BluegrassBilly
Active member
What follows is a response to the casual use of "violates due process." I'm honestly on the fence about these confiscation laws as a question of good public policy.
The Constitution could have stopped with "no person shall be ... deprived of life, liberty, or property," but adds the phrase, "without due process of law." This is the operational clause of all the interests protected by the Constitution. (Side note: the 5th Amendment only applies to the federal government, but during reconstruction we adopted the Civil Rights Amendments, including the 14th's due process and privileges and immunities clauses applicable to the states; not until the Civil Rights Act of 1964 did it have teeth, however.)
The analysis begins with questioning whether there was a deprivation of life, or a protected liberty or property interest. Then proceed to what process is due and when. Under these laws you get a limited pre-deprivation hearing requiring a "preponderance of the evidence" standard, albeit without your presence. But good judges are not in the practice of baldly rubber-stamping deprivations of constitutional rights. Then there's a post-deprivation hearing with a right to participate, right to counsel, and a "clear and convincing" standard. You then have the right to an appeal in a state court. You may also have a right to challenge the action in federal court. All of this probably satisfies the Constitutional due process requirements, but I'm not aware of whether they've been challenged in the federal appellate courts. As another layer of protection, if the proceedings were initiated in bad faith, most (all?) jurisdictions allow some form of malicious prosecution or abuse of process claim against the accuser.
Notably, many states (frequently the ones that don't have confiscation orders) have self-defense immunity standards under which the shooter only has to establish by a preponderance of the evidence that he acted in self defense to receive complete immunity - both civil and criminal - for the deprivation of life. Point being, we require a higher standard for the confiscation of arms in "liberal" states than we do for the taking of a life in "conservative" states. Contrasting that with our agreement that we'd rather relinquish our arms and trust the process, it's safe to conclude we view the right to life to be greater than the right to arms, the late Mr. Heston notwithstanding.
I've waxed too long, so I'll close with Churchill: ‘Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’
The Constitution could have stopped with "no person shall be ... deprived of life, liberty, or property," but adds the phrase, "without due process of law." This is the operational clause of all the interests protected by the Constitution. (Side note: the 5th Amendment only applies to the federal government, but during reconstruction we adopted the Civil Rights Amendments, including the 14th's due process and privileges and immunities clauses applicable to the states; not until the Civil Rights Act of 1964 did it have teeth, however.)
The analysis begins with questioning whether there was a deprivation of life, or a protected liberty or property interest. Then proceed to what process is due and when. Under these laws you get a limited pre-deprivation hearing requiring a "preponderance of the evidence" standard, albeit without your presence. But good judges are not in the practice of baldly rubber-stamping deprivations of constitutional rights. Then there's a post-deprivation hearing with a right to participate, right to counsel, and a "clear and convincing" standard. You then have the right to an appeal in a state court. You may also have a right to challenge the action in federal court. All of this probably satisfies the Constitutional due process requirements, but I'm not aware of whether they've been challenged in the federal appellate courts. As another layer of protection, if the proceedings were initiated in bad faith, most (all?) jurisdictions allow some form of malicious prosecution or abuse of process claim against the accuser.
Notably, many states (frequently the ones that don't have confiscation orders) have self-defense immunity standards under which the shooter only has to establish by a preponderance of the evidence that he acted in self defense to receive complete immunity - both civil and criminal - for the deprivation of life. Point being, we require a higher standard for the confiscation of arms in "liberal" states than we do for the taking of a life in "conservative" states. Contrasting that with our agreement that we'd rather relinquish our arms and trust the process, it's safe to conclude we view the right to life to be greater than the right to arms, the late Mr. Heston notwithstanding.
I've waxed too long, so I'll close with Churchill: ‘Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’
