The Brady Bill Was Unnecessary

by Dr. Gerard Emershaw

Ronald Reagan’s former Press Secretary James Brady has died. Brady was, of course, most famous for taking up the cause of handgun control after he was shot by John Hinckley, Jr. during the attempted assassination of President Ronald Reagan on March 30, 1981. The attack, in which President Reagan and police officer Thomas Delahanty were also shot, left Brady partially paralyzed. The efforts of James Brady and his wife Sarah ultimately led to Congress passing the Brady Handgun Prevention Act in 1994. The law prevented convicted felons, fugitives from justice, unlawful drug users or addicts, those judged mentally defective or committed to a mental institution, illegal aliens, those with dishonorable discharges from the United States military, those who have renounced United States citizenship, those under restraining order, and those convicted of domestic violence misdemeanors from possessing a firearm.

The attempted assassination of President Reagan led to the right blaming the First Amendment and the left blaming the Second Amendment. John Hinckley, Jr. was obsessed with actress Jodie Foster and the movie Taxi Driver. Taxi Driver, a 1976 Martin Scorsese movie, starred Robert De Niro as a depressed New York City cab driver who plans to assassinate a presidential candidate but winds up saving a teenaged prostitute played by Jodie Foster. Hinckley sought to assassinate the President so that he could impress Foster. Events such as this always invariably lead to discussions that movies need to be censored and guns need to be banned. However, the truth of the matter is that neither proposition is true. The attempted assassination of President Reagan should never have occurred. James Brady should never have been so grievously wounded. Furthermore, had the Brady Act been in place in 1980, it would not have prevented the attack.

John Hinckley, Jr. was not a convicted felon, a fugitive, a drug addict, an illegal alien, or a dishonorably discharged former service member. He had not renounced his American citizenship, been under a restraining order, or ever been convicted of domestic abuse. While Hinckley had been treated for depression and was taking medication, he had never been institutionalized. The Röhm RG-14 revolver which Hinckley used had been purchased at a pawn shop, but he could have legally bought it then or now.

What would have prevented the attempted assassination of President Reagan was common sense. On October 9, 1980, Hinckley was arrested in Nashville, Tennessee on weapons charges when he attempted to sneak three guns in his suitcase at Nashville International Airport in order to board a flight to New York City with them. Hinckley was released after paying a fine of $62.50.

Law enforcement and intelligence agencies have never shown much respect for the Fourth Amendment. The NSA actions that have been revealed by Edward Snowden over the last year are more than enough proof of that. Things were not much different in the early 1980s. The NSA had not long before established Minaret, an illegal watchlist of American telegraphs and telephone calls made between 1967 and 1973. Nixon had used this information to help formulate his “enemies list” only a few years prior to the attempt on President Reagan’s life. Similarly, the FBI had engaged in COINTELPRO (Counterintelligence Program) from at least 1956 to 1971. The methods of COINTELPRO went beyond the legal procedures ordinarily employed by the FBI in fighting crime and transformed into the brutal and extralegal methods common among criminal regimes. COINTELPRO infiltrated organizations in order to disrupt and discredit them. It spread disinformation about groups through bogus publications attributed to activist groups, anonymous letters, anonymous phone calls, and set up counterfeit activist organizations run by government agents in order to spread further disinformation. Even more egregiously, COINTELPRO made activists appear to be criminals through illegal surveillance, fabricated evidence, perjured testimony, and the discriminatory and capricious use of the law against its targets. Most alarming was a pattern of break-ins, vandalism, and assaults carried out by the police and FBI in order to terrify and disrupt activist groups. The strange thing is that while federal law enforcement and intelligence agencies had no qualms about violating the Constitution to attack the American people, they were not so inclined to use their powers under the Constitution to defend the people.

Having arrested John Hinckley, Jr. attempting to sneak concealed weapons through an airport onto a flight bound for New York City, local law enforcement informed the FBI, which showed little interest and told Nashville police to handle it locally. The fact that Hinckley was arrested with illegal concealed weapons that he was attempting to take across state lines provided ample probable cause to search his home and dig deeper. Had law enforcement obtained a search warrant for Hinckley’s home, they would have likely learned of his obsession with Jodie Foster. They may have also learned that the purpose of his visit to Nashville was that he was stalking President Jimmy Carter, whom he was planning to assassinate. President Carter had been in Nashville that day, but he left town before Hinckley could get a shot at him.

So often, the government fails in its job of protecting the life, liberty, and property of its citizens. And when it fails, it often reacts by instituting laws and policies which violate the natural rights of individuals. When the FBI failed to protect President Reagan, the Congress violated the Second Amendment natural right to bear arms of citizens by passing the Brady Bill. When multiple federal agencies failed to thwart the 9/11 attacks, Congress passed the Constitution-shredding PATRIOT Act. Future government failures are likely to lead to more laws which violate the Constitution without making the country any safer. Unfortunately, there is little indication that the government or the people have learned any lessons from such unnecessary tragedies.

Anchor Babies Aweigh

A pregnant woman enters the United States illegally and gives birth to her baby within the country. Should this child be granted American citizenship automatically in virtue of being born in the United States? With illegal immigration being such a serious issue at present, the question of "anchor babies" becomes a crucial one.

