Should Due Process Really Be Optional for the Second Amendment?

Something IMO noteworthy happened the other day in Granola State, AKA the People’s Republic of Kalifornia.  It’s actually been happening there for some time.

The police went to a person’s home and confiscated their firearms.

California requires registration of certain types of firearms.  It thus also maintains a database of registered firearms – close to one million of them at present.

Periodically, they also cross-reference this database against those recently convicted of felonies, and against those involuntarily committed to mental institutions.

In theory, there’s no issue.  The Constitution’s 10th Amendment clearly places barring felons from firearms possession or ownership within the scope of state authority; Federal law likewise says felons cannot lawfully possess firearms.  Their original criminal trial provided the due process required under the 5th and 14th Amendments to the Constitution for that to be permissible.

And those who’ve been involuntarily committed “clearly” shouldn’t have access to firearms.  Allowing that would be absurd – right?

And yet . . . .

Well, let’s tale a good look at that second part.  Because I for one find certain facts regarding and implications raised by one recent case occurring in California disturbing as hell.

And since Jonn lets me post here, you’re gonna hear about my concerns – whether you want to or not.  If you keep reading, that is.  (smile)

. . .

As the article linked above notes:  a lady in California was recently committed – involuntarily.  She remained committed for two days, then was released.  Since she was released back to her own home, she’s obviously not a clear danger to herself or others; otherwise she’d presumably still be involuntarily committed.

As far as I know, she’s also not been declared either mentally incompetent or a danger to self/others by any judge or court.  She was (allegedly) involuntarily committed on the word of a healthcare worker who (according to the individual committed) “exaggerated the magnitude of her condition”.  (The facility that treated her was apparently contacted for comment but did not release any information regarding her condition or treatment.)

Because she’d been involuntarily committed, she was “flagged” by a later database comparison as someone who wasn’t allowed to own weapons.  State police later visited her home.  When they did, they confiscated a weapon registered in her name.

They also confiscated two weapons registered to her husband at the same time.  They did so because his possession of those firearms was deemed to giver her “access to them”.

Think about that for a moment.  Her husband (presumably) has committed no crime, nor has he been adjudged mentally incompetent or deficient.  But his weapons were confiscated too, because his possession of them might give someone else “access” – in this case, his wife.

. . .

The implications here are to me very disturbing, in three separate ways.

First:  two individuals’ Constitutional rights have been denied without due process.  No court was involved in this action (the seizure described above was  apparently made without a warrant).  No judge heard evidence concerning the woman’s condition from her healthcare provider, her, or others.  She has not been adjudged to be legally “mentally defective or incompetent”; she was committed for short duration solely (allegedly) on the basis of a healthcare provider’s word.  She was also obviously not considered a danger to self or others, as she was released two days later.

Yet her Second Amendment rights – which have now been held to be binding on the states by the SCOTUS in McDonald v. Chicago – have been abridged by the state.  The Fourteenth Amendment requires “due process” to do that.  There hasn’t been any – either procedural or substantial.  And since we’re dealing with a Constitutional right, both substantial and procedural due process would seem to be required before that right can be denied by the state.

The same is true for her husband.  Here, the situation is even more disturbing.  His Second Amendment rights have also been abridged, and his property confiscated – property that he can legally own under the laws of the People’s Republic of Kalifornia.  And he’s likewise had not due process before his property was confiscated.   Rather, his property was confiscated based solely on the act or condition of another person – a condition that is now in dispute, and which apparently has never received an unbiased hearing by an impartial observer.

The “access” part also raises troubling questions.  Suppose the man had a friend who was a felon, and who visited him on occasion.  Would that also be grounds for confiscation of his weapons – because his friend would “have access to weapons” during a visit?  Using the same logic, the police would be able to confiscate your car if your teenage son living at home lost his license – because your having an auto would “give him access” to an automobile, whether or not he had your permission to use it or even had the keys to unlock and drive it.

It would seem to me that, sans a court order, both of these individuals has a valid claim for denial of Constitutional rights against California.  Each of them has had fundamental rights guaranteed by the US Constitution denied them by the state without due process.  The opinion of a single healthcare provider or administrative official simply doesn’t appear to me to be sufficient to constitute “due process”.  The US Constitution requires due process before rights can be denied.  And the SCOTUS has held that both substantive and procedural due process are required when fundamental Constitutional rights are involved.

