It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [140]
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Next among un-punishable offenses is the category of annoyance, boredom, and frustration. To be fair, the mental states provoked by loud, boisterous, and incessantly talking seatmates or the two women with high-pitched, nasally voices can be almost as painful and difficult to tolerate as the examples from other categories. But nonetheless, there is no natural right to be free from screeching voices.
And finally, fear, resentment, humiliation, and anger can be the reasonable reaction to the hand grenade–waving, rubber knife–brandishing, swastika–wearing teenagers who deliberately seek to cause these unwanted emotions. In a way, these behaviors are the most offensive and disturbing of the categories. This type of conduct induces sentiments that are sometimes the most difficult to handle and control, particularly to those who are part of the targeted group—on Feinberg’s bus in particular, Catholics, blacks, Jews, and Hispanics. Yet again, it is clear that these thoughts cannot be criminalized, so why could simply making others aware that they possess those thoughts be any different, and more deserving of punishment? No thoughts can morally be criminalized. After all, a member of any ethnic or religious group certainly knows that there are those out there who harbor ill will toward him. Why is it any more “harmful” to know that one of those individuals happens to be riding the same bus as he is? Moreover, once again, this offense can be avoided. The offended individual may look away, or take a deep breath, signal the bus driver to stop, and get off the bus.
But Is Refraining from Punishing Offense Really Worth It?
At the age of twenty, Osvaldo Hernandez was arrested and prosecuted for possession of a small pistol, a felony under New York state law. Hernandez, who grew up in a dangerous neighborhood in Queens, New York, claimed the handgun was for self-defense. Yet, despite his plea, the court convicted and sentenced him to a year in jail on Rikers Island. After eight months, the government released Hernandez on good behavior, after which he enlisted in the United States Army.
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After three years with the 82nd Airborne Division, Hernandez was deployed to Afghanistan, as a member of an elite paratrooper group, and served a fifteen-month tour overseas. Upon completion of his deployment to Afghanistan, Hernandez sought to become a member of the New York City Police Department (NYPD). However, his previous felony conviction prohibited him from joining the NYPD because of the department’s blanket prohibition against hiring individuals with prior felony convictions. Fortunately, on December 29th 2009, New York Governor David Paterson pardoned Hernandez’s felony conviction in order for him to achieve his lifelong dream of becoming a police officer. What was Hernandez’s response to the pardon? He thanked the governor for “giving [him] back his life.”7 In what kind of world can a man serve his country abroad as a soldier but domestically be unable to defend its citizens as a police officer without a court battle? Could there possibly be a legitimate justification for taking Osvaldo Hernandez’s lifelong dream away from him on the grounds that he possessed a dangerous weapon for self-defense in a dangerous neighborhood? Stated differently, did his mere possession of the pistol harm anyone? No.
Let us return to Professor Feinberg’s bus again. Note that you, the passenger, have several options for avoiding the offensive behavior: You could look away, get off the bus, or lobby your local government to ban or to criminalize those particular types of conduct. Indeed, one might sensibly wonder why it is that passengers should have to get another bus in order to avoid such repulsive actions. After all, is not freedom about the ability to choose one’s profession, start a family, and worship the God of one’s choosing,