“Pre-crime,” nicely eviscerated in the Spielberg-Tom Cruise film “Minority Report,” is now a popular concept among anti-Second Amendment activists. New York Governor Kathy Hochul (or, more likely, a ghost-writer with her approval) has issued an op-ed in the New York Times with the emotion-based headline, “The Supreme Court Case That Has Me Worried, for Survivors and for My State.” Anyone capable of reading it with their critical thinking skills activated should be able to recognize Hochul’s arguments as the deceptive and manipulative tactics they are.
Here we go…
Hochul: “…I’m so concerned about the outcome of an upcoming Supreme Court case, United States v. Rahimi, which next year will decide whether to uphold a gun safety law that protects survivors of domestic violence.”
That’s not what the case is about. What is at issue is whether a constitutional right can be removed from an individual based on what they might do, even though they haven’t done it. This is the essence of “pre-crime,” punishing citizens based on speculation, statistics, or the actions of other. It is unconstitutional, and, except to those who neither respect nor understand the founding document, obviously so. The Roberts Court will uphold the Fifth Circuit’s decision that government cannot prevent an alleged perpetrator of domestic abuse who has had a protective order issued against him (or her) from possessing a firearm….as it should. Felons are already prohibited from owning guns. A conviction of a serious crime justifiably forfeits the right to bear arms, just as a conviction can forfeit the rights to liberty and the pursuit of happiness. Hochel and her like want to use subjective criteria to decide who gets to keep their rights.
Hochul: “By overturning a federal law aimed at protecting survivors of abuse, the appeals court put forth an outrageous legal theory that claims individuals with domestic violence orders have a constitutional right to possess a gun.”
To aspiring totalitarians like Hochul, holding that the state can only inflict punishment on a citizen when there is a charge, a trial, legal representation and the opportunity to be acquitted by a jury is “an outrageous legal theory.” It is, in fact, a basic tenet of the justice system and criminal law.
Hochul: “The Supreme Court has a choice: It can lean into the dangerous Fifth Circuit theory that guns cannot be regulated for the purpose of protecting survivors of domestic violence, or it can uphold federal law that keeps guns out of the hands of dangerous individuals.”
That one is laughable. Everyone knows–including Hochul—that federal law does not keep guns out of the hands of dangerous individuals, because the really dangerous individuals pay no attention to the law. More significant still is the deliberate vagueness of “dangerous.” If someone can have their Second Amendment rights removed because the government thinks he or she is “dangerous,” what stops this from being a precedent to justify First Amendment rights being removed? After all, speech makes progressives feel “unsafe.” How do Hochul and her Borg-mates distinguish between their opposition to stop-and-frisk policies, which permit loosening of the Fourth Amendment guarantee against unreasonable searches in order to apprehend “dangerous individuals” based on police assumptions regarding the race, demeanor or actions, and their advocacy of suspending Second Amendment rights based on another individual’s complaints? They can’t, and Hochul doesn’t even try. Her argument is aimed at emotion, bypassing law and honesty.
Hochul: “In the spring of 2022, we bolstered our state’s red flag laws, getting guns away from people like domestic abusers who pose a risk to themselves or others and closing loopholes that made the tragedies in Buffalo and in Uvalde, Texas possible. As a result, courts have issued roughly 9,000 extreme-risk orders of protection in the past year, up from 1,400 in the preceding two and a half years. Depending on the scope of the court’s decision in Rahimi, these protections could be at risk as well.”
Those aren’t “protections,” they are breaches of individual rights. Red flag laws are pure pre-crime, and unconstitutional as well as unethical. They also represent a treacherous slippery slope. The key phrase above is “people like domestic abusers.” Who gets to make the determination that someone is “dangerous” even though they have been convicted of no crime? The answer is “the good people who know best,” like Governor Hochul.
No one should trust someone who puts her name an op-ed like this to have control over our individual rights.
Ethics Alarms 
I know of two individuals who were foolishly involved with manipulative women that, during and after an argument, claimed to have been struck by the men I know. One petitioned for a restraining order and then retracted it.
This is the type of thing that can follow a person around. When only an accusation can cause rights to be removed, we should all be afraid.
I’m reading a book now called “The Train to Crystal City” about not just Japanese-Americans, but also German and Italian Americans who were interned with their families in Texas because of anonymous and, many times, baseless accusations made against them by neighbors that focused the government on them. The government used the “These are not ordinary times” rationalization to deprive legal residents of their property and liberty. The anti-gun hysterics want to do the same to all residents.
But aren’t we obligated to believe all women?
As long as they don’t accuse high-ranking Democrats. Everyone else is disposable.
Let us not forget the words of Judge Wayne Andersen.
https://archive.md/mgil3
Jack,
You nailed the key phrase…”people like domestic abusers”…
For one thing, “domestic abuser” sounds an awful lot like “domestic terrorist” and it takes very little to leap from one to the other. And that label has been used – informally – on…let’s see:
Republicans
Christians
Those against abortion
Those that support/supported President Trump
Those that support the 1st Amendment
Those that support the 2nd Amendment
Those that legally own firearms
Nearly anyone who refused to cave to Wuhan shot “mandates”
Anti-vaxxers
Law-abiding Muslims
I’m sure there are others, but that’s a start…
The Governor makes me feel unsafe. Is she dangerous too? This just goes to prove that any oath of office is meaningless if that which is embodied within the oath is not politically popular with those who cannot think for themselves.
