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.
Polls show overwhelming support gun control legislation.
Whatever legislation emerges however it will have to thread the needle in compliance with both due process and the Second Amendment.
Reblogged this on The Inquiring Mind and commented:
Day by day Trump reveals his ignorance and his dictatorial instincts
If a law is passed authorizing the police to confiscate the gun of a suspected mentally ill person, the confiscation would not violate the person’s due process rights. As Trump said, the due process part would come after the confiscation, which is routine and proper in the American justice system. The president explained it imperfectly, but that’s what happens when people speak extemporaneously in a meeting. When a person is subjected to involuntary commitment for mental health treatment, the opportunity to challenge it comes after the fact. We don’t typically label people dictators for believing the deprivation of liberty in such circumstances is appropriate. So how does it make sense to call Trump a dictator for merely suggesting a gun should be confiscated when cops suspect its owner is mentally ill?
Good post Jeff. Isn’t Civil Asset Forfeiture an example of abusing the confiscate first/due process 2nd</b. theory?
Thanks, Olly. Yes, I think civil asset forfeiture is outrageously abusive. But in general, the chronology is not, in and of itself, unusual or problematic.
That is not how it came across. Furthermore given Trump’s track record of bullying behaviour and his blatant disregard of norms and protocols for example re DOJ; plus his record of demanding personal fealty rather than to the Constitution my opinion is reasonable.
It came across how it did to you because you refuse to take into account it was said extemporaneously in a meeting, which is not the point at which the wording must be perfect. In the coming weeks, it’ll be great fun watching the gun control crowd complain about Trump giving them what they ostensibly want, as your are doing right now. Many people have been clamoring for something to be done about keeping guns away from people whose mental illness renders them unfit to possess firearms. Trump is clearly addressing that concern, yet you characterize it as dictatorial based on imperfect wording. The president talks like a guy from Queens because he is a guy from Queens. It’s probably due to anti-Trump bias that you insist on taking him literally while many others get the gist of his intent. You can worry about anything you want, but realistically, cops aren’t going to start confiscating guns without the authority to do so, just because Trump expressed himself colorfully in a meeting. That the president sometimes “demands” loyalty is irrelevant.
His demands for personal fealty are not irrelevant, seeking such fealty from office holders is wrong ethically,morally and possibly illegal.
What he said was wrong. Clearly we are not going to agree, so let us agree to disagree.
Declaring it’s unethical, etc. to seek fealty doesn’t explain why you think that particular fault is relevant to the topic of this thread. You’re merely insisting it’s relevant. No explanation. With respect to Trump’s comment in the meeting we’re discussing, what matters is the outcome. The outcome I expect is that Congress will try to come up with a bill authorizing the police to confiscate the guns of individuals they suspect are unfit to possess firearms due to mental illness. What – if anything – is worrisome about that outcome? Do you expect some other terrible outcome as a consequence of what Trump said in the meeting?
@Jeff – Who gets to define ‘mentally ill’? How would you enforce a standard? What’s to prevent someone being ‘swatted’ by an individual with a grudge?
Your concern and questions are valid, but we already deprive people of liberty when they’re subjected to involuntary commitment for mental health treatment. Taking away a gun that could soon be returned is much less worrisome than the imposition of force to detain a person against his or her will for a psychiatric exam. When that happens, I think the first determination is made by a cop or a psychiatrist, the second by a psychiatrist if the person was first detained by a cop, and if challenged, the third determination would be made by a judge. I’m assuming the process would be similar if cops were to become authorized to confiscate guns when they suspect it would be too dangerous for an apparently mentally ill person to possess firearms.
I expect the model for gun confiscation under suspected mental health concerns will be the Civil Asset Forfeiture process. The administrators of the program will have some low-level tripwire placed in as many locations as possible. Then, someone will trip it, have their weapons confiscated and then it will be the private citizen against the state attempting to prove the mental capacity to fully restore their 2nd amendment rights. Once that step is completed, the process begins to recover the weapons that were taken. This guilty until proven innocent approach has not worked out too well for the return of assets in the Civil Asset process. I have absolute confidence it will be equally difficult in the 2nd amendment cases.
