Revisiting due process and firearms

Perhaps my expectations are too high. I don’t think they are. Just as I would expect a programmer to understand the fundamental concepts of the languages they use, I would expect a lawyer to understand the fundamentals of law.

To this end, I would expect a practicing attorney to be knowledgeable of procedural due process. After all, due process applies both to civil and criminal litigation. So to encounter an attorney that gets the concept wrong just leaves me wondering.

Recently the governor of Connecticut, Dan Malloy, attempted to defend the use of the Federal government’s “no-fly list” as a “no-gun list”. I’ve been against this for the simple reason that no person is included on the “no-fly list” as a result of any kind of due process:

The biggest problem with excluding those on watch lists from being able to purchase firearms is the ability of the government to create lists indiscriminately, and add people to these lists with virtually no oversight.

If you actually value due process — which I’m convinced most people DON’T — then you’ll oppose this in its entirety.

I don’t say this lightly. I’ve written here before (here, here, here, here, and here) how many are willing to throw someone else’s due process rights under the bus. In the comments section to a Huffington Post article mentioning Malloy’s support, I said this:

The Fourteenth Amendment requires that before a person can be “deprived of… liberty”, they first must be subject to “due process of law”. “Due process” requires that the person being subjected to that due process be able to exercise their rights under the Fifth and Sixth Amendments, such as the right to convene a jury, call witnesses in his defense, cross-examine witnesses against him, and have an attorney to assist in that defense, and have all evidence against him examined by the jury to determine if the charges are proven beyond reasonable doubt.

Without the ability to exercise the Fifth and Sixth Amendment rights, the due process requirement is not met. So adding someone to an arbitrary government list, then using their inclusion to that list to deny that person their Second Amendment rights is also a violation of their Fourteenth Amendment rights and unconstitutional on its face. Period.

What I’ve outlined above is the essence of procedural due process. In short, before the government can enact any kind of deprivation of liberty against you, they must give you a chance to defend yourself. You have no such chance when it comes to these “no-fly” lists and other watch lists the Federal government has.

An attorney from Vermont replied:

Your legal analysis is not correct. Due process likely requires some process to challenge inclusion in the no-fly list, but not the determination that a person is, in fact, on the list. To be constitutional, the due process does not necessarily have to include all of the provisions you cite, which are those afforded people charged with crimes. There are existing provisions that allow people to challenge being placed on the no fly list. A challenge to that process is being litigated, but there is no final outcome to that case.

This isn’t accurate, but it’s not too far off. Instead the attorney has his words crossed. And unfortunately in my reply, I wasn’t entirely correct either, as I used the wrong term when describing a legitimate protection from the government. See if you can spot where I want wrong:

You have to be informed before you are added to the list that you may be added to the list. And you have to be given the opportunity to challenge that inclusion. In that challenge, the government must justify why you are to be included, and you must be given the opportunity to challenge that justification and appeal the result if it is not in your favor.

This is why we don’t put “alleged” child molesters on the sex offender registry. Conviction in a criminal court is required first.

What requires the “determination that a person is on the list” is the writ of habeas corpus. A person always has the right to challenge any action against them by the government — habeas corpus plus the First Amendment right to petition the government for a redress of grievances.

So if a person is on the “no-fly” list, they have the right to demand the government say why they are on the list — either directly or by way of the Court. And they have right to challenge being on the list, and the right to challenge before they are added to the list.

But…. that only comes into play if the list is being used to deprive liberties. And given we’re talking about this list being used to deprive Second Amendment rights, Due Process and habeas corpus *absolutely* come into play.

Habeas corpus. It’s all too easy to misuse legal terms. Instead what I was describing wasn’t the privilege of habeas corpus, but actually the protection against attainder.

From Article I, Section 9 of the Constitution: “No bill of attainder… shall be passed”. While this prohibition was directly on Congress, it by proxy limits the executive as well. A no-fly list cannot exist without congressional approval anyway. And for the Federal government to use them to deprive liberty is an attainder, a punishment without trial. And the right of due process first mentioned in the Fifth Amendment reinforces the ban mentioned in Article I, Section 9, while directly extending the prohibition to the Executive Branch.

No denial or deprivation of liberty may occur without due process of law. The Constitution is quite clear on that. Meaning the use of these lists of attainder, since they are already being used to limit someone’s liberties absent due process, to limit someone’s access to their Second Amendment rights clearly violates the Constitution.