In an odd rhetorical twist, our latest national conversation on guns has embraced an unlikely term: due process. After all, guns are the antithesis of due process. They kill instantly and indiscriminately, not on accepted rules of justice, but on the capricious basis of a sight line. Yet, some of the suggestions aimed at reversing the growing phenomena of mass shootings raise critical due process concerns – on both sides of the gun control divide.
Take poor Donald Trump, for example. In a rare and short-lived moment of sensibility, he suggested that we might want to think about relieving dangerous people of their guns before giving them due process. His acolytes at the NRA and Fox News went apoplectic. To them, the president sounded very much like Lewis Carroll’s Queen of Hearts in the infamous case of a tart-stealing Knave. So eager was her Highness to have the suspect beheaded, she called for a reordering of jurisprudence: “First the sentence, then the verdict.”
In fairness, that’s not exactly what Trump had in mind last week when he opined that, in the case of deeply disturbed people, we should “take the guns first, (and) go through due process second.” The concept seems eminently reasonable. If the issue before the court is whether a gun owner is a raving lunatic filled with homicidal rage, you don’t want him fiddling with his AR-15 semi-automatic on the witness stand while a judge determines if he is dangerous. Yet the reaction from the well-armed right was predictable. They have long been programmed to go into immediate convulsions upon hearing the words “take the guns”. This crowd’s favorite slogan has long been: “I’ll give you my gun when you pry it from my cold, dead hands.” They don’t take kindly to talk of gun taking.
The concept of due process has been around a lot longer than guns and dates back to early English common law. It was codified in the Magna Carta in 1215, and our founders later did a cut-and-paste, inserting those words into both the Fifth and Fourteenth Amendments of the Constitution. Although the nitty-gritty of what constitutes due process is an ongoing judicial work in progress, the basic notion is that government can’t take people’s life, liberty or property without going through a fair and just judicial process.
To the NRA, the only due process that should ever separate a guy and his gun is an involuntary commitment to a mental institution or an adjudication of being a “mental defective”. That standard would have kept 97 percent of recent mass shooters legally armed and ready to fire. The well-heeled gun lobby claims to have pulled Trump back from his momentary lucidity that gave rise to the concept of take-the-guns-first-and then-have-a-hearing. Fox News labeled the idea as “un-American as imaginable”.
Quite the contrary, Trump’s suggestion was deeply seeped in American due process tradition. For example, police can detain suspects on the “reasonable suspicion” that they committed a crime. They then go before a judge within a reasonable time period and the state must show “probable cause” to hold them for trial. Finally, in order to trigger a prison sentence, the state needs a conviction that comes only by proof beyond a reasonable doubt. That’s the same sequential approach Trump was talking about before he was reined in by his NRA handlers. There was ample evidence that the 19-year-old man charged in the recent Florida shooting was deeply distressed, armed with assault rifles and threatening to shoot up a school. Those facts should have been sufficient to temporarily confiscate his guns, pending a due process hearing on the question of his dangerousness.
In fact, that is precisely what happens right now in five states – California, Connecticut, Indiana, Washington and Oregon – that have adopted so-called “red-flag” laws. Based on evidence from friends, family or police of a credible threat, a judge can order the temporary confiscation of a person’s guns, pending a future hearing on the issue. Studies have shown that those laws have resulted in a significant reduction in gun homicides and suicides.
Trump came up with another brain storm on the gun issue last week, and this one would blow the entire concept of due process to smithereens. Waxing nostalgic about nineteenth century insane asylums, the president suggested this might be a way to lock up potential shooters when there is no evidence to support apprehension. “You know,” said Trump, “in the old days we had mental institutions. We had a lot of them. And you could nab somebody like this (the Florida shooter), because they knew something was off. (Then) he’s off the streets.”
Trump’s memory of the days when you could “nab” undesirables and toss them into the loony bin represents one of the more inglorious chapters of this country’s history. Based on a belief that mental illness could be dealt with only by locking people up, hundreds of thousands of Americans were confined to these draconian dungeons with little or no due process, many because they just seemed to be different. Once locked up, they were constantly sedated and, in many cases, surgically lobotomized. Prodded largely by rapid advances in mental health treatment, the Supreme Court ruled in 1975, that people could be involuntarily committed to mental hospitals only upon proving to a judge that they are a danger to themselves or others.
Even if the law changed, it’s hard to imagine building enough insane asylums to house all of the angry, socially awkward young men who have guns and talk about killing people. Recent reports indicate that the internet is filled with hundreds of group chats involving thousands of mostly young males who venerate school shooters and fantasize about joining their ranks. While carting them all off to a mental hospital and sedating them until their fiftieth birthday might reduce mass shootings, it totally destroys any semblance of due process.
There is a better solution: take their guns. After all, those students they are yammering about killing are also entitled to due process. Maybe one day, when the Congress and the White House are no longer owned by the NRA, we can finally get around to protecting that right to life, free from weekly mass shootings.
Clearly thought out and right as can be.