Why don’t you think it will be more like involuntary commitment for mental health commitment? Are you more worried about how long it will take, or that the determination of unfitness will be wrong?
Step 1 is confiscate weapons.
Step 2 is whatever process the state determines is necessary. I have no expectations that the process will be insignificant.
Are you more worried about how long it will take, or that the determination of unfitness will be wrong?
I’m more concerned the Step 1 threshold will be so low that gun ownership will effectively be at the will of the state. That the initial gun ownership process will be Step 2 first.
Are the MAGAs now going to claim that this was simply Trump’s brilliance at playing 16 dimensional chess and that he knows exactly what he’s doing in his long term strategy on guns ?
Or can you finally accept that you elected a 21st C PT Barnum who doesn’t know what the hell he is doing and is distinctly uninformed and incurious as well as thoroughly corrupt??
I won’t attempt to speak for the MAGAs, but I assure you that the “rule of law” folks (me included) won’t sit idly by and allow ANY President to infringe the rights of ANY citizen simply because we voted against the other candidate. I know, it’s commonly (ignorantly) believed that supporting a President for honoring the oath of office from time to time implies one must support a President all the time. That’s not only a juvenile understanding of our responsibilities as a citizen, it’s a dangerous interpretation of the principle of self-government.
Well put.
Hear, hear, Olly!
Right and wrong is not political.
Thank you Jim and Karen.
Very well put with the sole exception that it assumes the day glo bozo has any inkling of the content of the oath of office he swore to, much less having “honored” it.
this is to rational olly
Mark,
No, it assumes Congress and by extension the American people can tell the difference between honoring the oath or violating it. No President is going to impeach himself; that would take far more character and virtue than this President or any previous (with perhaps the exception of Washington) has displayed.
James Madison warned about the “Tyranny of the Majority” – basically the dangers of pure democracy that operates “out of bounds” of the U.S. Constitution. Essentially voters support “authoritarian” leaders instead of supporting a constitutional “rule of law” system that limits and restrains government authority.
For example: during the so-called “War on Drugs” in the late 1960’s and 1970’s, supposedly law & order voters chose “authoritarian” leaders over “rule of law” leaders. Voters chose to destroy both the letter & spirit of the 4th Amendment – embracing “preemptive” searches instead of searches based on evidence of a past crime, requiring a probable cause warrant. This “authoritarian” policy was a complete failure and devastating to African-Americans and poor citizens living in the inner-city. We have spent over $1.2 trillion and have more drug abuse today than in 1970. Those sent to prison instead of treatment aren’t fully participating as taxpayers and consumers driving the economy, but are instead a drag on economic growth.
After 9/11, future Tea Party members and Conservatives voted for “authoritarianism” over a constitutional “rule of law” system. The authoritarian leaders they supported destroyed the remainder of our Bill of Rights and committed numerous felony crimes like torture, kidnapping, warrantless wiretapping, assassinations and denial of habeas corpus. The GOP-led Congress then passed unconstitutional “ex post facto” laws to make those past felonies legal. Only presidents can pardon, not Congress. Years later the “Espionage Act of 1917” was exploited to be used against “non-spies” like journalists and legal whistke-blowing, with over 90% of E.A. indictments happening after 2001.
Today, the same voters that supported “authoritarianism” over the “rule of law” – on drugs in the 1960’s and terrorism – seem surprised that Trump isn’t following a constitutional “rule of law” model on gun rights which would limit and restrain his authority today.
If you are a gun owner and support a constitutional “rule of law” government – which supports the 2nd Amendment – then you also must support a rule of law system on things you may disagree with like the 14th Amendment rights of LGBT-Americans, Muslim-Americans, Jewish-Americans, immigrants and everyone (and vice-versa).
