During the first 2016 presidential debate a couple of weeks ago, Hillary Clinton chastised Donald Trump on the unconstitutionality of so-called “stop-and-frisk” policies of urban policing (specifically in New York City). And credit where it is due, she is right – warrantless, unprompted searches conducted upon pedestrians simply because they are in “public” clearly violates the Fourth Amendment and data suggests that New York’s particular implementation of the “Terry Stop” likely resulted in sex-, age-, and race-related profiling and discrimination.
Further, such demonstrable discrimination certainly cannot square with the Fourteenth Amendment‘s Equal Protection Clause, particularly when the stops did not even demonstrate empirical efficacy despite law enforcement and pundit claims toward necessity and effectiveness. Despite police stopping and searching hundreds of thousands of such targeted individuals, nearly 90% of these citizens and residents turned out to be completely innocent. These outcomes simply fail to support the State’s assertions of observable probable cause or reasonable suspicion on their face; rather, they buttress the de facto reality that such searches more accurately qualify as general warrants, something the Fourth Amendment’s warrant and particularity requirements were specifically designed to prohibit and protect against.
What Clinton and her Democrat (and other) supporters apparently fail to grasp (or at least acknowledge), however, is that proposed so-called “no fly, no buy” policy similarly fails to meet constitutional scrutiny. How can someone placed upon a secret list – one which is presumably supported by secretly gathered and compiled evidence – be legitimately afforded due process as the Fifth Amendment explicitly provides? How can someone be informed of the nature and cause of the accusation(s) against them which supposedly justifies these infringements, when such lists are not available for inspection or scrutiny as the Sixth Amendment expressly provides? How can someone challenge the State’s evidence, as the Sixth Amendment also allows, when a charge(s) is often never forthcoming from such a list? Can Clinton’s supporters honestly claim that “no fly, no buy” will not racially, religiously, or politically profile in similar fashion as “stop-and-frisk” unconstitutionally does?
If someone is too dangerous to fly on an airplane and/or purchase a firearm, then they are clearly too dangerous to be on the street, right? After all, why would airline passengers rate special protections over, say customers in a mall? Why are alleged potential victims of firearms violence due greater sensitivity than potential victims of vehicle-, explosives-, and/or knife-related violence (see Europe of late)? If the government has access to enough evidence to properly determine someone is too dangerous to fly on an airplane and/or purchase a firearm, then the government is in possession of sufficient evidence to charge that person with a crime. If the government does not possess enough evidence to support an indictment, then it obviously does not possess enough evidence to credibly claim someone “will” or “might” do “something” “dangerous” “someday.”
In the debate, Trump posited that the greatest thing needed in today’s urban centers of violence is law and order. That position is debatable, but it is extremely difficult to square the State’s violation of the Supreme Law of the Land with any legitimate concept of law and order. While there can be order in such an environment, for better or worse, there can be no law when the government acts outside of it – there can only be tyranny.
On their respective substantive merits, precious few differences exist between these two policies, insofar as constitutional legality is concerned. Right or wrong, if you endorse one, consistency demands you endorse both and likewise the same for rejecting one or the other.