An observer of American political discourse can’t go anywhere these days without being bombarded by reproachful references to the importance of “due process.” According to some of his critics, practically everything President Donald Trump does to administer U.S. immigration law is a violation of the due process his detractors insist is owed to noncitizens who entered the country illegally.
While many on the left have been eager to cite due process to advance their political preference for unrestricted immigration, the selectivity with which they employ their outrage is conspicuous. Case in point: these same self-professed defenders of process fail to display any concern when American citizens’ constitutional rights are stripped without due process of law.
Consider, on April 22, a group of 26 Democrat U.S. senators signing a letter to the president complaining about what they contend was a lack of due process afforded to a noncitizen in a high-profile deportation case. In 2022, all but one of these same senators (either as senators or U.S. representatives) voted for the ill-named Bipartisan Safer Communities Act (BSCA). The BSCA has been used to promote and fund ex parte “red flag” gun confiscation laws that strip Americans’ Second Amendment rights without due process. The remaining senator, Angela Alsobrooks (D-Md.), made clear on her 2024 senate campaign website that “she supports the implementation of red flag laws.”
As a single-issue organization, NRA does not take positions on matters outside the organization’s purview. NRA-ILA merely invites those purportedly upset about due process in the deportation context to extend their professed concern for this legal principle to circumstances involving the fundamental rights of their fellow citizens.
In relation to the federal government, the Fifth Amendment to the U.S. Constitution provides: “No person shall… be deprived of life, liberty, or property, without due process of law.” Moreover, Section 1 of the Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” In District of Columbia v. Heller (2008), McDonald v. Chicago (2010), and New York State Rifle & Pistol Association v. Bruen (2022), the U.S. Supreme Court held that the Second Amendment protects an individual right to keep and bear arms; in the Fifth and Fourteenth Amendment context, that constitutes a liberty. A respondent’s firearms are, of course, their property.
The most flagrant attack on the due process rights of American gun owners has come in the form of “red flag” gun confiscation order legislation.
As enacted in a handful of states, “red flag” or “extreme risk protection order” (ERPO) laws grant the government the authority to eliminate a person’s Second Amendment rights and seize their firearms ex parte. This means that these “innovative” confiscation orders are issued without a hearing or other opportunity for the target of the order to be heard and present evidence. The target of such an order need not be accused of having committed any crime. Moreover, this type of legislation typically permits the government to seize firearms based on weak and nebulous standards of evidence.
The current ex parte process in several states is so deficient that the arrival of law enforcement at a person’s home to seize their firearms may be the individual’s first notice whatsoever that their rights have been abrogated or were even under threat.
Attorney and constitutional scholar David B. Kopel summarized the constitutional defects of red flag laws in an article published in the Law & Psychology Review, titled, “Red Flag Laws: Proceed with Caution.”
Kopel explained, “Constitutional requirements of procedural due process are at their height when an individual is deprived of a ‘fundamental’ enumerated right. The right to keep and bear arms is such a right.” Listing the necessary elements of due process, Kopel noted,
Courts have identified seven key elements in procedural due process:
1. Notice
2. A neutral decision-maker
3. An opportunity to make an oral presentation
4. The opportunity to present evidence
5. The opportunity to cross-examine witnesses and respond to evidence
6. Right to representation by counsel
7. A decision based on the record, and reasoning for the result.
…
[A]n ex parte system deprives individuals of five of the seven elements of due process: notice, opportunity make an oral presentation, opportunity to present evidence, cross-examination and response to evidence, and the right to counsel.
Unfortunately, this isn’t the only way governments have sought to circumvent due process to attack Second Amendment rights.
The Department of Veterans Affairs (VA) administers a system of benefits for veterans with service-connected disabilities. Its own regulations allow those benefits to be received by a “fiduciary” on the beneficiary’s behalf if the VA determines the beneficiary to be “incompetent” to manage his or her finances. These determinations are made by VA officials, most without any special mental health training. There is usually no judicial process involved. The only issue in the VA’s “incompetency” proceeding is the individual’s “capacity to contract or to manage his or her own affairs, including disbursement of funds”.
The current VA system for determining “incompetency” has no necessary relationship to people who are dangerous or suicidal. It asks a different question, whether the person needs help handling VA benefits. And the answer to that question is provided in the first instance by VA employees, not by judicial officials operating according to the usual requirements of due process for someone facing a lifetime loss of a fundamental civil right.
Starting in 1998 (during the infamously anti-gun administration of Bill Clinton), the VA reported beneficiaries who have been assigned these fiduciaries to the FBI’s National Instant Criminal Background Check System (NICS) as “mental defectives,” and thus prohibited from possessing firearms under 18 U.S.C. 922(g)(4). This used to occur without any notification to the beneficiary that the government considered him or her legally prohibited from possessing firearms.
Last year, NRA-ILA secured a provision in the FY2024 appropriations process that defunded VA’s ability to submit the names of veterans with fiduciaries to NICS without a determination pursuant to due process of law by a judicial authority deeming that a veteran is a danger to him or herself, or others.
While the VA appears to have complied with the rider, it had (under the prior administration) rebuffed a separate effort aimed at purging the previously reported records of beneficiaries with fiduciaries from NICS, claiming that it “could not” and “would not” comply with the legislation. It is apparent, therefore, that VA’s anti-gun policies are so entrenched in its culture and career ranks that a permanent legislative solution, or much-needed action by the federal courts, is the only path forward.
There’s also the federal government’s misuse of its secret and due process-less watchlists to curtail Americans’ Second Amendment rights.
NRA-ILA, along with some of the more principled civil libertarians, have successfully worked to prevent the federal government from explicitly prohibiting firearm possession and acquisition by those it haphazardly puts on its secret watchlists. As those on the lists may not even be aware of their status, and placement occurs pursuant to secret and nebulous criteria, inclusion on these lists occurs without due process. Moreover, previous administrations’ loose application of the “terrorism” label, to potentially encompass their political opponents, compounds the threat these lists pose.
Even as the U.S. Congress has repeatedly rejected the use of secret government lists to bar firearm acquisition and ownership, the permanent state has worked to encumber the Second Amendment rights of non-prohibited persons who find themselves on the watchlists.
According to the Congressional Research Service, it is standard FBI practice to delay firearms transactions to those on the government’s secret watchlists.
In the case of a possible watchlist match, NICS sends a delayed transfer (for up to three business days) response to the querying federally licensed gun dealer or state POC.
During a delay, NICS staff contacts immediately the FBI Headquarters’ Counterterrorism Division and FBI Special Agents in the field, and a coordinated effort is made to research possibly unknown prohibiting factors. If no prohibiting factors are uncovered within this three day period, firearms dealers may proceed with the transaction at their discretion.
Note the language, “firearms dealers may proceed with the transaction at their discretion.” The FBI is surely aware that many firearms dealers are reluctant to transfer a firearm to an individual without an affirmative “proceed” from the NICS, even though they are statutorily allowed to do so. In such cases, the federal government has, at the very least, severely infringed an individual’s exercise of their Second Amendment rights without due process of law.
To reiterate, NRA does not take political positions outside its remit. However, NRA-ILA encourages pundits and policymakers seeking to shape public opinion towards an expansive view of due process in the immigration context to give even the slightest consideration to the position that due process of law should also protect actual American citizens’ fundamental right to arms.
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