Ken’s Take on the World


On Guns and Sense

In the wake of the latest mass shooting event in San Bernardino that killed 14 and wounded 21, including at least two police officers, my Twitter and Facebook feeds lit up with calls to enact more vigorous gun control measures.  This is a recurring theme in this country.  There is a mass shooting that captures the attention of the public, there are calls for more gun control, the calls go, mostly, unheeded, and the nation moves on until the next day or next week when the next mass shooting event rivets the nation’s focus on gun violence.

 

In the aftermath of the latest shooting, which baffled investigators for nearly four days before determining this was an act of terrorism, albeit, one of the more convoluted episodes I can recall, Congress finally attempted to take action.  Senator Dianne Feinstein introduced a measure that would close a loophole that currently permits suspected terrorists to legally purchase firearms in the United States.  This measure failed on a mostly party-line vote with all but one Republican voting against the measure and all but one Democrat voting in favor of the measure.  Following the vote, there was condemnation from gun-rights proponents that the measure would have stripped away due process rights from those seeking to purchase handguns.  This was the first time I had heard this suggestion made, and from my Twitter feed, this line of conversation picked up a bit of steam.

 

First off, let me say that Twitter is a difficult environment to try and have a coherent and reasonable debate with anyone on any issue, let alone one as complex and controversial as access to firearms.  Nonetheless, I engaged in conversations with several folks who supported the view that barring people on a consolidated FBI watch-list from legally procuring firearms was a violation of due process rights established under the 5th Amendment of the US Constitution.  I admit that I was baffled at this suggestion as this is the text of the amendment:

 

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” – See more at: http://constitution.findlaw.com/amendment5.html#sthash.VZehsmyM.dpuf

 

The gist of the Twitter conversation is that, as the right to, “bear arms” is an enumerated right within the Bill of Rights, being, “…deprived of life, liberty, or property without due process of law…,” means that blocking specific individuals from obtaining a firearm infringes upon their Constitutional rights.  The focus of this discussion, left unspoken by proponents of this position, is on the word, “liberty” suggesting that not being able to buy a gun deprives an individual of her or his liberty.  Now, I am not besmirching any of the participants of this line of thought as I am certain they are each patriotic Americans.  However, their line of reasoning is flawed.  Being limited to 140 characters, I was unable to effectively explain the errors associated with this line of thought.  It is clear, however, that their focus on depriving a person of, “due process” BEFORE denying a fundamental right is un-Constitutional.  This is an incorrect interpretation of due process as related to the purchase of firearms by an individual who has had their name placed on a watch-list of suspected terrorists.

 

It has been publicly recognized that this list compiled by the Department of Justice is flawed and there are names on the list that, most likely, should not appear on the list.  Other names, like at least one of the suspected shooters in San Bernardino, should probably be on this list.  Some elected US officials, children and infants, and deceased individuals names appear on this list as has been reported by numerous media outlets.  See: http://www.wired.com/2007/09/700000-name-ter/  http://dailycaller.com/2015/12/04/san-bernardino-shooting-suspect-not-on-terrorist-watch-list/

 

Critics of this list complain that due to flaws, the list should not be a bar to legally obtaining a firearm.  They state that the list is arbitrary and that people are not informed their name is on a watch-list until they attempt to engage in activity (such as attempting to board a commercial airliner) that would cause the person’s name to appear.  Prior to September 11, 2001, several federal agencies maintained lists of individuals who were subjected to heightened scrutiny.  After the horrible terrorist attacks of that day, President George W Bush signed a Presidential Directive requiring the FBI to consolidate and maintain these listings.  There are currently nearly a million names in this database.  If your name is on the list, you can expect to be subjected to enhanced scrutiny in certain circumstances (boarding a commercial aircraft, being pulled over for speeding, attempting to purchase a firearm, etc.).  A number of reasons exist why a person’s name may appear on this list.  One reason, is that you are, in fact, suspected of being a terrorist.  Often, an individual’s name will appear because it is either identical to, or similar enough to, a name used by a known or suspected terrorist.  Senator Ted Kennedy’s name appeared on the watch-list because a suspected terrorist was using, “Edward Kennedy” as an alias.  Representative John Lewis had his name on the list for the same reason as did at least one Roman Catholic nun.  The list is hardly arbitrary as you have to be, “nominated” by someone in the intelligence community in order to be evaluated, promoted, and finally, placed on the list.  Additional information on being on this list, and how to remove your name on the list may be found here:  http://people.howstuffworks.com/government-watch-list.htm

 

In any case, the folks I attempted to carry on a debate with via Twitter, are incorrect that denying or, most likely deferring, the purchase of a firearm violates their due process rights under the US Constitution.

