TRADING LIBERTY FOR SECURITY
Other articles on this webpage discuss the actual magnitude of various threats, including those posed by firearms. One concept currently in vogue is to permit the seizure of weapons from someone who may pose a threat through the issuance of Emergency Protective Orders or EPOs. Such orders would be issued ex parte, meaning they would be based on the affidavit or testimony of the person who feels threatened without any cross-examination and with no opportunity for the party impacted by the Order to be heard and to present his or her side of the case. A full hearing at which the target of the Order could contest its propriety eventually would be held – but only after entry of the Order and seizure of property. That is NOT the way things are supposed to work under our Constitution.
Would we permit the seizure of an elderly driver’s license, keys and vehicle based solely on the uncontroverted petition of a relative claiming that the person was a danger to himself and anyone else on the roadways and should not be driving? Absolutely not! Before any such invasion of personal liberty the person is entitled to due process and an opportunity to be heard. The Complainant may be a recently disinherited relative seeking revenge – just as a claim of domestic violence may be the frivolous assertions of a jilted lover. Those possibilities – and the potential for abuse – are why due process exists.
Why should I not be entitled to a temporary order and seizure of any firearms, knives, baseball bats and any other dangerous instrumentalities possessed by a belligerent neighbor based solely upon my claim that he or she presents a threat? For that matter, why not lock him or her up until it is established in a “promptly” scheduled hearing that no such danger exists? Why not the same for an erratic and hostile coworker or the driver in the carpool lane at school that exhibits signs of road rage?
Once we accept in principal the invasion of liberty without due process, the possibilities to make us feel safe are truly infinite. “The Scoutmaster has taken more interest in my son’s advancement than I think he should, so let’s castrate him to be on the safe side.”
Tolerating some insecurity is an essential cost of living in a free society, and Liberty once sacrificed is rarely regained.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” Benjamin Franklin
While the Franklin quote has achieved widespread acceptance and meaning beyond its original context, the premise being expressed was well recognized by the Founding Fathers. Thomas Jefferson also wrote that he “would rather be exposed to the inconveniencies attending too much liberty than those attending too small a degree of it.”
What happens when we decide that security trumps liberty?
Executive Order No. 9066
Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104);
Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.
I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.
I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.
This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.
Franklin D. Roosevelt
The White House,
February 19, 1942.
[F.R. Doc. 42–1563; Filed, February 21, 1942; 12:51 p.m.]
Korematsu v. U.S.
Full Text Opinion available at:
Facts and Case Summary
Roughly 10 weeks after the U.S. entered World War II, President Franklin D. Roosevelt on February 19, 1942 signed Executive Order 9066. That order authorized the Secretary of War and the armed forces to remove people of Japanese ancestry from what they designated as military areas and surrounding communities in the United States. Those areas were legally off limits to Japanese aliens and Japanese-American citizens.
The order resulted in the mass transportation and relocation of more than 120,000 Japanese people to government detention camps that were set up and occupied in about 14 weeks. Most of those who were relocated lived on the West Coast and two-thirds of them were American citizens. Pursuant to the Executive Order, the order, the military transported them to some 26 sites in seven western states, including remote locations in Washington, Idaho, Utah, and Arizona. Businesses and other property belonging to those who were relocated were abandoned or sold at prices far below the market.
Fred Korematsu, 23, was a Japanese-American citizen who did not comply with the order to leave his home and job, despite the fact that his parents had abandoned their home and their flower-nursery business in preparation for reporting to a camp. Korematsu had plastic surgery on his eyes to alter his appearance; changed his name to Clyde Sarah; and claimed that he was of Spanish and Hawaiian descent.
On May 30, 1942, about six months after the Japanese attack on Pearl Harbor, the FBI arrested Korematsu for failure to report to a relocation center. Following his arrest, and while waiting in jail, Korematsu agreed to allow the American Civil Liberties Union to represent him and make his case a test case challenging the constitutionality of the government’s action. Korematsu was tried in federal court in San Francisco, convicted of violating military orders, given five years’ probation, and sent to an Assembly Center in San Bruno, CA.
Korematsu’s attorneys appealed the trial court’s decision to the U.S. Court of Appeals, which agreed with the trial court that he had violated military orders. Korematsu’s attorneys then asked the Supreme Court of the United States to hear his case. On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a “military necessity” and not based on race.