Second:  the potential for abuse here is high- high enough to scare the bejezus out of anyone who knows a bit of history.

Bogus mental health diagnoses of “insanity” are a well-documented tool of modern authoritarian dictatorships.  Two of the most odious dictatorships in history – 1930s Germany and the USSR – used bogus insanity diagnoses routinely against dissidents and other “unfavored” groups.  The results weren’t pretty.  If you want some details, look up how the USSR treated Andrei Sakharov (and many others).

Further, and with apologies up-front:  IMO if any profession rivals the legal profession regarding a high percentage having unwarranted arrogance and delusions of omniscience, it’s the medical profession.  Overbearing, arrogant doctors are as legendary and as common as overbearing, arrogant lawyers/politicians.  (Remember:  most professional politicians are also lawyers.)  And due to their self-perceptions of omniscience, like lawyers and politicians many such overbearing, obnoxious healthcare providers also routinely assume they’re experts not only in their chosen profession but in all fields.

Take that arrogance and self-perception of general omniscience and mix in an anti-gun bias, and you have the potential for abuse.  But we don’t have to worry about that, do we – because a healthcare provider would never let personal bias and/or politics affect their professional judgment, or cause them to abuse it.  Right?

Yeah, right.  For a counterexample, as I said above:  see Sakharov, Andrei.  And countless others.

Oh, and did I mention that there have been arguments in the recent past in the US in favor of firearms regulation due to public health impact – many of which were made by healthcare experts and/or practitioners?

Finally:  the diagnosis of “mental illness” in the US (and the world in general) is – to be charitable – elastic and malleable as hell.  Indeed, there are currently serious proposals within mental health community for new “mental condition” diagnoses that if adopted could render literally over half the US population subject to being diagnosed as having a “mental condition”.   Indeed, even the mental health profession is concerned about this seemingly over-broad expansion of diagnoses of “mental disorders”; as of February 2012 over 11,000 mental health practitioners had signed a petition calling for a “cease work” on the newest proposed Diagnostic and Statistical Manual of Mental Disorders (DSM) for precisely this reason.

The mental healthcare community’s push to expand their sphere of influence is understandable based on human nature.  More possible diagnoses means more work; more work means more employment opportunities, a larger profession, more influence, and more income.   The why behind this is well-understood.  It’s called “follow the money.”

Yet that also potentially gives that community great influence outside their area of expertise.  Suppose for the sake of argument that states begin limiting the rights of anyone with a “mental condition” regarding firearms ownership?  Or driving?  Or in the management of their own money or property?  After all, they’ve been diagnosed by “experts” as having “mental issues” – so they’re obviously not legally competent, right?  Even though that’s not been determined in court?

Think that can’t possibly happen?  Think again.  It already has – at least twice.  For the first example, see above about California, firearms ownership, and “access”.  And for the second:  the VA is already reporting those who require a financial conservator as “mentally deficient” to NICS by default unless those individuals can convince the VA otherwise.

. . .

The denial of a Constitutional right is not something to be taken lightly, even when it comes to public safety and health.  In particular, it should not IMO be left to the word or whim of one person.

Per the Constitution’s 14th Amendment, lawful denial of rights requires due process.  Further, the SCOTUS has held that both substantial and procedural due process is required for the denial of rights guaranteed by the Constitution itself.

Felons receive that in the trial in which they are convicted.  However, I don’t see how someone being involuntarily committed for two days and released – or having a spouse who’s been involuntarily committed, then released – and who has not been determined by a court of law to be incompetent and/or a danger to self/others qualifies as “due process” for the purpose of denying rights protected by the Constitution.  The same IMO is true for the determination of financial incompetence by a VA staffer.

Constitutional rights are precious things.  They should not be denied based merely on irrational fears, or on the whim of a single individual who may have an axe to grind or an agenda to promote.  And California’s practice of confiscating firearms without court orders– and the VA’s similar practice of reporting veterans requiring financial conservators as “mentally deficient” in the absence of any court determination of same – establishes the precedent that such a denial of rights without due process is allowable.

All roads do not lead to Rome; some lead to far less desirable destinations.  And one rather famous road leading elsewhere is paved with the best of intentions.

Category: Guns, Legal