Leading Republican Senators including Republican Senate leader Mitch McConnell of Kentucky, John McCain and John Kyl of Arizona, Jeff Sessions of Alabama, and Lindsay Graham of South Carolina have challenged birthright citizenship with McConnell stating that he supports holding Congressional hearings on the Fourteenth Amendment right. With the ongoing battle over the Arizona immigration law raging and growing suspicion that President Obama seeks to grant amnesty through executive fiat, the issue of "anchor babies" will surely become more contentious in the coming days. The Department of Homeland Security estimates that there are 10.8 million illegal aliens living in the United States. The Pew Hispanic Center estimates that of 2008, there are 3.8 million illegal aliens living in the United States whose children are United States citizens.

As with all federal legal issues, the starting point must be careful examination of the Constitution. Section 1 of the Fourteenth Amendment states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Jeff Sessions has said "I'm not sure exactly what the drafters of the [Fourteenth] amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen." Senator Sessions' instincts concerning how the analysis of the issue should begin are quite right. But is he right about the intentions of the drafters of the Fourteenth Amendment?

The Fourteenth Amendment was ratified on July 9, 1868 during the Reconstruction Era following the Civil War. In 1857, the infamous Dred Scot decision held that no black of African descent, even a freed slave, could be a citizen of the United States. The Fourteenth Amendment was designed, in part, to prevent states from denying citizenship to freed slaves by validating the Civil Rights Act of 1866, which stated that "All persons born in the United States and not subject to any foreign power, excluding Indians and not taxed, are hereby declared to be citizens of the United States."

The question of what "born or naturalized" in the United States means is clear enough, but to determine the constitutional question concerning "anchor babies," one must determine what "subject to the jurisdiction" of the United States means. "Jurisdiction" does not simply mean subject to the laws of the United States. Any person within the United States is subject to the laws of the United States whether a citizen, a visitor, a foreign diplomat, or an illegal alien. Jurisdiction implies allegiance to the United States, and this, of course will not include visitors, foreign diplomats, or illegal aliens. However, this interpretation of "jurisdiction" and of the broader interpretation of citizenship is grounded in the theory of citizenship that one espouses.

The traditional theory of citizenship, grounded in feudalism, is the British view of birthright citizenship. Sir William Blackstone articulated this view clearly in his Commentaries on the Laws of England where he said that natural allegiance "is due from all men born within the king's dominion immediately upon birth," and therefore, such allegiance "is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance." The competing theory is the theory of consent citizenship. This view is summarized by Thomas Jefferson in his Summary View of the Rights of British America where he argues in favor of a natural right to leave the country where "chance and not choice" has placed a person. This theory is inherent in the Declaration of Independence as revolution is not possible if one holds an allegiance to the mother country by birth. This view was given concrete form in the Expatriation Act of 1868 which recognized the right of expatriation as "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." During this period, the birthright theory of citizenship was generally viewed as being incompatible with the principles of republican government.

This was all changed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was the child of Chinese immigrant parents who were not citizens. He was born in San Francisco sometime between 1868 and 1873. After leaving the United States with his parents to return to China, Wong Kim Ark returned to the United States on his own in 1890 and was granted entry "upon the sole ground that he was a native-born citizen of the United States." However, in 1895 upon returning from a visit to China, he was denied permission to enter the United States. The Collector of Customs who denied him entry argued that Wong Kim Ark, "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China." In a 6-2 decision, the Supreme Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth. The Court's rationale was that the Fourteenth Amendment had to be interpreted in light of English common law, and hence, it officially adopted the birthright theory of citizenship. In his dissent, Justice Melville W. Fuller argued that the United States had rejected this view after independence through recognizing the right of expatriation.

The birthright theory of citizenship, although officially accepted by the Supreme Court, is inconsistent with the republican form of government. It is also inconsistent with the very notion of natural rights. In effect, it means that the American Revolution was illegitimate and that the Founding Fathers still owed allegiance to the English Crown despite its tyranny. The birthright theory of citizenship returns all citizens to the state of being serfs who are nothing but the possessions of the ruling powers. While the debate on the issue will no doubt be couched in terms of irrelevant and misleading fringe issues with charges of racism flying freely, the issue is much larger than simply whether a child born in the United States to illegal aliens ought to be made automatically a citizen. The important issue is the status of each American citizen and whether he or she gives allegiance to the government freely through consent or is simply a serf that is owned by his or her lords.

Legal experts widely believe that birthright citizenship can only be changed by amending the Constitution. As always, this should be viewed as the last possible solution, a "nuclear option" as it were. The first line of attack should be seeking to have the erroneous precedent set in United States v. Wong Kim Ark overturned in court. However, as with most things associated with the immigration issue, politicians are unlikely to do anything that might alienate Hispanic voters. As always, our weak willed leaders like McConnell, McCain, Kyl, Sessions, and Graham are likely to want to sound tough on illegal immigration without actually doing anything about it. They will do what is necessary to maximize the number of votes they can win on both sides of the issue.

The theory of birthright citizenship should be rejected for reasons other than the problem of illegal immigration. It is not even a band aid for that wound anyway. It should be rejected to restore the status of autonomous and consenting citizen to each and every American citizen. The problem of illegal immigration will not be solved by turning innocent children into scapegoats. It will only be solved by dismantling the entitlements of the welfare state, by making legal immigration more streamlined, and by severely penalizing the Economic Royalists on the right and left who wish to employ illegal aliens at virtual slave wages in order to save a few dollars while driving down American wages as a result.