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Andrew P. Napolitano

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Can the Government Cut Off Personal Liberty?


Last week, the Governor of New Mexico confronted what she claimed was a health crisis, and her solution was to deny law-abiding folks the right to bear arms. The health crisis she identified was an uptick in the murder rate in the city of Albuquerque. And her solution was to turn off the personal liberty of all persons there. She purported to do this by issuing an executive decree that prescribed the penalties for doing what was perfectly lawful the day before the decree -- openly carrying a registered handgun.

She did this notwithstanding the expressly guaranteed right in the U.S. Constitution to keep and bear arms, notwithstanding the Supreme Court's most recent interpretations of the constitutional guarantee, notwithstanding the natural right to self-defense and notwithstanding comparable guarantees in the New Mexico Constitution and laws.

Stated differently, the Governor took the law into her own hands and defied and perverted it. Can this possibly be legal? In a word: No.

Here is the backstory.

In 1939, the Supreme Court heard an appeal in U.S. v. Miller, a case in which the defendant had been convicted of carrying a rifle across state lines that was too short, according to federal statutes. The statutes were based on the power of Congress to regulate commerce between the states. Even though Miller was not engaged in commercial activity, and even though no lawyer appeared or presented an argument for him in the Supreme Court, the court upheld his conviction.
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What Did the FBI Know?


The New York Times recently reported that the FBI had an undercover informant amid the protestors that entered the US Capitol on Jan. 6 who had related to them his knowledge of the demonstrators’ plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBI’s behavior. The feds have not revealed the existence or identity of this informant; rather, the Times’ reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation — or “flip” a person who is already in the group — and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the government’s version of events?
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