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No Constitutional Authority for the Feds to Confiscate Guns Without Due Process

No matter your views regarding gun rights, Trump’s casual dismissal of due process should alarm you.

March 20, 2018

Cross-posted from The Hill

Just two weeks ago, Vice President Mike Pence spoke approvingly of a California law that permits police officers, via a valid court order, to temporarily take weapons away from people deemed a danger to themselves or others. President Trump retorted that he preferred to “take the guns first, and go through due process second.” While the White House has since tried to backpedal on the President’s remarks, there is little doubt of his position: there are, in his words, too many “checks and balances.”

No matter your views regarding gun rights, Trump’s casual dismissal of due process should alarm you. The implications of his statements go far beyond the Second Amendment and signal a deep ignorance — or worse, indifference — when it comes to the Constitution and the rule of law.

Due process, as enshrined in the Fifth and Fourteenth amendments, means that the state, through law enforcement, cannot enter your home or vehicle and take your things without following a process in which it demonstrates a legitimate need for its actions. Due process also means that if you are arrested, you will be notified of the charges against you and will receive a hearing before a magistrate or judge. If your case proceeds to trial, you will be entitled to more process: access to information collected by the government, the ability to present witnesses in your defense and the chance to question witnesses against you.

Too often, due process is presented in popular culture as a thumb on the scales for the “bad guy” — a technicality that allows the criminal to go free. In fact, due process is a fundamental guarantor of the rule of law, separating free democracies from police states. In countries where governments can take away rights or property without due process, the coercive power of the government is easily turned against political opponents or activists, disfavored minorities, pesky journalists, and others who threaten the status quo.

Due process is also critical for getting to the truth. Under the California law Pence mentioned, a judge reviews evidence to determine whether a person is a danger to himself or others. Without the need to gather and present evidence, how would police officers decide who is or isn’t dangerous — and who would ensure that their conclusions weren’t tainted by bias or prosecutorial zeal? Quite simply, decisions made without process are far more likely to be wrong.

The rule of law may seem like a luxury when dealing with recurring threats to public safety like school shootings. Fear and a sense of urgency can lead the public to accept, or even demand, some cutting of constitutional corners. But these same dynamics increase the chance of government error or overreach. It is when we most desire to throw out procedure — those moments when we are afraid and willing to dispense with process — that we need it the most. That is when our democracy itself is most vulnerable.

To be clear, due process does not mean that law enforcement must stand still when there are truly exigent circumstances. If there is an active shooter, law enforcement can and should act and explain its actions later. If officers must seize a person’s property to avert imminent harm, a post-deprivation hearing may still be required. However, these instances are supposed to be exceptions to the rule. President Trump’s words indicate the opposite: a world in which bypassing process is the rule, not the exception.

If Trump’s comments were a one-off, they could be dismissed as mere tough talk. But time and again, the president has made clear that he does not respect the basic processes that safeguard the rule of law. He has endorsed police treating suspects roughly, urging them not to protect the heads of arrestees when placing them in police cars. As a candidate, he suggested that the United States should consider killing the families of terrorist suspects; as president, he praised Philippine dictator Rodrigo Duterte, who is infamous for the extrajudicial killings of drug lords and others.

We cannot afford to ignore this pattern. When leaving the Constitutional Convention in 1787, a woman asked Benjamin Franklin whether the framers had decided on a monarchy or a republic. His answer: “A Republic, if you can keep it.” Due process, along with the other “checks and balances” Trump denigrates, are how we keep it. When Trump attacks them, it is incumbent on all of us, regardless of party, to stand up and speak out in their defense.