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?

I can see your point of view and agree. A convicted felon loses the right to own a firearm and to vote. That may be what has brought the idea about that we are entitled to due process before they can take our guns away. We all know what all of this is about though. It's an effort to start the process of eliminating the private ownership of firearms.

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.

I think this is a fair high-level summary: “In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of life, liberty, or property by the government except as authorized by law. … The U.S. Supreme Court interprets these clauses broadly, concluding that they provide three protections: procedural due process (in civil and criminal proceedings); substantive due process, a prohibition against vague laws; and as the vehicle for the incorporation of the Bill of Rights.” https://en.wikipedia.org/wiki/Due_Process_Clause#Incorporation_of_the_Bill_of_Rights

Under the protections of the constitution are there any actions that a person could take, as an individual, that would warrant the forfeiture of any or all of those rights?
Just because some other entity doesn’t want you to have those rights is not a sufficient enough reason to lose them. That is where due process comes into play.

Do you believe a Government has the obligation to protect its citizens?

Let’s say that someone is batscit crazy (medical term), he has been in and out of mental Heath facilities for years. Let’s say he is extremely violent and has been convicted of assault or worse, more than once. Let’s say he now a free man, a bat schit crazy, violent, free man.

Do you believe the Government should allow him access to a firearm?

What about religion. If a “religion” preaches death to non-believers, stones non-believers in the streets, mutilates the genitals of their children, throws homosexuals off of roof tops, commits mass murder all in the name of Their God, should they be allowed to Freely practice that religion here in the USA ?

If he's a danger to the public, he belongs in prison or secured in a hospital for the insane. When in neither of those places (because there's not enough evidence to put him there after due process was afforded), he has the right to arms.

Your words, publicly or privately within your own house can easily negate any due process . Free speech is not unlimited unless you’re Antifa or a democrat politician.

Not if that person is a felon.

I’m not trying to argue whether red flags are good or not, I don’t like them. But all the ones I’ve seen require an affidavit like a protective order or a warrant.

To me, if they are deemed safe enough to walk amongst us in society, they should be deemed safe enough to have the same Constitutional rights as everyone else.

How to stop open treason.

End treason by .com/photos/156296479@N08/]Steve Zihn, on [bleep]

We are so down the drain...due process? Where the hell is 'due process' when the IRS without any judicial review, walk in and seize money and property? I'm not sure, but I think these "drug seizures" of property, vehicles etc. are done without judicial oversight.

A felon in most states can vote

That's an excellent point.

After you've paid your debt to society, you're no longer a felon. If you think someone is still a felon, he belongs in prison till he isn't.

Right. By which fact we can know that such actions are unconstitutional.

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...

So, I know I’m going to stir up a schit storm here. I’ll preface it by saying I wished we lived in a sane society where every vehicle WAS NOT merely an excuse to strip rights from people. And I say that because I can see situations where red flag laws could be useful. I actually experienced something this summer with a client whereby through no fault of his own, he suddenly found himself living next to a batshit crazy person. But there was very little he could do. Protective orders are limited to family or dating relationships. Restraining orders do very little. The cops weren’t interested. His wife who knew the neighbor was batschit knuckled under and went to bat for him when they did a 72 hour mental hold. My client was afraid that he was going to have to kill the guy. A red flag would have been nice.

Of course, usefulness isn’t the standard. Crime was pretty low in Stalin’s Russia too...so every action has to be balanced against rights and their infringement. And of course, now you can see the long game as well. For 75 years all the ways we would have used to handle crazy persons like state hospitals and all that have been dismantled in the name of civil liberty. In the State of Texas there are something like 2,000 mental health beds for 30 million people. That means there are hundreds of thousands of seriously insane people out there and very little can be done about it.

So break the system, then propose dramatic and potentially draconian means of fixing the system that you broke in the first place. Red Flag laws could work in a sane society where everyone respected the rule of law. In the clown world we’ve become, it’s just another step too far.

As I stated above, part of due process is the opportunity to contradict the charges (face your accuser) before a neutral judge, with the assistance of counsel.

You get that with a red flag, just like you do with a protective order. At least all the proposals that I’ve seen.

Not true. In most cases, the first time the victim knows there's any sort of legal action against him is when he gets the 5:00 AM knock on the door by the SWAT team who are there to take his guns. That's a violation of the notice requirement of due process.

No, not true. All that I’ve seen require a hearing anywhere from five to twenty-one days after the order is granted. And one won’t be granted without a sworn pleading and/or affidavit.

If you want to be mad about red flag orders, you should be FAR MORE upset about protective orders which are granted in the thousands every single day in every single jurisdiction of the country and not only restrict one’s access to firearms but restrict freedom of movement as well.

You all just see the Liberal Socialist Democrats video presentation.


You wanna talk about media sensationalism...

Wonder how much that little pollyanna production cost us taxpayers...


JFC.....

And honestly, I’m not really trying to argue it. I’m just pointing out that it’s already been going on for a long time. Getting a divorce and got custody issues? In some jurisdictions attorneys use an Ex Parte Order as a standard thing. Boom, you are prohibited from possessing a firearm. The first you hear of it is when the sheriff serves you. If you lose your hearing, which in some jurisdictions you almost always do because the standard of proof is merely a preponderance of evidence standard, then you can’t own a firearm for two years.

Did you and your old lady get in an argument in 1986 where the cops were called? Did they charge you with misdemeanor domestic violence? Were you embarrassed and just paid the ticket to get it over? Boom, you are now ex post facto prevented fro ever possessing a firearm.

Got a crazy and vindictive ex girlfriend who filed a bullschit protective order?

The list goes on. The Rubicon was crossed long ago. In that respect the red flag orders don’t operate any differently than lots of things they’ve already been doing for a long time.

The thing is, it doesn't matter how long they've been happening, they were and always will be wrong. Red Flags are simply more of the same. Getting raped in prison by a guy with a 10" dick might be more uncomfortable than getting raped by a 6" one. They're both still rape.

You are wrong.

Again.

You’ve been watching too many movies, Hawk. You might should consider real life for a change and your opinions on this matter don’t weigh jackscchhitt.

I’m not even arguing that. All I’m arguing, if you want to call it that, is that it is probably counterproductive (because it’s easily proved wrong) to argue that red flags are something new and unprecedented AND if red flags make you mad, you should probably be madder about what has been going on for decades in lots of other places.

For instance, if In the unlikely event Texas passed a red flag law, I suspect in a lot of counties they would be very hard to get and come under a lot of scrutiny because of the 2nd Amendment concerns. On the other hand, the same damned judges in the same damned counties would probably grant a protective order that does the same damned thing as a red flag case without much more than a second thought.