The Misguided Worship of "Due Process"

Today's post highlights an article by John Velleco, Vice President of Gun Owners of America, of which I am a member. His article, at the American Thinker today is entitled Red Flag Laws and the Misguided Worship of Due Process. Velleco has a point, one that I had not considered. If, and it is not too hard to envision, the judge who is deciding your "red flag" case is biased against guns, you are going to lose your 2nd Amendment rights, period.

And sure, you may be able to appeal the decision.  But who has the money and time to appeal, and appeal.  Maybe...maybe you might eventually get your guns back, but it will be a Pyrrhic victory.  By the time you win, your guns will be so rusted and abused that they would be worthless for their intended purposes. 

 All the due process in the world will not save you. What must be emphasized is that Red Flag laws are fundamentally Unconstitutional, no matter how you formulate them.

Most associate due process with concepts like the right to a hearing, an unbiased decision-maker, the right to be represented by a lawyer, and the ability to present evidence in your defense. But is it really true — as the president and many others appear to believe — that the government can take away someone's rights, so long as it showers him with lots and lots of due process? The promise of due process is little comfort when those exercising that process have no respect for the rule of law.

Imagine if the government accused you of wanting to be a drug-dealer. You've never been charged with — or even accused of — having actually sold drugs. But still, someone thinks there's a good chance you may in the future. So you're given a hearing, allowed to hire a lawyer, and permitted to testify why you won't become a drug dealer in the future. But at the end of the day, a judge still believes there's an unreasonable risk that you will enter the drug business. So, in order to prevent that possibility, for the next year or so, you no longer have any Fourth Amendment rights. The police may now stop your car and search it any time they wish and enter your home to search for drugs at will. What, that doesn't sound fair? What's the problem? You were given loads and loads of due process!

The government can't strip away Fourth Amendment rights simply because, in doing so, it has complied with due process rights. The Fourth Amendment still protects against "unreasonable searches and seizures" and requires a warrant based on probable cause. Likewise, the Second Amendment protects "the right of the people to keep and bear Arms" — regardless of whether the government thinks it's a good idea that a particular person have guns.

Certainly, young children, illegal aliens, and murderers are not part of "the people" protected by the Second Amendment. Current law makes firearms possession illegal by a person convicted of a felony or who has been "adjudicated as a mental defective or has been committed to any mental institution." But there is absolutely no historical or legal precedent for taking Second Amendment rights away from those who the government's "precogs" declare may commit a crime in the future.

I have made the point that due process was lacking in Red Flag laws, but my point was that real due process was impossible to begin with. Having a person make an anonymous complaint that is then acted upon by the government to the point of taking a persons 2nd Amendment rights can not be squared with those rights no matter what you write into such laws. What you will achieve is the ancient law where one could anonymously accuse another because of a grudge, but the state would take action against that person with little or no evidence that the accusation had any merit whatsoever.

Here is the other flaw in the idea of Red Flag laws:  you will take the target's guns away, but guns are not the only weapon he has.  If, as is purported, the target of such action truly intends to harm others, there are a thousand ways to do so.  Yet the Red Flag laws let him roam the streets free as a bird.  Might he not take his anger out on the judge himself?  Let's see here, there are knives, swords, axes, cars, fires (with various accelerants), bombs...well...the list could go on and on.  Human ingenuity in such matters is astounding.

But there is the problem with the entire scheme right there.  It is not the gun that is the problem, but the man himself.  You could ban human beings, though that seems counterproductive.  You might as well ban rocks.  Indeed, the first recorded murder was accomplished with a rock.  But God found fault not with rocks, but with Cain, who had killed his brother Abel.  It is our capacity for murder and mayhem that is the problem.  Creating more and more bizarrely convoluted laws has no effect.

What Red Flag laws do effectively is to arrest the gun, which can not do anything of its own initiative, while letting the gun owner, who can do anything go free.  Sorry to say, but our modern politicians know less than our Founders.  When one is confronted by a thug who means one harm, you are your own first responder.  The police, and I do not denigrate the police here, draw a chalk outline and investigate the crime after the fact.  They may or may not bring the thug to justice.  Having a gun evens the chance that the police may be drawing a chalk outline of the thug instead of you.  Don't you want that chance?