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Op-ed

Horowitz: President Trump should read Black Lives Matter the Riot Act – and the Insurrection Act

'... the constituted authorities of that State are unable, fail, or refuse to protect that right ...'

Christopher Dilts/Bloomberg/Getty Images


The hallmark of a first-world country is not that violence never occurs within its borders, but that once it does, the damage is mitigated immediately and the perpetrators are punished and future criminals deterred. Yet here we are, over 80 days into this national insurrection by terrorist groups like Back Lives Matter and Antifa, and there is no end in sight. Trump is president today, not just after November 4. It's time for him to use his inherent power to put down the insurrection.

The fact that crowds can celebrate about shooting a Trump supporter in cold blood, rampage through Oakland and chant "death to America," and burn down Kenosha until it looks like Beirut demonstrates that we are no longer dealing with belligerent protests or even rioting, but with deadly terrorism. Our tactics – both at the state and federal levels – must comport with this reality.

On the state level, the notion that somehow police must stand back and allow "protests" to fester until they get out of hand and uncontrollable is absurd. When there is clear and present danger that gatherings lead to violence, they can be dispersed. As the Supreme Court said in Cantwell v. Connecticut (1940), "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious." Thus, any discussion of "right to protest" is out the window, especially after an 80-day track record and trail of devastation in its wake.

Then there is the federal role. The notion that the Constitution and statute somehow keep the federal government neutral or removed from an organized insurrection is misguided and dangerous. From the early days of the Whiskey Rebellion through the Civil War-era insurrections, the federal government has been at the forefront of restoring peace when states are either inherently incapable or unwilling to protect civil liberties and punish violent forces, especially when they cross state lines and are national in scope.

Many commentators continue to make the mistake of believing that the president needs permission of a governor or mayor to send in federal forces to quell a rebellion. But the updates to the Insurrection Act in 1871 were specifically designed to empower the president to put down insurrection precisely in a scenario where state governments are turning a blind eye (or encouraging) the uprisings.

The original Insurrection Act of 1807, first passed by Congress in the form of the Militia Act of 1792, gave the president permission to send in the military to a state "upon the request of its legislature or of its governor if the legislature cannot be convened." However, during the post-Civil War era, when states in the South turned a blind eye to KKK violence toward black people, Congress saw a need to give the president unilateral authority, a power that is codified in law to this very day. And for good reason.

The Insurrection Act of 1871 reflects the spirit of the 14th Amendment, which was ratified just a few years earlier. The entire point of the 14th Amendment was to empower the federal government to enforce fundamental rights against states precisely when state governments where involved in those violations. In those days, Southern states allowed white terrorists to terrorize black people, punished black people for self-defense, and did not pursue justice against white perpetrators. The 1871 act pushed by President Ulysses Grant was, in a sense, the implementing legislation of the 14th Amendment's Privileges and Immunities Clause, which gave the federal government enforcement power over states that violate those natural rights.

According to the Washington Post, "[President] Grant's target was the violent Ku Klux Klan, which was, according to the Coakley book, inciting 'its members to commit crimes, including murder, against Republicans and blacks' and rarely facing prosecution."

Sound familiar? Reverse the races and that is what is happening today. Blue states and cities are openly greenlighting Antifa and BLM to destroy public and private property, randomly attack white people and/or Trump supporters, take over roads and stop, threaten, and attack motorists, and rarely face prosecution, while those who defend themselves are charged with murder.

The 1871 act was created for exactly this sort of uprising fueled by racial discrimination. Not only does the law, codified as amended in 10 U.S. Code §253, §332-333, not require state permission for the president to dispatch armed forces, it specifically charges him to do so when "the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws" [emphasis added].

Per §332, the threshold for unilaterally calling in the military, even against the wishes of the state government, is when "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State."

That threshold is clearly evident, nearly three months into this uncontrolled mayhem in so many cities.

The president is also vested with the power to "take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" in the aforementioned scenario.

The time has come for the president to actually suppress the insurrection. What happened in Portland when DHS dispatched agents was a disgrace. They were dispatched in a very defensive posture to defend a federal building and wound up being blinded with lasers. This is a terrorist group they are dealing with, and it requires appropriate force that stops the violence. They must go on offense, seek out and confront the perpetrators, and shoot to kill when the rebels are using deadly force.

Concomitantly, the Department of Justice must harness every existing statute – from anti-terrorism laws (18 U.S. Code § 2383) to cross-state racketeering laws (28 U.S. Code §1952) – to prosecute all of the criminals being released or ignored by state and local prosecutors. They must also go after local DAs who are violating civil rights and charging victims of the mob with crimes for legitimately defending their lives. It's now reached the point that in New Jersey, civilians will be charged with crimes for calling 911 when they feel threatened if the subject of the call is black and the call is deemed false by authorities. No such charge will be made if the races are reversed.

As the Washington Post observes regarding the implementation of the 1871 law: "After learning that the KKK was still thriving in several South Carolina counties, he [Grant] organized more than 1,000 soldiers to round up several hundred Klansmen. 'Scores' of suspects were arrested, many of them interrogated for several weeks without an indictment. By Jan. 1, 1872, the Army had detained more than 600 men, and most of them were tried and convicted in federal court."

Trump has the facts, the law, and the American people on his side. Now is the time to read BLM the Riot Act. Now is the time to defend America, not after he wins a second term. As Reagan said, "If not us, who? And if not now, when?"

One last thing…
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