Writing for the majority, Justice Hugo Black held that while "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and subject to "the most rigid scrutiny," not all such restrictions are inherently unconstitutional. "Pressing public necessity," he wrote, "may sometimes justify the existence of such restrictions; racial antagonism never can."
Three Justices dissented with Justice Robert Jackson writing: "Korematsu ... has been convicted of an act not commonly thought a crime," he wrote. "It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived." The nation's wartime security concerns, he contended, were not adequate to strip Korematsu and the other internees of their constitutionally protected civil rights.
He called the exclusion order "the legalization of racism” that violated the Equal Protection Clause of the Fourteenth Amendment and compared the exclusion order to the “abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. He concluded that the exclusion order violated the Fourteenth Amendment by “fall[ing] into the ugly abyss of racism."
Reopening the Case
In 1983, a pro bono legal team with new evidence re-opened the 40-year-old case in a federal district court on the basis of government misconduct. They showed that the government’s legal team had intentionally suppressed or destroyed evidence from government intelligence agencies reporting that Japanese Americans posed no military threat to the U.S. The official reports, including those from the FBI under J. Edgar Hoover, had not been presented during the earlier trial. On November 10, 1983, a federal judge overturned Korematsu’s conviction in the same San Francisco courthouse where he had been convicted years earlier.
While the district court ruling cleared Korematsu’s name, the Supreme Court decision has never been explicitly overruled.
In 1998, Fred Korematsu was awarded the Presidential Medal of Freedom by President Bill Clinton.
Excerpts from the Majority Opinion
Mr. Justice Black delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a "Military Area," contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed. Reg. 1407. That order, issued after we were at war with Japan, declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities . . . ."
One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a "protection against espionage and against sabotage." In Hirabayashi v. United States, we sustained a conviction obtained for violation of the curfew order . . . . We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.
. . . Here, as in the Hirabayashi case, ". . . we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it."
Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.
We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.
Excerpts from the Dissent
Mr. Justice Murphy, dissenting:
This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power" and falls into the ugly abyss of racism.
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts . . .
At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support . . .
. . . Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an "immediate, imminent, and impending" public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.
. . . The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices — the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.
. . . No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.
No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry . . .
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.
Most of us now regard the Korematsu case as wrongly decided and with some justification. Yet the same rationale used by the Court is echoed in the arguments now advanced for application to all law-abiding firearm owners by those who seek to enhance security by limiting the right to bear arms. Quoting and then paraphrasing (in RED) key portions of the Korematsu decision will illustrate the point.
"[W]e cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained.”
“We cannot reject as unfounded the judgment of Congress that there [are unstable, and violent] members of [the firearm owning] population, whose number and strength [cannot] be precisely and quickly ascertained.”
“We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it."
“We cannot say that the Government did not have ground for believing that in a critical hour such persons could not readily be isolated [from peaceful and law abiding gun owners] and separately dealt with, and [that despite declining for decades, the threat of homicides and mass shootings] constituted a menace to [the] safety [of society], which demanded that prompt and adequate measures be taken to guard against it."
“Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country.”
“Like curfew, [the ex parte seizure of firearms without due process] was deemed necessary because of the presence of an unascertained number of [dangerous] members of the [firearm owning community], most of whom we have no doubt were [law abiding and presented no threat to] this country.”
“It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group.”
“It was because we could not reject the finding of the [government] that it was impossible to [distinguish between those firearm owners that presented a danger and those that did not] that we sustained the validity of the [seizure] order as applying to the whole group.”
“In the instant case, temporary exclusion of the entire group was rested by the military on the same ground.”
“In the instant case, [the ex parte seizure of firearms from] the entire group was rested by the [government] on the same ground.”
“The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.”
“The judgment that [ex parte seizure from] the whole group was for the same reason a [national] imperative answers the contention that the [seizure] was in the nature of group punishment based on antagonism to those [who chose to exercise their constitutional right to bear arms].”
“That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion.”
“That there were members of the group who [in fact presented a danger to society] has been confirmed by [the constant reporting of homicides and mass shootings]."
Korematsu v U.S., 323 U.S. 214 (1944)
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Author Note: Like many young men growing up in the rural South, the author owned a .22 caliber rifle and a shotgun, both of which were used for hunting and sport shooting. He no longer hunts and has passed the .22 rifle on to his son, but he still owns firearms for recreation and personal defense. He is not a member of the NRA and has no vested interest in the gun debate, but is tired of hearing heated arguments presented on both sides of the issue without bothering to learn the facts.