A statue of the Contemplation of Justice outside the Supreme Court
A statue of the Contemplation of Justice outside the Supreme Court / Stephen Gutowski

Analysis: The Due Process Defense of Rahimi [Member Exclusive]

Due process is always essential whenever somebody’s unalienable rights are at stake. Concerns over process have taken center stage in many debates about gun laws in recent years, especially in the fight over red flag laws.

Now, complaints over the lack of due process protections are also at the center of the Supreme Court’s latest gun case.

While Rahimi has focused on the lack of similar historical laws barring gun ownership by people accused of domestic violence and other Second Amendment advocates have focused on problems with how the modern prohibition is written, the Cato Institute is focused on the process involved. In its amicus brief, the libertarian think tank said people who commit domestic violence should be kept away from firearms, but only if the process for taking their gun rights is sound.

“The right of women to be free from physical abuse at the hands of men has received short shrift throughout our nation’s history,” the Cato Institute wrote. “And so has the right of the people to keep and bear arms. This case presents those rights in direct—but not insoluble—conflict. Contrary to the maximalist positions of opposing partisans, our nation’s traditions present no obstacle to disarming genuinely dangerous people and abundant guidance for how to accomplish that result with due regard for the fundamental rights of all concerned. But doing so will require fresh legislation, because § 922(g)(8) is both historically anomalous and legally deficient in failing to ensure an adequate measure of procedural due process.”

Cato argued the federal prohibition doesn’t require much in the way of protection for the accused’s Second Amendment rights before they can be stripped.

“[A]ll that § 922(g)(8) requires is notice of the proceeding and an opportunity to participate, together with either an express finding of dangerousness or an explicit prohibition of the use or threatened use of force against an intimate partner or child,” the group said. “Notably, there is no requirement that respondents be advised beforehand that issuance of the order will render it unlawful for them to possess firearms; no requirement that they be provided with counsel; no requirement that the issuing court make any specific factual findings; and no provision for a heightened standard of proof, as this Court has held is constitutionally mandated ‘when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.'”

It argued the law was before the Court had commented on the extent of the right to keep and bear arms and that meant Congress and lower courts treated it as more of a privilege when considering what kind of legal process would be necessary to restrict or even remove it. Since the Court has now opined on the scope of the Second Amendment, Cato argued it should ensure any attempts to deprive somebody of their gun rights should be accompanied by a much higher standard of process protections.

“Indeed, so fundamental is the norm of proportionality between the magnitude of an individual’s exposure and the quality of the process to which they are constitutionally entitled that it is reflected not just in civil cases but in criminal prosecutions as well,” the group wrote. “Thus, the Court has held that there is no right to court-appointed counsel when the defendant is not facing potential incarceration, Scott v. Illinois; that there is a right to court-appointed counsel but not a jury trial for ‘petty’ offenses where the maximum punishment is six months or less of incarceration, Baldwin v. New York; and that there is a right both to court-appointed counsel and to a jury trial for ‘serious’ crimes with a potential sentence of more than six months.”

Cato argued the Court traditionally balances the affected right and the risk the procedures used could lead to erroneous decisions against how useful added protections could be and how much those protections would burden the government.

It said the Court has already found the right to keep and bear arms is fundamental. And it argued that right isn’t completely forfeited even when somebody commits domestic abuse.

“Reprehensible as the physical abuse of an intimate partner certainly is, perpetrators of domestic violence do not thereby forfeit entirely their fundamental right of self-defense,” the group wrote, “though the means of effectuating that right may doubtless be curtailed to some extent by an appropriately tailored law.”

It argued the current process is ripe for abuse, and sometimes results in those who are abused being deprived of their gun rights. The group also said the burden of providing a higher standard of process would be mostly minimal, though it did say providing court-appointed representation for poor defendants would be moderately burdensome.

The Cato Institute pointed to the rarity of domestic violence restraining orders being challenged as further evidence of due process issues. It argued there is reason to believe many under these orders don’t understand their true impact and can’t afford to challenge them anyway.

“While it is true that Section 922(g)(8) requires actual notice and an opportunity to participate in the hearing to determine whether a civil protective order will issue, it is doubtful whether the opportunity to participate is a truly meaningful one when there is no requirement that the respondent be informed about the true stakes of that hearing (immediate suspension of Second Amendment rights), no compelling reason for most people to vigorously challenge the issuance of an order commanding them not to do something illegal or unethical, and in some cases strong countervailing incentives to participation, including exposure to attorney’s fees,” the group wrote.

While Cato argued the deficiencies in the law could be fixed, it also said that isn’t the Court’s job.

“For now, it is enough to say that the threadbare procedures set forth in § 922(g)(8) would be considered woefully inadequate to support the abrogation of other fundamental rights such as the ability to petition the government for redress of grievances by attending a city council meeting, or accessing the Internet, or traveling about the country,” the group wrote. “The right of armed self-defense is no less important and no less entitled to an appropriate measure of procedural due process.”

The Cato Institute concluded the goal of the federal prohibition against people under domestic violence restraining orders owning guns is good but the means of getting there aren’t constitutional.

“The policy goals embodied in § 922(g)(8) are vital, and Congress should have both the opportunity and the impetus to advance those goals in a constitutionally compliant statute that is consistent both with the nation’s tradition of gun regulation and with the requirements of procedural due process,” the group wrote. “Accordingly, the judgment below should be affirmed.”

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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