When we ignore the constitutional “rule of law” system 99% of the time, it makes the entire rule of law system weaker and strengthens “authoritarian” leaders that view the U.S. Constitution as “optional-when-convenient” instead of a wartime governing charter that restrains their authority.
Most gun owners have voted for “authoritarianism” over the “rule of law” and today are on the receiving end of that system they created.
What they’ve done to the Fourth Amendment in the zeal to protect us from ourselves has been tragic. Such damage cannot be undone even if we as a people so desired; which I don’t believe my fellow citizens do.
The cops may (or may not) have the lawfully delegated *authority* (which can always be rescinded — at least in theory, anyway) to seize guns, but servant-government actors don’t enjoy any more *rights* (which are individual, unalienable and universal) than you or I do.
What guns are left to take? Didn’t Obama take them all? Or was it Hillary?
Does anybody know, if there is any progress being made with regard to another PARTY….other than the Dems and GOP.?
This should have started to be worked on, the day after the election. We are totally sick of this crowd…I used to be Rep. until they all fell under the Orange one, with the white eyes..spell.!!! All the GOP have buckled….and there’s a thug, leading them all by the nose.
Libertarian.
The biggest thing holding them back, aside from their silly insistence on making rational arguments to an irrational electorate, is that too many voters are afraid of “wasting their vote” on a third party.
As if voting for today’s Dems or Reps wasn’t already a wasted vote.
JR – first you gotta run a true Libertarian – Gary Johnson was pro TPP.
So was CATO
Elect a clown, expect a circus.
Well said !!!
As is often the case with Trumpisms, the thought was inartfully worded. When a person is arrested without a warrant, he or she is arrested technically without due process. Only when the arrestee is brought before a judge who makes a probable cause determination does the arrestee get his or her due process. The same is true for those detained without a custody order for mental health reasons. The detainee gets his or her due process, albeit after the detention. No one would suggest that in these circumstances the detainee is denied due process. Due process is given. It is just delayed for a short period of time. The same is true for emergency removal of children from their familial homes for neglect.
The same would be true for seizures of firearms. For example, in the case of the Florida shooter, law enforcement agents, acting on the tips provided, could not have arrested the shooter because at that point he had violated no law, but they did have probable cause to seize his firearms. An expeditious court proceeding, i.e., due process, would then be held to determine the lawfulness of the seizure.
Trump did not explain all that very well.
That’s why competent leaders defer such conversations to experts. Only a megalomaniac would believe that his uninformed instincts are worthy of advancement.
Actually, my point was that the idea might have some merit, only its articulation was faulty.
With the rational and winnable position available: ban bump stocks, repeal the repeal allowing the FBI to access government records on those registered as mentally questionable, make EVERY gun purchase, regardless of where it takes place, be scrutinized under new and ongoing refinements, cap magazines at five rounds for rifles and nine for hand guns, register ammo purchases as well as clip purchases, create a buy back system for all weapons outside of new regulations, etc; one has to ask one’s self why Trump is making a dog’s breakfast of all this. Firstly, Trump’s mess gives the NRA a stronger argument for resisting. Secondly, Trump can claim, after the next slaughter, that he tried to do this and that. Thirdly, Trump keeps sucking at the teat of the NRA and gun lobby ($30 mil). Fourthly, Trump places blame on Democrats as he tried to help them but they got nothing done. This could be the genius of his madness, or Trump could simply be an idiot. Either way this is not good for America. Trump is a charlatan and must go.
Did he forget that the NRA gave him $30,000, or like he says, doesn’t care? It could be that when you take $30,000 from 5 million advocates of killing, there are consequences.
“5 million advocates of killing”
It’s comments like this that make you look like an idiot.
Jim22
‘5 million advocates of killing’ is an exaggeration. However, given the NRA’s track record of adamantly going in the direction away from that which would have an effect on lowering the death toll, those that advocate no restrictions, not banning the murder for murder’s sake only aspect of weaponry, standing in the way of registering ALL firearm sales, limiting magazine capacity, allowing bump stocks, etc; it would not be incorrect to say that those that stand with The Peter, have blood on their hands. This goes for the puppets of the oligarchs that don’t have the minerals to openly oppose America’s main gun nut, The Peter.
