Address by DAVID KOPEL, Associate Policy Analyst, Independent Institute
Delivered to the Subcommittee on Crime of the Committees on the Judiciary, U.S. House of Representatives
From my own family background, people who threaten violence against government employees are particularly frightening. For most of my childhood, my father's twenty-two year career in the Colorado House of Representatives was in progress. When he chaired the House Judiciary Committee, he steered to House passage the only major gun control - a ban on so-called "Saturday Night Specials" - that has passed any house of the Colorado legislature in the last twenty-five years.
My mother served during the 1970s and 1980s as the Colorado and Kansas director of the federal govemment's United States bankruptcy trustee program. Before I went to work for a think tank, I served as an assistant attorney general for the Colorado Attorney General's Office, handling enforcement of environmental laws.
The cowardly criminals who killed so many innocent people in Oklahoma City could just as well have killed my mother, my father, or myself. Just as much as any other citizen of the United States, government employees are absolutely entitled to live their lives free of criminal violence and criminal intimidation.
It is wrong to dehumanize any class of people, and that includes people such as my family who work for the government. Persons who advocate and perpetrate criminal violence against government employees are no less wrongful as any other criminals who act out of prejudice and bigotry.
It is essential that government employees, like all other Americans, be safe. Not just physically safe, but safe to go about their lives free of fear, and free to exercise all of their civil and Constitutional rights.
As we think about safety, it is important not to fool ourselves. Far too often in America, legislatures, including Congress, having misunderstood or been misled about potential threats, and have enacted repressive legislation that has sacrificed liberty without improving safety.
In the United States, there is a long sad history of interest groups or government officials taking a few isolated incidents and inflating them into some kind of vast threat, requiring an immediate, repressive response. Back in 1798, President John Adams and the Federalists who controlled Congress were scandalized by the vicious campaigns against them in the press. These scurilous charges - such as accusations that President Adams had sent General Pinckney to England to procure a pair of young mistresses for him - show that today's political mudslinging, dirty as it often is, is nothing new.
At the same time, in these turbulent years following the French revolution, the French government worked furiously to obtain American support in the French conflict with England. French officials attempted to bribe American newspapers to take the French side in the conflict - and to criticize the pro-England policy of President Adams.
President Adams, unfortunately reacted in a manner that would set a pattern of federal error. Because a few of his political opponents were motivated by foreign bribes, he assumed that his political opponents as a whole were illegitimate. In 1798, Congress enacted and President Adams signed the Alien and Sedition Act.
This hated Act allowed the extra-judicial deportation of legal resident aliens whom the Administration considered to be a security threat. Criticism of the President was termed "sedition" and outlawed. Guilt by association was used to tar all Jeffersonians as disloyal.
Rather than calming the political waters, the Alien and Sedition Acts provoked a furious backlash. The Kentucky and Virginia Resolutions were enacted, in which state legislatures asserted the authority to nullify within their territory, laws which violated the Constitution - as the Alien and Sedition Acts certainly did.
Had President Adams decided to force the issue, civil war might have resulted. Happily, the Alien and Sedition Acts were never vigorously enforced. After Thomas Jefferson was elected in 1800, the Acts were repealed.
Decades later, a violent, deranged abolitionist named John Brown led a raid on the federal armory at Harper's Ferry, hoping to set off a massive slave rebellion. John Brown's delusional scheme was rapidly suppressed, and Brown was tried and executed. But John Brown's isolated act combined with the extremist rhetoric of some abolitionists led many Southern state legislatures to conclude that all the critics of slavery were part of some fearsome conspiracy to promote violent revolution and to destroy the South. Laws were enacted with suppressed anti-slavery speech throughout the South.
Abolitionists and slave owners both saw each other only in distorted stereotypes. The polarization led, of course, to the tremendous suffering of the Civil War, and in the long run to a solution to slavery which, unfortunately, left many ex-slaves in a condition of virtual slavery.