The only time I think some preventative measures might help is with suicides and guns. Any household with a known suicide risk or suspected risk… those guns need to be removed or locked up tight. Most gun deaths are from suicide and most suicides are done by guns. It’s the same prevention as putting meds in single capsules. It is also a lot more possible and palatable than any other form of gun control. I think this is needs to be more of an educational campaign than anything else though. Maybe free gun locks or something. That’s about all you can do.
Sorry, that is a no-go for me. If someone is TRULY suicidal, you can have them involuntarily committed as a danger to themselves. This whole ‘suicide-risk’ thing is no different than the ‘all men being divorced are potential domestic abusers and need even more rights taken away’ of Gov. Hokul. If you say the mental health industry doesn’t do a good job with that, then fix the mental health community. Don’t take away people’s rights.
There are way too many ways to commit suicide than with guns for this even to make much sense.
Other methods:
Jumping off a tall object
Any number of poisons that are easily obtainable (like fentanyl)
Walking in front of a semi
Opening the valve on a nitrogen cylinder in a closed room or using dry ice for the same effect
etc (probably the easiest way to go).
Statically speaking, people seek the easiest method in their moment of weakness. Delaying the attempt by even the few minutes required to unlock a gun from a safe can be enough. Some historical examples include sticking one’s head in the oven to die painlessly of CO poisoning. When coal gas was replaced with natural gas circa 1920-1960, the suicide rate permanently plummeted. It is impossible to suffocate on natural gas, so sticking your head in the oven might cause only a slight headache (your house might also explode, but that is far from painless). Similarly, suffocating on CO while sitting in an enclosed garage in a running vehicle used to be a common method of suicide. When emissions controls in the 1980 and later all but eliminated CO emissions, the number of suicides (and accidental deaths) permanently plummeted. Banning personal gun ownership could absolutely permanently cause the suicide rate to similarly plummet. Unlike coal gas and crappy cars, however, there are legitimate uses and constitutional rights regarding guns that preclude most gun regulation. These rights must be balanced against potential benefits, and in that regard, we are mostly stuck with educational outreach as Demeter suggests.
That Titan submersible under 12,000 feet of Atlantic Ocean would have been an instantaneous, painless form of suicide…just saying…
Maybe but it’s cost prohibitive. Talk about displaying privilege. $250,000 a pop is a lot of money, which not many poor suicidals can afford. DIE initiatives require equal access to all means of suicide.
jvb
There is an article on this case in the Volokh Conspiracy and here is a comment.
https://reason.com/volokh/2023/07/11/new-york-governor-submits-amicus-brief-to-justice-kavanaugh-in-rahimi/?comments=true#comment-10149429
Here was my reply.
Here was David Nieporent’s reply.
I’ve always enjoyed the “self-proclaimed ethicist” knock. It’s signature significance for an asshole. I’ve earned my living as a professional ethicist for 25 years; I’m also a professional stage director, because I’ve directed, successfully, over 200 plays, reviews and musicals. I am, in fact, lots of things, all of which I qualify as due to my actions and performance, as well as the recognition of others.
Meanwhile, this is gibberish: “the law at issue is not, in fact, based on what people “might do,” but what they actually have done. To be sure, the law does not require proof of a crime, let alone proof beyond a reasonable doubt — and perhaps SCOTUS will say that such is required — but it is not based on speculation. It is based on proof based on a preponderance of the evidence.” The law in question is, in fact, based on speculation about a future crime that someone might do but hasn’t done yet, and may never do. That’s what “pre-crime” measures are. There are already laws criminalizing spousal abuse—which must have 1) occurred and 2) be proven beyond a reasonable doubt. Rights cannot and must not be removed from citizens based on guilt not subjected to a beyond a reasonable doubt standard—and that’s not something that “irritates” me, it is basic respect, fairness, and reciprocity.
And how could a requirement of proof beyond a reasonable doubt apply when what has to be proven is that a future criminal act will occur? His statement is moronic.
And do me a favor, ME: I get insulted here enough by trolls and other unsuccessful commenters. I don’t need established commenters to relay insults by proxy. I’ve read that jerk’s Twitter feed: he’s the kind of lawyer I was talking about last night at a DC Bar ethics seminar, whose IQ is lowered about 50 pts by blathering on social media. If he wants to take me on, let him try to post a rational, professional comment like anybody else.
Incidentally, I hadn’t read the VC’s comments for a while. That’s ugly stuff. Volokh needs to have someone moderate it.
Maybe but it’s cost prohibitive. Talk about displaying privilege. $250,000 a pop is a lot of money, which not many poor suicidals can afford. DIE initiatives require equal access to all means of suicide.
jvb
Speaking of “Pre-crime” this article “A generational shift on guns” originally printed by the St. Louis Post Dispatch Editorial Board was recently reprinted by the Richmond Times Dispatch Editorial Board. See link:
https://www.arcamax.com/politics/opeds/s-2840752
This article discusses the idea of “mandatory psychological evaluations” for citizens seeking to acquire a firearm. This is such an outragous concept that I took the liberty to chastise the RTD Editorial Board for Bolchivek tendencies. Can you imagine what next. Literacy tests before voting?
What is your objection to literacy tests for voting?