President Donald Trump is embroiled in another controversy this week after dismissing both gun rights and due process rights in a single sentence when he told a bipartisan group of members that the government should “Take the guns first, go through due process second.” Trump also said that he was open to the possibility on a ban on certain assault rifles like the AR-15. The result was that the only people more up in arms than civil libertarians were gun rights advocates. Breitbart News ran a headline “Trump the Gun Grabber: Cedes Dems’ Wish List— Bump Stocks, Buying Age, ‘Assault Weapons,’ Background Checks . . . ”
Due process, of course, is defined as a process guaranteed before punishment. In fairness to Trump, police have the right to seize guns in suspected cases of crimes or imminent threats. However, absent such custodial conditions or exigent circumstances, citizens are entitled to procedural protections before losing their property. For the NRA and many gun owners, the threat of confiscation without due process by the government is a long-standing fear.
Trump appears to be advocating for expedited removal of guns to protect the public:
“I like taking the guns early, like in this crazy man’s case that just took place in Florida … to go to court would have taken a long time . . . Take the guns first, go through due process second.”
There are circumstances where police can act under clearly defined standards to seize guns pending judicial review. Those circumstances however would likely involve a court order or evidence of a criminal violation. For example, if police had probable cause to believe that a student could not possess a gun by law or was mentally unstable, they could remove the gun. However, the President’s comment came off a bit like the Red Queen’s rule of “Sentence first—verdict afterwards.”
The President’s embracing of the gun control measures clearly shocked some of the Republicans and delighted Feinstein who was described as “literally jumping for joy.”
You can watch Feinstein’s reaction: here
This could be a fascinating and significant moment for Washington. Clinton was famous for his triangulation strategy that ended up costing many Democrats their seats. Trump seemed willing to oppose the NRA on these issues and force GOP members into a political vice between the White House and the NRA.
Whatever legislation emerges however it will have to thread the needle in compliance with both due process and the Second Amendment.