In the decades following the Civil War, the political leadership again overreacted to organizations which challenged the existing system. During much of the nineteenth century, and indeed a good part of the twentieth, conspiracy laws were used against unions and unions organizers. Criminal syndicalism laws (an updated version of John Adams' sedition laws) were employed against radical unions such as the "Wobblies" (the International Workers of the World).
During that period, some labor leaders were indeed people who sought the violent overthrow of the government. Some of them harbored various conspiracy theories, including antiSemitic ones. For decades, many states governments, and often the federal government, engaged in a policy of confrontation and war against this threat. Labor violence convulsed the nation. The year 1876 -the centennial of the United States of America - was wracked by labor riots in one major city after another. The old armories that one can find in the downtown of almost every major American city that was a city during the late 19th century were often built for suppressing labor riots. The Haymarket Massacre was one of the bloodiest, but hardly the only, tragedy resulting from a confrontation between militarized law enforcement and groups which the political system deemed unacceptable.
Some of the riot leaders were Communists or other advocates of violent overthrow. But a generally hostile press and political establishment overestimated the pervasiveness of such sentiments. Most workers simply wanted better working conditions, and a better share of the wealth that they helped produce.
In the end, it was the protection of the rights of working people, and negotiation over legitimate grievances, which led to an abatement of labor strife.
Even in the twentieth century, radical critiques of the govemment have too often been met with fierce government repression. During World War I, Eugene Debs, peaceful criticism of the draft landed him in federal prison.
During the Cold War, legitimate concerns about Soviet spies and their American accomplices (such as the Rosenbergs and Alger Hiss) led to repressive legislation, blacklists, loyalty oaths, and other infringements on the freedoms which distinguished America from the Soviet Union. Especially in the 1950s, criticism of the free enterprise system or of militarism was falsely equated with disloyalty.
At about the same time, many Southern state governments, as well as the F.B.I., were aware that "Communist agitators" were among those involved in the civil rights movement, as indeed they had been since at least the 193 Os. But the presence of a few Communists within the civil rights movement or its leadership (like the earlier presence of Communists within the labor movement), did not mean the civil rights movement was fundamentally communist, or that it should be suppressed although that is precisely what many state governments attempted to do for many years.
If it is easy for many Americans to see, in hindsight, the legitimacy of the viewpoint of Jeffersonians, of southern abolitionists, of labor organizers, of critics of militarism, and of the civil rights movement, it is not so easy for some Americans to respect the fundamental concerns of the many millions of their fellow citizens who are frightened of the federal government.
Today, there are many tens of millions of people who are frightened of the government, and many thousands (or perhaps more) who participate in militias. Some of them may have incorrect beliefs about the Brady Bill, or the ban on so-called "assault weapons," or the United Nations, or other political issues. But allegedly mistaken beliefs are no basis for federal jurisdiction.
Within these groups, as there are within almost any other group, a few criminals. Just as citizens should not imagine that because a few Congress people are found guilty of felonies most Congress people are criminals. Congress people should not imagine that because a few persons with antigovernment viewpoints are criminals, many or most militia members or other government critics are criminals.
Let us learn from history. Let us not be panicked into hasty actionthathistorywilljudgeharshly. Letusbeginaprocessof respectful dialogue and reform, not stereotyping and repression.
As Justice Brandeis understood, "Repression breeds hate; hate menaces stable government; the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."
One of the reasons that so many people have become fearful of the federal government, and some have become angry, has been the virtually uninterrupted expansion of federal laws, at the expense of civil liberty. The cycle of misleading media sensationalism, a couple of Congressional hearings, and then another broad and intrusive federal "remedy" has become all too familiar.
It is possible to assemble before any given Congressional panel a half-dozen very sincere witnesses who will claim that any given topic is 1. An immense problem; 2. Rapidly spiraling out of control all over the nation; and 3. Desperately in need of an immediate, sweeping federal remedy.
