Says, "One thing needed now is a serious...

KURT SCHMOKE

October 11, 1993|By THEO LIPPMAN JR.

KURT SCHMOKE says, "One thing needed now is a serious national debate about the Constitution and crime -- perhaps one final and unambiguous test of the reach of the Second Amendment and its provisions about the right to bear arms. . . . [and whether there are] too many procedural safeguards for criminals."

Let's debate!

First, he's right, the Second Amendment's gotta go. Also the Third. It says "no soldier shall, in time of peace, be quartered in any home without the consent of the owner." The New York Times and I agree that the violence in federal housing projects calls for a federal response. The best response is to send in the Marines -- quartered in the projects if necessary.

The Fourth Amendment forbids "unreasonable searches and seizures." The courts routinely throw out evidence -- proof -- of the worst sort of crime, often for technical violations of this amendment. Get rid of it and a lot more criminals would be behind bars.

The Fifth, of course, must go. That's the "due process of law" amendment. Many judges interpret it to mean not just that a criminal defendant get a fair trial but a perfect trial. This amendment also says, "no person shall be . . . compelled to to be a witness against himself." That has been interpreted to mean that even intelligent, clever but non-coercive police procedures that produce confessions in the station house can't be used at trials. Lots of Fifth Amendment meanies walking the streets.

Sixth Amendment -- NOT! It guarantees criminal defendants "assistance of counsel" at taxpayers' expense. Nationwide, 80 percent of all criminal defendants are now represented by publicly paid lawyers. We may not have socialized medicine in this country but we sure have socialized criminal law.

The Eighth Amendment puts a lot of dangerous guys back in your neighborhood. It says "excessive bail may not be required . . . nor cruel and unusual punishments inflicted." Judges have construed the latter to mean that prison populations must be kept lower -- which means releasing thugs early or not imprisoning them in the first place. Gotta go.

This all may seem extreme, but in fact none of those Bill of Rights amendments applied to state governments until after the Fourteenth Amendment was ratified in 1868. Some of them were only applied to the states in the past 30 or 40 years.

So. How to proceed? Repeal the Bill of Rights? Get the SupremCourt to over-rule the decisions applying it to the states? Repeal the Fourteenth Amendment? I leave that to lawyers and legal scholars, neither of which I am. I'm just a serious national debater.

* * *

Lawyer and legal historian Willis Case Rowe of Catonsville wrote that I had "no idea even of what the word 'law' means to lawyers." I misquoted him in this column as saying ". . . of even . . . ," and I mis-wrote his first name as "William." I apologize.

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