This week we have the pleasure to bring you an exclusive interview with David Kopel, the author of "No More Wacos: What Is Wrong with Federal Law Enforcement and How to Fix It". He is the research director for the Independent Institute, a non-profit organization that is working to ensure American freedoms.

For more information on the institute check out their site at:

http://i2i.org/index.htm

The Waco incident is burned into the collective memory of America. On the now infamous 19th of April the FBI and the BATF attacked a religious compound called Mount Carmel that was held by David Koresh and the Branch Dividians. There is much dispute over whether the attack was justified or if federal law enforcement agencies exceeded their power. The book "No More Wacos" addresses these questions and many others. Our interview with Mr. Kopel touches on Waco, Randy Weaver, the Second Amendment and other topics of interest:.

CONSERVATIVE BOOKSTORE: What first sparked your interest in abuses by federal law enforcement?

DAVE KOPEL: I'm a long-time ACLU and NRA member, so I take the Constitution pretty seriously. As the drug war escalated in the late 1980s and early 1990s, it became apparent that there was a serious problem of gratuitously violent law enforcement. The Waco incident itself was the main catalyst. I never thought I would see anything like that happen in the modern United States.

CB: The NRA and the ACLU in many ways represent opposite ends of the political spectrum. How do square your membership in these two organizations?

DAVE KOPEL: When the NRA and the ACLU stray from their Bill of Rights foundations, they _are_ at opposite ends of the spectrum. The ACLU pushes leftist cultural causes, while the NRA runs ads bashing people for voting against the flag-burning amendment. But when the NRA and the ACLU are true to their better selves, the two groups have exactly the same political stance: in defense of our magnificent Constitution. The Founding Fathers saw the Bill of Rights as a single splendid tapestry, with each right reinforcing and protecting the rest. For example, the Tenth Amendment guarantee of state autonomy reduces the ability of the federal government to conscript local law enforcement into enforcing federal laws which violate the Second and Fourth Amendments--like the Brady Act.

The idea that there are some constitutional rights for liberals (speech, privacy, no religious establishment) and others for conservatives (property, guns, state autonomy) is a late 20th-century cultural conceit. It's one of the gravest mutual errors of late 20th century liberals _and_ conservatives.

Happily, plenty of folks from all sides of the political spectrum are coming to recognize their common interest in a Constitution that is strong all around. Witness, for example, the common work of groups like the ACLU, NRA, Gun Owners of America, Frontiers of Freedom Foundation, Law Enforcement Alliance of America, and National Association of Criminal Defense Lawyers since 1995 against expanded wiretapping and use of the military in law enforcement. As my former boss, Colorado Attorney General Duane Woodard put, it, "There's not a liberal Constitution and a conservative Constitution."

CB: Is it fair to say then that you advocate a strict interpretation of the constitution?

DAVE KOPEL: I remember a Herblock cartoon from about 1974: a man is putting up a sign "Impeach Nixon." He tells an on-lookers "Mister, I'm a strict constructionist."

Strict constructionism was a conservative slogan in the 1960s, signifying opposition to what the Warren Court was doing. Most of this opposition was misguided, since the most controversial decisions (Miranda, Mapp v. Ohio, etc.) were simply a means of giving force to constitutional provisions (no coerced confessions, no warrantless searches) that had, in practice, been nullified by police misconduct.

I'd call myself a strict constructionist in the sense of believing that the Constitution ought to be applied as written: the power to "regulate commerce...among the several states" ought to be used for buying and selling (commerce) that crosses state boundaries. The guarantee that the right to arms "shall not be infringed" means that the right should not be infringed, not that the right can be infringed by any gun control that a judge finds "reasonable" or "rational."

Interestingly, this week's New Republic contains an essay by Columbia Law Professor George Fletcher. He begins by acknowledging that much of what the federal government does today (for example, the Brady Act) violates the original Constitution. But he says that's okay, because the Civil War Amendments (13, 14, 15) created a new Constitution, with an expanded role for the federal government. This is true, but the only expansion contemplated by those amendments is federal power to protect civil rights and civil liberties from infringement by state governments. Nothing in Amendments 13-15 diminishes the Bill of Rights as protection against the federal government. Indeed, to assert that these pro-liberty amendments _diminish_ our protection from federal violations of the Bill of Rights and the rest of the Constitution is Orwellian. But...it is progress when a major law professor writing in a major magazine acknowledges that much federal activity is constitutionally illegitimate, at least under the original Constitution, which most Americans consider to still be the law.

CB: You have written or edited several works on gun control, including: "Guns: Who Should Have Them?" and "The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Control of Other Democracies?" Our discussion and these books bear on the second amendment. What were the intentions of the framers of the Constitution in including this amendment and what does it mean to us today?

DAVE KOPEL: The framers intended to guarantee (not create--they believed that God creates rights) a fundamental human right to possess arms (including firearms and edged weapons) for defensive purposes. Defensive purposes included individual defense against lone criminals, and collective defense against criminal governments (either foreign invaders or domestic tyrants). Like much of the rest of the Constitution, the Second Amendment is based on the principle of separation of power. It is dangerous for one entity--including the federal government--to have a monopoly on information (First Amendment) or political power (Tenth Amendment) or physical force (Second Amendment). Because the Constitution is based on insights about human nature and the corrupting nature of power, it is just as relevant today as it was in 1797.

