I've been thinking about this quite a bit for the last few days, as I've spent a lot of time moving snow. In several recent discussions here on the Fire, guys have brought up due process being a requirement before taking someone's guns, and that getting around due process is an infringement on rights. I just haven't been able to sort out the value of due process in my mind.
Why are 2nd Amendment rights subject to due process, in you gents' eyes who would argue the validity of it?
Do you agree that your right to speak freely should also be subject to due process before it is removed? How about your freedom to worship as you choose? Should the government have to go through due process before removing that right as well? And what about your right to privacy, to be secure in your effects? Should the government go through due process before violating your property?
What about your bodily autonomy? Is due process required before you are mandated a medical procedure? How far would you take that? Due process before you are raped?
How is due process a Violate My Rights For Free Card?
Due process applies when you've been accused of a crime. When you've been accused of a crime, the state has the power to, for example, remove evidence of that crime from your possession, but only after due process, i.e., a warrant signed by a judge permitting the state to search for and seize said property. So the state may not take your property in connection to an accusation that you are plotting a crime (which is a crime in itself) without first giving you an opportunity to face your accuser before a neutral judge and contradict him, along with the assistance of an attorney. That's due process for a taking.
The problem with the Red Flag laws is that they have to do with, essentially, an accusation by the state that you are plotting a crime (or, due to mental illness, are on the verge of committing a crime), but they skip over the requirement of a sworn statement to a judge that evidence for this exists that makes it more likely than not true. That sworn statement is crucial, because if fabricated, it places the accuser in legal jeopardy, which makes it more reliable, because much less likely to be frivolous.
Good points but as we are talking about basic rights, I would submit that "the taking" is designed as a punishment:
Chief Justice Marshall wrote (in Fletcher vs Peck)
"It is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the People of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the sudden and strong passions to which they are exposed. The restrictions on the legislative power of the state's are obviously founded in this sentiment; and the constitution of the United States contains what may be deemed a bill of rights for the People of each state. No state shall pass any bill of attainder. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained." (DJT Trial Memorandum)
A bill of attainder is essentially a punishment. I believe that the constitution similarly limits the U.S. congress from punishing American citizens in this respect...