It’s commonly argued that the oligarchs control the power in government. If that’s true, then wouldn’t the puppets of the oligarchs support greater restrictions on the 2nd amendment rights? In other words, would it be in the oligarchs best interest to support greater gun control or less restrictive 2nd amendment interpretations? Is it reasonable to conclude the NRA is not seeking to further the interests of the oligarchs, but rather to anchor the 2nd amendment debate in the principle that created it?
I do not agree with Trump on this. He has lived in NYC too long.
Just a reminder. When the 2nd Amendment was written, only single shot muzzleloader rifles existed.
Now with military style weapons & accessories like bump stocks, high capacity magazines, sniper scopes, armor piercing bullets, flash suppressors, silencers available, the 2nd Amendment seems outdated.
While the debate continues, such as raise the age limit, ban the assault rifles, there other problems. Adam Lanza didn’t buy the AR-15, the mother did. Jaylen Fryberg used daddy’s .40-caliber Beretta Px4 Storm handgun. By the way, Adam Lanza was considering shooting up a shopping mall before deciding on the school instead.
Exactly the same weapons existed at the time the Army and Navy clauses were written. Are they outdated, too?
The principle of the 2nd Amendment is not and was never about muzzle-loading technology. It’s about giving real teeth to the proposition that legitimate power is derived from the consent of the governed. I don’t expect the political elites to be on board with that idea. In fact, I expect them to be fairly horrified by it. That’s precisely why it was taken out of their hands early on.
Shouldn’t people be able to own full machine guns, rocket propelled grenades, self-propelled cannons, and small yield atomic weapons? Otherwise, how can the citizenry expect to wage successful military action on their own government? Otherwise, with just assault rifles, all the citizenry can do is engage in periodic massacres and violent domestic abuse.
Ask any number of insurgency movements over the past century. They seemed to do all right.
Jay S – I am for everything but your last sentence. An armed society is a polite society.
If we are so polite, why are there so many massacres? Or are occasional massacres just the price to pay for “individual freedom”?
And, since (say) the UK is not a particularly armed society, they must not be very polite over there…..
And, since (say) the UK is not a particularly armed society, they must not be very polite over there…..
I suspect the Muslim refugees would disagree; they seem to actually insist on it.
Jay S – we are number 104 in murder rates. The UK is way higher. The Swiss, where everyone is armed, are the lowest.
This is a great article addressing your post.
Our modern progressive friends scoff at the notion that the Second Amendment could really allow ordinary Americans to frustrate the tyrannical ambitions of a modern federal government with the modern U.S. military — gunships, nukes, and all — at its command. That’s probably true, though one need not be a sophisticated military tactician to appreciate the fact that the mighty America military has been bogged down for 15 years in Afghanistan, unable to tame a raggedy gang of modestly armed rustics — there is more to warfare than armaments.
https://www.nationalreview.com/2017/10/second-amendment-timeless-natural-right-protected/
Olly,
Just read that article. Lot’s of good stuff in it. Thanks.
Just a reminder. When the 2nd Amendment was written, only single shot muzzleloader rifles existed.
Neither did the internet, yet you continue to enjoy your 1st amendment protections without a quill, parchment or a press. Those silly anti-federalists and their demand that their rights be documented for posterity. It’s not as though anyone would seriously consider taking them away if they weren’t jotted down, right? Maybe it’s just me but perhaps there is more to our Bill of Rights than what was captured in writing.
Olly,
I saw a comment on another site discussing second amendment rights. And of course the anti-2A brought up “well, there is nothing in the 2A about owning an AR-15”. I liked the reply that yes this is true, but the first amendment says nothing about speaking so should we only be able to have free speech using sign language?