Sometimes these witnesses are correct. But other times they are not.
We know in retrospect that the Marihuana Tax Act of the 1930's was the result of racist campaign of disinformation about the use of marijuana by Hispanic criminals. We know that the Food Stamp Act in the early 1970s was passed as a result of tremendous misinformation about the extent of malnutrition in rural America. We know that, despite the wild claims of various law enforcement administrators, so-called "assault weapons" constitute only about one percent of crime guns seized by police, even in major cities. A climate of panic and misinformation about the Love Canal incident in New York led Congress to enact the Superfund law - a draconian law which imposes huge retroactive liability on companies and individual for lawful environmental practices, and which eliminates most ordinary due process protections for individuals targeted by the government.
Before enacting additional legislation in an atmosphere of media hype and prejudice, Congress would do well to slow down.
For example, we have no reliable hard data about how often government employees are being threatened or attacked. Still less do we have any hard data about how often existing state and federal laws are inadequate to punish the criminals involved.
Current criminal laws do not require that authorities wait until someone has actually been injured or killed. Making threats is, of course, a crime in itself.
Nor are states necessarily helpless or unwilling to act. In no state are the people who perpetrate or support violent crimes against government officials the majority of the population. Or even close to it.
Some problems are plainly inappropriate for a federal "solution." For example, some persons - living proof of the principle that a little knowledge is a dangerous thing - have begun filing purported liens or other alleged "common law," instruments in some state courts. Surely the remedy for abuse of state court procedures is through enforcement of existing procedural rules which punish frivolous or false legal filings, or through refon-ns of state court systems to provide whatever additional remedies may be needed. State courts are the business of the states, not of Congress.
The spirit of the Tenth Amendment suggests that before federal legislature acts, it considers what the state legislatures, and the people of the states decide to do. For example, one group in Montana is planning a ballot initiative to strengthen states laws against threatening government officials. Perhaps the law will be carefully tailored to address local conditions in Montana. Or perhaps the people of Montana will choose a different approach. But in any case, it ought to be the people of Montana, not 535 people - of whom only three are from Montana who decide what to do.
When the federal racketeering statute (RICO) was enacted in the 1970s, proponents promised that it would provide an important new weapon to target organized crime organizations, as opposed to prosecuting only individual criminals.
But RICO statute has also been used in ways which its sponsors never foresaw. For example, in the 1980s, an ambitious United States Attorney in New York City used RICO's preemptive strike provisions to destroy a securities firm, First Princeton, which was, years later, found to be guilty of absolutely no wrongdoing. But in the meantime, the company had been ruined, the employees had lost their jobs, and the owners had lost their business and the assets which they had built over years through honest hard work.
In other cases, RICO laws have been used against abortion clinic protesters. Instead of using Mafia laws against church groups, it would be better to fashion - as many legislatures have - more specific statutes which deal with the particular problem of access to abortion clinics.
In regards to antigovernment violence, proposals for broad new conspiracy statutes, or for broad newjudicial authority to destroy or disband organizations have not been shown to be necessary - particularly at a federal level.
We know from history that injunction and conspiracy laws have often been used unfairly against political dissidents, such as labor organizers.
Moreover, the criminally violent antigovernment organizations which are the focus of today's hearing are, almost without exception, tiny. Prosecution of the handful of criminal individuals involved will suffice to destroy the pathetic "organization" itself.
New federal mandatory minimums seem, sadly, to be instinctive reaction of some persons to almost every human ill. Mandatory minimums, by their nature, prevent judges and prosecutors from tailoring the punishment to the facts of the particular case, and as a result, injustice too often results. Some of the new proposed mandatory minimums for "violent anti-govemment extremists" would impose a two-year mandatory minimum on someone who shoved a policeman during an argument over a traffic ticket, a two-year mandatory minimum on a jilted teenage girl who sent her rival an anonymous letter "I'm going to tear your eyes out," and an eight year mandatory minimum on a homeowner who waved a baseball bat at a zoning inspector. None of these activities are justified, of course, and none of them are the intended target of the proposed mandatory minimums. But mandatory minimums are perversely designed to apply remedies which seem appropriate in the abstract to situations where they may be wildly inappropriate.
