Late night comedian Jimmy Kimmel began his first show after Sunday’s mass shooting in Las Vegas with a sober monologue mourning the horror in his hometown. Kimmel was visibly shaken by the attack, which as of this writing has left 59 dead and more than 500 injured. Only the most cynical could cast his palpable grief as mere service to his political agenda, but that does not excuse the politics from scrutiny — and the result is troubling.
At this point you may be surprised to learn this is not a column about the Second Amendment and gun policy. It’s more about Fourth Amendment protections against search and seizure and Fifth Amendment protection from self-incrimination — and the contrast in how we respond to proposals affecting the territory of each. To see what I mean, let’s look at the meat of Kimmel’s message:
“When someone with a beard attacks us, we tap phones, we invoke travel bans, we build walls. We take every possible precaution to make sure it doesn’t happen again. But when an American buys a gun and kills other Americans, then there’s nothing we can do about that [because] the Second Amendment, I guess.”
In one sense, of course, he’s right. Our government’s response to Muslim terrorism is not the same as its response to attacks like the one in Vegas, in which the shooter was a white guy with, so far, no apparent political or religious motive.
But here’s the thing: Whatever your views on gun control, what Washington does “when someone with a beard attacks us” is not the model to follow when the attacker is a clean-cut white guy. The war on terror is not the model to follow in any situation, because it’s unconstitutional, ineffective and wrong.
When “we tap phones,” that often means our government engages in warrantless mass surveillance, monitoring the private communications of millions of innocent people in violation of the Fourth and Fifth Amendments. Since 9/11, Washington has claimed expansive new powers to monitor our personal lives and gut digital privacy in the name of safety. And contra Kimmel’s line about “mak[ing] sure it doesn’t happen again,” none of this has managed to produce any significant counter-terrorism results.
When we “invoke travel bans,” the picture isn’t any prettier, as Shikha Dalmia detailed at Reason. Excluding people from the targeted countries “won’t make America for safer — for the simple reason that the people who the ban excludes didn’t pose a big threat to begin with,” she writes, because “migrants from the banned countries have killed precisely zero Americans in terrorist attacks on U.S. soil between 1975 and 2015.” Whatever the impetus for this travel ban, it isn’t about taking “every possible precaution” against terror.
And then there’s the wall, an expensive boondoggle that, if it is ever built, will involve stealing a lot of private property from Texans using eminent domain to put up a barrier on land naturally inhospitable to border crossings because the more hospitable land is already walled off. The wall as President Trump has proposed it would require hiring 10,000 new federal employees, cost hundreds of billions of dollars, and require all U.S. employers to register with a national employment database ripe for federal misuse. Once again, there’s no reason to believe a wall is an effective protection against terror, as drug traffickers have already demonstrated there are all sorts of creative options for getting around border barriers.
Kimmel seems to understand the manifold problems with Washington’s responses to attacks committed by “someone with a beard.” He has been critical of the NSA, the travel ban, and Trump’s wall proposal. “To Kimmel,” Charles C.W. Cooke writes at National Review, “these policies serve as solid and mockworthy examples of the sort of ill-advised, knee-jerk reactions that we tend to see in the aftermath of tragedy” — and Kimmel is exactly right on that score.
But a call to action in the wake of Vegas comes with risks: The policy changes Kimmel wants may be different, but the impulse to hastily implement what may well turn out to be unjust and ill-considered laws in the immediate aftermath of tragedy is the same.
The lesson we ought to be learning from the way other rights have been trampled in the name of safety is not “go and do likewise.” It’s rather, “apply a little of the enthusiasm on both sides of the gun control debate to privacy and due process. Care about the Fourth and Fifth Amendments like you care about the Second.”