That’s a good point Jim. I would be willing to assume the 2nd amendment opponents have the best of intentions, but their arguments neglect the historical context that led to the Bill of Rights. The reason I dedicate much of what I post to the equal security of rights is that nothing makes sense without that as the root of everything. What is the legitimate purpose for government? Why do we have 3 branches of government? Why do we have states? Why do those states have governments? What’s the purpose of a bicameral legislative branch? And so on. Everything has a root in natural rights and of course their natural foe, Human Nature.
This article barely touches the “rim” of the problem posed by wackos with guns. There is a civil commitment statute in Florida and in every state. A prosecutor or another party can go to the civil commitment court and get an order locking up the wacko for inspection and then treatment and detention until he no longer poses a threat to self or others and is no longer wacko.
We have all this criiticizm of the Sheriff in that county. We need to take the prosecutor to task for failing to have wacko civilly committed. Jeso.
Prosecutors generally wouldn’t be in a position to file petitions under Florida’s provision for temporary commitment for evaluation. The petition is filed by someone who has observed the conduct establishing that the statutory criteria is met. Generally prosecutors take matters that are referred to them by front-line personnel in other public agencies based on the observations of others. Otherwise you end up with a lack of clarification as to the line between prosecutor and witness. I haven’t heard of information concerning him being referred to the prosecutor for action, though I might have missed it. Is there any?
How very Duterte of him. But not to worry. At the end of the day, Trump and congressional Republicans will submit to the NRA and no restrictions will be enacted. Of course, there will be a lot of speechifying in the meantime until a new crisis emerges.
Remember he is not a politician and was selected by the 40% largest voting block in ipreference to both the two parties who split sixty percent in the real election. Anyone expecting business as usual when it’s the Left plus the right wing of the left AKA DINOs and RINOs forgets we are in a war for the survival of our Constitutinal Republic form of Government to be more correct in a counter revolution against the socialist progressive left. Benson as a leftist sees an opportunity to put the left back in power and succeed in the goal of a one party one leader eventually no franchise system.
What it will lead to is the US Military living uip to their oath of office. Who the hell do you think is leading this ballots not bullets form of counter revolution?
Leftist? Don’t even know what that means to you. I’d be happier if the USA was rather more like the Nordic countries.
Did you know that a Norwegian politician of the Conservative Party there stated that Bernie Sanders would fit right in? That’s my notion of a proper conservative. Be happy to join such a party if we had one here.
I always wonder what is supposed to be so horrible about the governance in Scandinavia. They don’t exactly seem horribly oppressed over there.
Unfortunately in the US “conservative” has become interchangeable with uninformed.
Just what awful things are you afraid that the “socialist progressive left” might institute? Better health care? More access to education? Improved roads? High speed rail? Expanded airing of Sesame Street?
You left out increased stealing of your property. Increased use of the IRS to target groups that they disagree with. Decreased right to discriminate. Decreased holding people to standards. Basically a loss of all your unalienable rights.
I will specifically just discuss the IRS issue here. The question at hand had to do with whether certain organizations could or could not enjoy tax-exempt status, and whether or not their donors could remain anonymous. There are various categories in which to apply to be tax exempt, under tax law.
One category is 501(c)(3), described in Wiki as:
“501(c)(3) tax-exemptions apply to entities that are organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or for testing for public safety, or to foster national or international amateur sports competition, or for the prevention of cruelty to children, women, or animals.” That is, like the Boy Scouts or the ASPCA.
A related category 501(c)(4) is for organizations promoting “social welfare.”
And this only has to do with whether organizations enjoy special tax and reporting benefits. Not whether they can exist or not.
It was (and possibly still is) the official position of the IRS that blatantly political organizations could not be placed in these categories. So, when organizations applied for this tax exemption, the IRS as a first pass screened their names for terms such as “Tea Party,” “patriots,” “progressive” and a number of others. And then the applications for tax-exempt status were flagged for closer examination.
However, (mostly) right-wing voices screamed bloody murder over this, essentially believing that political groups ought to be treated as deferentially as (say) the Humane Society.