Oddly, today's hearings about "Violent Anti-Govemment Groups" and the threat they pose to local governments may be used to promote legislation aimed squarely at constricting, not helping, local governments. According to section 7 of the draft "Republican Form of Government Guarantee Act," when county governments enforce state and local laws against what they believe to be illegal conduct by federal employees, the federal government will become the judge of its own case. Rather than having the dispute settled by a neutral arbiter the courts - the dispute will be investigated by the federal employees own chief lawyer (the Attorney General), who may then unilaterally withhold Payments in Lieu of Taxes from the county.
It is an elementary principle ofjustice that no person (nor the person's attorney) can be the judge of his own case. And it's a misuse of language to claim that the federal executive's judging its own case in disputes with counties will somehow further the federal govemment's obligation to guarantee to each state a republican form of government. County commissioners are, after all, democratically elected. They - not the federal executive branch - are part of a state's republican form of government. Equating all militias with white supremacists is nonsense. Like the Los Angeles Police Department, some militias may have members, or even officers, who are racist, but that does not mean that the organization as a whole, or the vast majority of its members are racists. Most militias are composed of people with jobs and families; people who are seeking to protect what they have, not to inflict revenge on others for their own failings.
The frenzy of hatred being whipped up against law-abiding militia members is not unlike the hatred to which law-abiding Arab-Americans would have been subjected, had Oklahoma City been perpetrated by the Libyan secret service. It is not unlike the hatred to which Japanese-Americans were subjected after World War 11. Ironically, some politicians who complain about the coarse, angry tone of American politics do so in speeches in which they heap hate-filled invective upon anyone and everyone who belongs to a militia.
As this testimony is written, no evidence has developed which ties any militia (let alone all of them) to the Oklahoma City crime. At most, two suspects are said to have attended a few militia meetings and left because the militias did not share their goals. This fact no more proves a militia conspiracy than the hypothetical fact that the suspects went to church a few times would prove that the Pope and Jerry Falwell masterminded the Oklahoma City bombings.
That someone who perpetrated a crime may have attended a militia meeting is hardly proof that all militias should be destroyed. The step-father of Susan Smith (the South Carolina child murderer) sexually molested her one night after he returned from putting up posters for the Pat Robertson presidential campaign. What if someone suggested that the "radical" patriarchal theories espoused by Robertson and the Christian Coalition created the "atmosphere" which led to the incestuous rape, and that therefore all Christian Coalition members were responsible for the crime, and the FBI should "crack down" on them? The claim would be dismissed in a second; equally outrageous claims about gun owners should likewise be dismissed.
It is a sad testament to the bigotry of certain segments of the media that totally unsubstantiated, vicious conspiracy theories of the type which were once employed against Catholics and Jews are now being trotted out against militia members, patriots, and gun owners.
No militia group was involved with the Oklahoma City bombing. Despite the hate-mongering of the media, the "need" to start spying on militia groups is a totally implausible basis for expansion of federal government powers.
To respond intelligently to the militia and patriot movements, we must acknowledge that, although the movements are permeated with implausible conspiracy theories, the movements are a reaction to increasing militarization, lawlessness, and violence of federal law enforcement, a genuine problem which should concern all Americans.
We must also remember that it is lawful in the United States to exercise freedom of speech and the right to bear an-ns. Spending one's weekends in the woods practicing with firearms and listening to right-wing political speeches is not my idea of a good time, but there is not, and should not, be anything illegal about it.
If we want to shrink the militia movement, the surest way is to reduce criminal and abusive behavior by the federal government, and to require a thorough, open investigation by a Special Prosecutor of what happened at Waco and at Ruby Ridge, Idaho. If, as the evidence strongly suggests, the law was broken, the law-breakers should be prosecuted, even if they happen to be government employees.
