Due Process and Our Rights
Should felons be allowed to vote? Should non-violent felons be allowed to own firearms? Are red flag gun laws unconstitutional? Who defines mental illness? I'm going to answer all of those questions and more in this video from a Constitutional perspective. If you haven't watched my previous video "Who Decides What is Constitutional" I would recommend watching it as well. I'll put a link to that video in the description.
A quick history lesson - the Constitution, in Article 1 Section 8, provides a very specific list of what the federal government is allowed to do. The Bill of Rights was added later at the insistence of the anti-federalists to specifically prohibit the federal government from acting in certain areas, just in case the federal government went off the rails and started operating illegally - outside of Article 1 Section 8, which it unquestionably has. In the Bill of Rights, all citizens are granted certain protections, which after the Civil War and the 14th Amendment now apply at the state and local levels - not just at the federal level. That means that American citizens are protected from any level of government who interferes with their rights. Among these rights are the right to life, liberty, freedom, the right to own property, the right to say what you want, assemble in peaceful groups, petition the government, keep and bear arms, and vote, among others.
A good portion of the Bill of Rights exists to describe the process that must be followed for a citizen to lose these rights. The 4th Amendment, for example, ensures that your possessions and information cannot be searched or seized unreasonably, that is, without a warrant issued based on probable cause, supported by oath, and listing the specific place to be searched or the person or things to be seized. The 5th Amendment ensures that you cannot be held to answer for a capital crime without being indicted by a grand jury, or be subject to double jeopardy, or be compelled to testify against yourself, "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." The 6th amendment ensures the right to a speedy and public trial by an impartial jury of your peers, to be confronted by the witnesses against you, have the right to call witnesses to support you, and have the assistance of counsel. The 7th Amendment ensures that you have the right to a jury trial even in civil matters. The 8th Amendment protects you against excessive bail or fines and cruel or unusual punishment.
As we have just seen, there are very specific processes required to remove one's Constitutional rights. Now let's address the individual questions posed above.
- Should felons be allowed to vote? While the Constitution mentions felonies in specific circumstances, such as returning those fleeing from justice and having jurisdiction over felonies committed on the high seas, it does not mention any specific punishments based on criminal categories such as infractions, misdemeanors, or felonies. While the Constitution does not specifically prohibit denying the vote based on criminal conviction status, like it does with race and sex, for example, I do not believe that disenfranchising mass groups of citizens on that basis is in the spirit of the Constitution. The 5th Amendment states that no one may be deprived of liberty without due process of law. In my opinion, voting rights are an essential component of liberty, and no one should lose their right to vote unless subject to full due process, meaning that right is specifically rescinded by a jury of one's peers, not by a judge, as part of the sentencing phase of a proper judicial trial. While a felon can petition the court to have their record expunged and rights restored, removing those rights by default for all convictions is not prudent.
- Should non-violent felons be allowed to own firearms? This question is similar to the previous one, but the right to keep and bear arms is enshrined in a much more concrete manner than the right to vote. The right to self-defense is evident in the founding documents as a natural God-given right, and firearms, as property, is specifically protected by not only the 2nd Amendment, but also the 4th Amendment in that "no one shall be deprived of property without due process of law." This right, as all rights, including the right to life, can be removed through proper due process, but again, I do not believe that any rights should be rescinded en masse, based on a generic conviction. I believe it is up to a jury of one's peers, as the Constitution grants, to determine not only guilt or innocence, but also the sentencing, which includes a determination of what rights should be denied and for what time period. That should be a very specific list based on the type of crime committed and the individual and circumstances of the crime.
- Are red flag gun laws Constitutional? As we have seen, the right to own firearms is protected by both the 2nd and 4th Amendments to the Constitution. Since most red flag laws act to deprive one of their Constitutionally protected property prior to a criminal conviction in a court by a jury of one's peers, then such "laws" must be, prima facie, unconstitutional. The Constitution requires that a citizen accused of a crime have a right to a trial by jury to plead their case before action is taken against them. If they have not committed a crime, their property should not be targeted, just as it should not be targeted in civil forfeiture cases, which I contend are also unconstitutional. If someone is truly dangerous to the public, and has committed a crime such as making actionable threats then they should be arrested immediately and charged with the crime, thereby removing the threat. Illegally seizing their firearms leaves them free to obtain more firearms, or worse- they could use bombs or poison or fire. If they are truly violent and dangerous to the public, they should not be free. This says nothing of the extreme danger that unconstitutional red flag seizures expose the public and law enforcement to. Most law abiding citizens interpret people busting down their door not as an act of law enforcement, but as a home invasion, often resulting in deadly consequences for all parties involved.
- Who defines mental illness? Obviously, mental illness - just like physical illness is a sliding scale, and while most people don't want the violent or dangerously mentally ill to own weapons, who draws that line? The federal government has taken it upon itself to do so, through the FFL and NICS system. Whether or not this process is Constitutional is the subject for another video, but I digress. When you purchase a firearm from an FFL, the ATF form 4473 that you fill out for the background check asks if you have ever been adjudicated as a mental defective or have you ever been committed to a mental institution. That requires a formal commitment or finding by a court, board, commission, or lawful authority. A formal commitment or finding based on specific criteria as determined by a jury of your peers, i.e. due process, is one thing. But a finding by a "lawful authority" is quite another. Whatever that means, it's certainly not Constitutional. Neither is what the Social Security Administration did in 2016, reporting all Social Security recipients who assigned another person, like a family member, the ability to cash their check for them, as prohibited from purchasing a firearm in the NICS instant check system. Veterans Affairs has reported veterans who allow others to assist in their financial affairs have reported those veterans as prohibited as well. With federalized medical records as a result of the ACA, citizens could be added to NICS without their knowledge if they happen to be prescribed the wrong medication by their doctor. It's a slippery slope when we start ignoring the Constitution and stripping away fundamental rights, particularly in the case of the Second Amendment which was added to the Constitution by the anti-federalists to ensure that the federal government could never be in a position where it, or a standing army, could overpower the citizens.
Remember that it is only through the due process of a jury of your peers that rights can legally be removed.
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