What it boils down to is : should blatantly political organizations be tax-exempt?
How about total economic collapse.
Money doesn’t just appear from nowhere.
When fusion is made practical, then maybe we can viably live in a socialist paradise.
Yes, money DOES appear from nowhere. It is created every day by a few keystrokes at the Federal Reserve. The policy known as “quantitative easing” was effectively a way to print money, without raising interest rates or inducing inflation.
Perfect Mr Drumpf statement..
>
Trump,
Please watch as all your USA Scottish supporters turn their backs to you as we walk off & leave your army on this Battle Field!
2nd Amendment shall not be Infringed by a Ignorant Russian immigrant’s grand son, Dr Michael Savage nor an Ignorant New York Piece of American hatin Sh*t!
Civil Asset Forfeiture, Take Guns Firsts, the Falure AG Jeff Sessions…’No, no!’ said the Red Queen. ‘Sentence first – verdict afterwards’ Alice’s Adventures in Wonderland
Trump,
No Forlorn hope around this camp at this time do I see.
Only the Finest Music, Dope Propaganda & Lies brought to us for at least the last 60+ years by the FBI, DOJ, CIA, US Govt etc.
Wow, I’ve only seen a small piece of it in recent years yet I know it’s a far larger operation that’s out of even their control.
https://www.youtube.com/watch?v=hWWsfrfq69A
What ever this world is one thing is clear to me after burying so many loved ones after the cancer/cancer treatment killed them, I will Never Ever die of this current Cut/Poison/Burn type Cancer Treatment. Whats the next type treatment people?
Yes, we all die but it won’t be that type of death for me.
Fine but when you do. When you turn tail and run back to the socialist left remember you cast yourself in the postion of enemies domestic when it’s time for our miitary to uphold their oath of office.
My, but you are confused. Benjamin Franklin would kick you right out the door.
Michael, just what kind of country do you wish for? Can you name another one anywhere that we should emulate? Russia? Turkey? The Philippines?
Let’s celebrate Sanity 🙂 🙂
In six hours Trump will tweet the opposite of what he said today and then some other brainfart will take over our attention.
The stable genius is an inconsistent moron. Fake news, I love Wikileaks, chocolate cake. Tremendous success, you know this, that I can tell you.
I don’t suppose that he is intentionally destroying the Republican party.
No? You caught on and congratulations. Which party’s membership selected him only to see the party leadership ignore him for the whole campaign. Which party unavoidably had to be coat tailed while we were busy destroying Clinton first and Socialst Progressive Democrats second? Which party has a very large group who are Republicans In Name Only aka the right wing of the leftist Government Party and a smaller faction of Reublicans per se?
Were The GOP to dump the RINOs by a portion forming the Constitutional Republlic party and formally referrng to the left as the National Democrat Socialist Labor Party things would be more clear. Hard to do when people are still voting for incumbents.
But they do whine and pine away for their lost 100 plus year old revolution being taken from them in a mannen of months with a zero budget and zero bullets effort.
You can’t form an honest party while you must rely on the other sides agents in place to exist.
That’s up to the independent self governing citizens to decide. While they still can..
.
You have had too much to drink to be even the slightest bit coherent.
Learn to hold your liquor.
It’s not as if Trump issued an edict. It’s just the early stage of a conversation. The Very Stable Genius is a very stable genius.
Oh, maybe the Very Stable Genus *is* intentionally destroying the Republican party…
He moving to the center, and moving his party to the center. What’s the nature of the destruction you envision?
Everyone is going to Vote Them Out. Let the other buncha crooks run the place next.
Fairness to the kakistocrats!
First you ust define center. Theirs lies between MeinKampf and Das Kapital aka the left. They think the center is between RINOs and DINOs.
For us in a Representative Constitutional Republic the center is the Constitution. not the center of the left.
More blather. The “left”, as you put it, is interested in liberty and justice for all.
Heard that phrase before?