Conversely, the persons responsible for the deaths of innocent Americans should not be promoted to even-higher positions in the FBI or federal law enforcement. If the Clinton administration were trying to fan the flames of paranoia, it could hardly do better than to have appointed Larry Potts second-in-command at the FBI.
Militias and patriot groups have been understandably ridiculed for a paranoid world-view centered on the United Nations and international banking. But ironically, many of the people doing the ridiculing share an equally paranoid worldview. Some members of the media and the gun control movement have no more idea what a real militia member is like than militia members have about what a real international banker is like. In both cases, stereotyping substitutes for understanding, and familiar devils (the United Nations for the militia, the National Rifle Association for the establishment media) are claimed to be the motive force behind the actions of a man who (allegedly) believes that the government put a microchip in his buttocks.
Nearly twenty years ago, an article in the Public Interest explained the American gun control conflict:
"[U]nderlying the gun control struggle is a fundamental division in our nation. The intensity of passion on this issue suggests to me that we are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization."
"On the other side is a group of people who do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America's unique pre-modem tradition - a non-feudal society with a sort of medieval liberty at large for every man. To these people, "sociological" is an epithet. Life is tough and competitive. Manhood means responsibility and caring for your own."
The author explained the disaster that America will create for itself if people in government attempt to "crack down" on fearful gun-owners, thereby fulfilling the worst fears that each group has of the other:
"As they [the gun-owners] say to a man, 'I'll bury my guns in the wall first." They ask, because they do not understand the other side, "Why do these people want to disarm us?' They consider themselves no threat to anyone; they are not criminals, not revolutionaries. But slowly, as they become politicized, they find an analysis that fits the phenomenon they experience: Someone fears their having guns, someone is afraid of their defending their families, property, and liberty. Nasty things may happen if these people begin to feel that they are cornered.
It would be useful, therefore, if some of the mindless passion, on both side, could be drained out of the gun-control issue. Gun control is no solution to the crime problem, to the assassination problem, to the terrorist problem.... So long as the issue is kept at a white heat, with everyone having some ground to suspect everyone else's ultimate intentions, the rule of reasonableness has little chance to assert itself."
Morris Dees of the Southem Poverty Law Center has begun promoting a federal ban on group firearms training which is not authorized by state law. First of all, state governments are perfectly capable of banning or authorizing whatever they want. The proposal for a federal ban amounts to asking Washington for legislation similar to that which various allies of Mr. Dees promoted at the state level in the 1980s, with little success. The majority of states having rejected a training ban, the federal government should hardly impose the will of the minority on the rest of the states.
A former direct-mail fund-raiser for the anti-gun lobby, Mr. Dees may be forgiven for a low level of concem for the exercise of the right to keep and bear arms. But the right to keep and bear arms necessarily includes the right to practice with them, just as the Constitutional right to read a newspaper editorial about political events necessarily includes the right to leam how to read. Just as the government may not forbid people from learning how to read in groups, it may not forbid people from learning how to use firearms in groups.
"Govemment is the great teacher," Justice Brandeis told us. Without the unjustifiable, illegal, militaristic, deadly federal violence at Rudy Ridge and at Waco, there would be no militia movement. The federal government should set a better example. If Ruby Ridge had led to a real investigation and corrective measures - instead of years of cover-up by both the Bush and Clinton administrations - then we would not be in the current situation.
Ruby Ridge and the Waco tragedies were not the fault of a few bad officials, but the inevitable result of a culture of lawlessness, militarization, and violence that has permeated far too much of the federal law enforcement establishment. When corrective measures are undertaken - as a coalition ranging from the American Civil Liberties Union to the Citizens Committee for the Right to Keep and Bear Arms has suggested - then we will see a massive reduction in the tension between millions of American people and their government.