other offenses dealing with hunting, storage, and transportation of guns by licensed gun owners. Some of these offenses carried maximum punishments of $60 fine or 60 days in jail.

In some instances the words "while in possession of a gun" have been interpreted to mean that the gun was used to further the crime. In other cases the words have been used to turn a minor offense that had nothing to do with guns into a disqualifying felony because the person who committed the offense had a shotgun at home locked up in his or her gun rack.
Another area that has been blurred is that of adult and juvenile crimes. The juvenile justice systems were designed with the thought that young people, generally under the age of 17, sometimes do stupid things due to immaturity. The thought was that they should not suffer the burden of a criminal record their entire life because they did something stupid.

Typical juvenile crimes that fall into this category would be vandalism, use without authority of a motor vehicle, shop lifting, disorderly conduct, and brawling. If the crime was serious, such as armed robbery, the juvenile could be tried as an adult. Often the full rights guaranteed to a criminal adult defendant were not extended to the juvenile defendant. The juvenile, however, was not found "guilty," he was found "delinquent." A finding of "delinquent" was not a criminal conviction. Some parents would allow such a finding to enter against an unruly child in an attempt to "scare straight" the child. Many would not have allowed such finding to enter if they had thought the finding would become a permanent disqualification for the child.

The trend is now to enact laws that prohibit persons from having guns if they have been convicted of a "crime of violence" or were adjudicated a delinquent because of an act that would have been considered an "act of violence," without thought to how much violence was really involved. School yard fist fights and shoving matches resulting in no injuries or only very minor injuries are now lifetime disqualifications that seriously impact the career paths open to young people.

Such changes often have results that were not contemplated at the time a parent allowed his or her child to be adjudicated a delinquent. Depending upon how the new statute defines "act of violence," a person with a juvenile record that is 20 years old could suddenly find that they are disqualified from possessing guns, disqualified from getting a security clearance, disqualified from working in the public or private security field, and disqualified from military service. This is not an insignificant change. The same would occur to an adult who allowed a guilty plea to enter on a misdemeanor assault (the lowest level of assault) after being told by his or her lawyer that, because the offense was a misdemeanor, there would be no lasting disqualification. In one case in Massachusetts, a decorated combat veteran of the Korean War suddenly was declared unfit to continue to own his guns because he had been in a fist fight with another boy when he was a teenager over sixty years ago.

The so-called Lautenberg Act, Federal law, is another example of a law used to exclude. In the name of protecting women from domestic violence, a misdemeanor assault against a family member is a disqualifying offense for owning a gun. This does not make a lot of sense. A serious abuser would have a felony conviction. A current abuser would have a restraining order. A person with a misdemeanor assault but no current restraining order is probably someone who had a difficult divorce or adolescence but who is no longer a problem.

The primary result of Lautenberg was to disqualify a large number of people from owning guns who had been involved in minor offenses. This was, and is, a hardship for people in the military, police and security industry who lose their job because they can not possess firearms even at work.

The unfairness of these new laws is that they frequently change the effect of convictions long after the crime has been committed and the offender rehabilitated. They are harsh. They embitter people who feel they have been treated unjustly. They have little positive impact on public safety. We should all resist the temptation to pass laws just for the sake of doing something. There is little negative human activity that is not already covered by some law. The problem is that some people just do not obey the law. Passing another law or allowing police to have arbitrary or intrusive powers is not the answer. Eventually such power will be turned against otherwise law-abiding citizens.