Close observers of the gun debate often see references to due process. The NRA reaffirmed its commitment to this foundational value last week in an announcement that stated: “NRA does not, and will not, support any policy proposals that implement sweeping gun bans that arbitrarily strip law-abiding citizens of their Second Amendment rights without due process.” Understanding what due process means is critical to an appreciation of how the Constitution protects Americans and imposes accountability on government.
One way to understand due process is to consider its opposite, arbitrary rule, as exemplified by the Declaration of Independence’s recitation of King George III’s “history of repeated injuries and usurpations,” which led to “absolute Tyranny over these States.” Included among the charges:
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. …
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power. …
For protecting [his own troops], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States …
For depriving us in many cases, of the benefits of Trial by Jury …
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. …
Without due process, we do not have a government “of the people, by the people, for the people.” We are subjugated, as if by a tyrannical king, to the arbitrary whims of authority, enforced by official violence, with no accountability for abuses; no voice in how we are governed; and no impartial judiciary to resolve disputes.
Because of their experience with the British monarchy, the Founding Fathers were scrupulous to ensure the United States government would operate according to a system of checks and balances.
Besides the Second Amendment, the final check when all others fail, the Bill of Rights included provisions ensuring due process. The Fifth Amendment spells out various protections against arbitrary action by the national government, including that “[n]o person shall … be deprived of life, liberty, or property, without due process of law … .” Likewise, the 14th Amendment, enacted after the Civil War to protect Americans from abusive state practices, declares: “nor shall any State deprive any person of life, liberty, or property, without due process of law … .”
Courts have determined due process has two main branches, substantive and procedural.
Substantive due process refers to the quality of legitimate laws and enactments. It holds that there must be a sufficiently strong connection between a law’s terms and its objectives. Laws also must be written in a way that people can understand them, and they must be specific enough to prevent arbitrary and capricious enforcement.
Gun control laws often violate substantive due process. One example is the recent phenomenon of “gun industry accountability laws” that impose a responsibility on members of the firearm industry to implement unspecified “reasonable controls” over the sales and marketing of their products. These controls are supposed to be in addition to any explicit requirements found in law.
As we reported recently out of New Jersey, state officials there sued a gun shop otherwise in compliance with the law for violating the “reasonable controls” requirement. The court ruled that it did not need to define “reasonable controls” to resolve the case, because the term required some kind of additional effort by the gun shop, and because no such effort was evident, the shop must have failed in its legal duty. The court deferred to the attorney general’s suggestion that reasonable controls the shop should have taken included applying requirements the legislature had enacted for the sale of handgun ammunition to other products not mentioned in the law.
Thus, the shop only found out what the law supposedly required of them after they supposedly failed to do it. This violates substantive due process. The law should be considered “void for vagueness,” because it doesn’t put the subjects it regulates under adequate notice of what it requires of them. It also invites capricious enforcement, allowing officials to make up the requirements for lawful gun sales on a case-by-case basis.
The second main type of due process is procedural due process. This refers to the steps the government must take before depriving a person of life, liberty, or property, as well as the safeguards the person is entitled to during that process.
As we mentioned in another article about due process, the requirements of procedural due process include such things as:
1. Notice of the government’s intended actions;
2. A neutral decisionmaker to arbitrate the case;
3. An opportunity for the respondent to answer the government’s accusations or assertions;
4. The opportunity to present evidence that favors one’s position;
5. The opportunity to cross-examine the government’s witnesses and respond to the government’s evidence;
6. Right to representation by counsel;
7. A decision based on the record, with a written explanation of the reasoning for it.
Courts have applied different standards of procedural due process to various government actions, depending on the courts’ estimation of the seriousness of the rights at stake.
Gun control also often violates procedural due process. We have repeatedly cited “red flag” laws as a case in point. In various states, they allow a judge to enter an ex parte order for the seizure of a person’s guns based on the unanswered accusations of a petitioner. Indeed, the first time the respondent may know of the proceedings is when a sheriff’s deputy arrives at the respondent’s home to serve the ex parte order and seize the person’s guns. While the respondent may have a chance at a later hearing to argue for return of the property and the restoration of his or her rights, the deprivation has already occurred at that point.
Indeed, violations of due process often accompany the government’s supposed attempts to keep guns out of the “wrong hands.”
We are often told it is “common sense” that a certain category of people “should not have access to guns.” These have included “criminals,” “terrorists,” and the “mentally ill.”
While that proposition has some intuitive force to it, the details of any such scheme must satisfy due process for the regime to be valid.
How broadly is the category defined? What evidence links that entire category to enhanced risk? Who decides who falls into a given category? What procedures ensure that decision is valid? How, if at all, can a person who is incorrectly categorized challenge that decision? Is there any process for a person whose situation changes to be relieved of legal disabilities?
All these questions matter in determining whether any disarmament scheme is legitimate.
NRA-ILA is constantly policing the boundaries of these sorts of laws to ensure that they have a valid basis in facts, evidence, and procedure and that they are not just an opportunistic way to unfairly grab guns from a convenient or defenseless scapegoat.
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