 

What, exactly, is, “due process?”

 

As the name implies, it is a method, or process, that is owed to another person.  This may be established within the framework of organizational policies or, as used in this discussion, a requirement that is established within the framework of our nation’s founding document, the US Constitution.  Due process provides a means for an individual, or group of individuals to seek relief, or a redress, of a grievance.  The process involves those steps put into place for that appeal.  Under the US Constitution, due process, especially as recognized under the 5th and 14th Amendments is recognized as two separate entities.  There is procedural due process and there is substantive due process.  Procedural due process requires that a process for redress of potential harms be provided for the person who has suffered.  Substantive due process requires that this process be sufficient to resolve the issue at hand.

 

The folks in the Twitter universe invoking the 5th Amendment due process provisions as a reason to not block actual or suspected terrorists from obtaining firearms are actually missing the entire point about both, procedural and substantive, due process.  A number of these folks have suggested that by not providing due process BEFORE denying a fundamental right, a person’s fundamental rights have been violated.  This is not the case.  My counterargument to this flawed assertion is that while procedural due process may exist prior to a “harm” being inflicted, substantive due process begins AFTER a fundamental right has been infringed upon.  Furthermore, none of the recognized, “enumerated,” or, “fundamental” rights is absolute.

 

An example of procedural due process would be if I intended to stage a protest rally in a certain location.  It should be noted that not all speech is protected under the 1st Amendment.  For example, a person cannot yell, “Fire!” in a crowded theatre because he or she feels like causing a commotion.  Politically protected speech, though, is recognized as an essential, or fundamental, right.  However, even politically-motivated speech is subject to certain restrictions.  Namely, the time and the place of such protest may be limited for specific reasons, including safety.  If I failed to obtain the appropriate permits prior to engaging in this protest, I could be arrested and denied permission to exercise what has been recognized as a fundamental right—the right to engage in politically-protected speech.

 

Additionally, a person must be legally capable of exercising the particular right.  Would any logical person suggest that a five year-old child has the legal capacity to purchase a firearm with their allowance money?  This is why those persons who have been adjudicated as being mentally-unfit are banned from possessing firearms.  The same goes with certain convicted felons even after they have served their prison sentences.  Aren’t we denying these individuals their fundamental rights?  Yes.  Again, no right established in the US Constitution is considered absolute!

 

Now, to the point recent Twitter postings allude to:  Denying a person the legal opportunity to purchase a firearm violates their 5th Amendment due process rights.  Never mind that this right generally refers to an individual who has been formally accused of committing a serious crime.

 

If I was to enter a gun store, or any other environment that sells firearms, and attempt to purchase a firearm, I may be required to provide certain information which is supposed to be checked against a database that includes names that are on the consolidated terrorist watch-list.  Suppose my name flags as being on this list.  I will assume I would be informed this is the reason that I was being denied the opportunity to purchase said firearm(s) as this has not happened to me before.  If nothing else, I would be informed that there is a process that I may follow to address and correct any information that I believe is erroneous and what that process is for doing so.  After all, the gun seller wants to make a sale and would like me to return to purchase the gun(s) I wanted, right?

 

If the folks I was conversing with through Twitter were able to catch on to what I was pointing out, they might have a viable claim that the placement of their name on a list of suspected terrorists violated their 5th and 14th Amendment due process rights.  I would suggest that an individual might want the ability to be notified PRIOR to their name being placed on the list.  There is no process for this, however.  This is where the folks I was having a dialogue with should have their grievance.  There is a process for having your name removed from this list.

 

The process for purchasing a firearm, as I stated before, requires that a purchaser be eligible to exercise this action.  One additional point regarding the folks I was conversing with is that I am surprised that folks who claim to be so patriotic are so sympathetic to the needs and desires of actual terrorists.  Perhaps, that was a bit snarky, however, that is what the Senate vote was designed to address—the ability of terrorists who WANT to legally purchase firearms.  Why would patriotic Americans want to, even inadvertently, facilitate the efforts of a terrorist?

 

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