CB: Why is the Waco incident relevant to the average Joe four years after the event?

DAVE KOPEL: As we detail in the book, there are large numbers of very normal, law-abiding American citizens who have been injured, terrorized, killed, or robbed (via forfeiture laws) by abusive federal law enforcement. Americans who are concerned that their government obey the law, and that it adhere to the norms of a constitutional republic, rather than a banana republic, need to be concerned not just about Waco, but about the entire spectrum of federal lawlessness. Waco is just the sensational tip of a very large iceberg.

CB: What do you think has caused this sudden rise in abuse of power by law enforcement agencies?

DAVE KOPEL: "No More Wacos" addresses this issue in great detail. Some of the key causes:

a. Increasing federalization of law enforcement results in more law enforcement being done by persons with little accountability.

b. The "drug war" has created a climate--similar to McCarthyism and the Salem Witch Trials--in which repressive, dangerous law enforcement methods can be advanced in an atmosphere of panic.

c. The rhetoric of "drug war" and "war on crime" has a long-term effect on law enforcement and popular consciousness.

d. Conservatives (now joined by pseudo-liberals like Clinton) have browbeat most of the judiciary into being afraid to fully enforce the Constitution. Judicial activism is wrong when undertaken in the name of things that aren't in the Constitution (like gay rights or abortion); but there is far too little judicial activism in defense of the things that really are in the Constitution--like the Fourth Amendment's ban on searches without probable cause and a warrant.

e. Our triumph in the cold war has left the military too large for its current foreign policy missions, and thus created an institutional need to find new "enemies"--even if those Americans happen to be engaged in nothing more than activities which weren't even considered a crime for most of our nation's history.

f. Three consecutive Presidents--Reagan, Bush, and Clinton--have been utterly derelict in their constitutional duty to see that the laws are faithfully executed--which means in part to make sure that federal law enforcement obeys the law.

g. The mainstream press has generally failed its responsibility to report on abuses, and inform the public. This is partly because the mainstream press and the Washington establishment--despite all the sniping back and forth--are part of a single political class whose power derives from Washington. Most of the media is blind to government abuses of people the media have nothing in common with--like Sammy and Vicki Weaver. If the media had reported that story properly

when it happened, Waco could have been prevented.

CB: The Boundary County Prosecutor in Idaho has just filed charges against the sniper (Lon Horiuchi) who shot Randy Weaver's wife at Ruby Ridge. Randy Weaver's friend, Kevin Harris, has also been charged for killing a deputy marshal in the shoot out at Ruby Ridge. Harris had been cleared of federal charges and Horiuchi was not even charged in the first place by the feds. Do you think both should have been cleared on the federal level and should they now be tried on the state level? Do you think the media is now properly reporting the news in this case?

DAVE KOPEL: Paul and I sent out an op-ed a couple days ago on the Weaver case. We argued that the federal Dept.of Justice was wrong not to prosecute Horiuchi. The Idaho prosecutor's theory of the case (reckless endangerment for taking a shot near where Horiuchi thought a child's head was, resulting in the death of Vicki Weaver under a manslaughter theory) is exactly what we argued for. But we also argued that Larry Potts, the FBI official in charge of Ruby Ridge, should be prosecuted. Although it can't be proven that he approved "shoot to kill" order, he did approve "license to kill" orders which violated the criminal law of Idaho, and the United States Constitution. So Potts, and also perhaps several people in the chain of command from Potts to Horiuchi, ought to be prosecuted.

Kevin Harris was charged with murder, and acquitted. Unless the prosecutor has some major new evidence, it's very difficult to see why he is being charged, unless the prosecutor feels a need to balance the prosecution of a federal murderer with the prosecution of a victim.

The Idaho prosecution of Harris highlights a huge loophole that the courts have created (starting in the 1930s) in the Double Jeopardy Clause: you can be prosecuted twice, once by the feds, and once by the state, as long as there is one different element in the two charges (for example, in the federal prosecution, the US Attorney had to prove that Harris had killed a federal employee on duty, while the Idaho prosecutor does not need to prove this fact; the federal prosecution was for a law against killing federal employees, while the Idaho prosecution is for killing anybody).

While courts may ignore the double jeopardy clause, legislatures don't have to. Every state, starting with Idaho, ought to enact a law banning successive prosecutions for essentially the same conduct.

CB: Thank you for allowing the Conservative Bookstore to interview you and for your candid responses to our questions. Are there any final thoughts with which you would like to leave us?

DAVE KOPEL: Conservatives are right to recognize that the public wants strong measures against crime. Conservatives need to take the lead in making sure that cracking down on crime does not result in cracking down on the Constitution. When law enforcement agencies are allowed to violate the Constitution and other laws, then everyone, including law-abiding citizens, is placed in grave danger.

To Order "No More Wacos" please click on the line below:

http://www.amazon.com/exec/obidos/ISBN=055306682X/theconservativebA/

To order other books by David Kopel, jump to our pick of the week page:

http://www.conservativebookstore.com/Pickweek.html

Next week we plan to discuss private property and public freedom.

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