A Stitch in Haste

(Please see update below.)

By now you have likely seen the utterly outrageous reports that the District of Columbia, most recently known for holding the Second Amendment in absolute contempt, has now upgraded — or downgraded, depending on your nomenclature — to likewise trampling other parts of the Bill of Rights:

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show.

Some hasty stitches:

–The right* of otherwise law-abiding citizens to be in and move through public spaces, with or without identification and with or without a “legitimate reason,” is well-settled law. See Papachristou v. Jacksonville, 405 U.S. 156 (1972), Brown v. Texas, 443 U. S. 47 (1979), and especially Hiibel v. Nevada 542 U.S. 177 (2004), (Breyer, J., dissenting). (*I would be just as happy to use the term “privilege and immunity,” but that doesn’t get you very far, no pun intended.)

–The requirement that one’s purpose be “legitimate” is of course unconstitutionally vague. “Legitimate” — to whom? By what standard? Is walking one’s dog a “legitimate reason”? Proselytizing on behalf of the Mormon faith? Collecting bottles for the nickel deposits? Taking your kids to a blighted area to “see how the other half lives”?

–Suppose I show up at such a checkpoint and simply declare: My “legitimate reason” is my desire to exercise my First Amendment right not to need a legitimate reason. Do I win because I have a legitimate reason or because I don’t need one?

–Speaking of unconstitutional vagueness, what will the criteria be for determining which neighborhoods deserve this Checkpoint Charlie nightmare? Will the designations be subject to race-based or other discrimination challenges, much like our statutory and judicial approach to fighting gerrymandering or busing?

–Going back to the Second Amendment and the pending decision in District v. Heller: Most libertarians wasted little time in debunking the hopelessly silly “Congress has plenary Article I authority over the District” canard by asking whether Congress could, hypothetically, repeal the First Amendment within the borders of the District. Who knew that the District would actually consider trying it? See also the (just as hopelessly silly) claim that the federal government can authorize, without constitutional amendment, full voting representation for the District in Congress.

(Via Hit & Run.)

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UPDATE: Subsequent media accounts now clarify that the checkpoints will be vehicular, not pedestrian. That changes neither the outrageousness nor the unconstitutionality of the program — only the precedents with which to analyze the proposal. Indianapolis v. Edmond, 531 U.S. 32 (2000) is both clear and directly on point: Vehicle checkpoints, without individualized suspicion and established merely for “general crime control purposes,” violate the Fourth Amendment. Accord, U.S. v. Lidster, 540 U.S. 419 (2004). My void-for-vagueness analysis is also still entirely applicable here, as would be any requirement that passengers in the vehicle produce ID (the driver would of course be required to produce a valid drivers license).