Tuesday, June 21, 2016

Democrats for Denying Due Process

Immediately after the horror show in Orlando, the call went out from the usual suspects to do something about controlling guns. The first thing that came to mind, when it was shortly thereafter discovered that Omar Mateen, a second generation American citizen, a registered Democrat, a Hillary supporter, and quite likely a gay man had been investigated at least twice by the FBI for terrorist connections and cleared, was to propose to ban anyone, including American citizens on the terror watch list or the no fly list, or any of the various lists the government keeps on all of us, from buying guns. Never mind it wouldn't have stopped Mateen, he had passed his checks and was no longer on any such list.

There's only one thing between the Democrats and doing this, and that's the Due Process clauses of the 5th and 14th amendments:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, 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.
As Joe Manchin (D- WV) noted:
 The latest attempt has been incredibly direct, with Sen. Joe Manchin, D-W.Va., declaring that "due process is what's killing us right now."

Manchin's comments came in response to the Orlando terrorist attack that killed 49 people and injured 53 more. Speaking on MSNBC's "Morning Joe," Manchin said that due process was keeping legislators from banning those on the Terrorist Watch List from purchasing guns.

"The problem we have, and really the firewall we have right now, is due process," Manchin said Thursday. "It's all due process."

Darn that pesky due process and its constitutional protections!
Charles Cooke catches Harry Reid in flagrante: Guns and the no-fly list: Whatever happened to due process?
When Reid and his accomplices argue that nobody on the “terror watch list” should be permitted to buy a gun, they are saying in effect that the government should have the power to deprive you of your enumerated constitutional rights purely by entering your name into a database.

This is unacceptable. Even if the “terror watch list” were transparent and well-regulated, there would be serious philosophical problems with such an arrangement. But for the government to propose using a system that is as opaque, as messy, and as downright bloated as is this one . . . frankly, it beggars belief.
Yes, the pesky 2nd amendment gives US citizen the liberty, the right as it were, to keep and bear arms, which isn't much good without the means to buy them.

And just what do we mean by due process, which is not, itself, clearly defined in the constitution (apparently it was considered too basic to explain; a certain naivete on the founders part)?
The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority." These rights, which apply equally to civil due process and criminal due process, are:
  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.
Now, consider how one gets on the terror watch list, or the no fly list. Are any of these tests met? No. A government bureaucrat, at the request of, who knows? makes a determination that you may be a dangerous person, and your name is added to the list. No tribunal, no notice, no chance to rebut, no chance to see evidence, no right of cross examination, no right of counsel, no public record, and no findings. And it might just be a name you share with some other person. This was amusing when Ted Kennedy found he was on the no fly list. It took a US Senator 3 weeks to get that cleared up. But what about the 8 year old Cub Scout flagged for the no fly list? His parents don't have the pull of US Senator.

Donald Trump, in his usually inclusive, sloppy style, has been all over both sides of the issue: I’d like to see people on terror watch lists barred from buying guns, but…
He’s aware of the due-process issue, as you’ll see, but he’s cagey about how committed he is to it. Would he veto a Democratic bill that let the Justice Department summarily strip watch-listers of their gun rights or would he sign it while mumbling half-heartedly that he would have preferred legislation with some right to appeal built in? As usual when he’s outside his build-the-wall/bar-the-Muslims comfort zone, he won’t say clearly what he intends to do.
“We have to make sure that people that are terrorists or have even an inclination toward terrorism cannot buy weapons, guns,” Trump told ABC News Chief White House Correspondent Jonathan Karl in an interview to air Sunday on “This Week.”
Asked by Karl if his position is that those on the no-fly or terror watch list should not be able to purchase a gun, Trump responded, “I’d like to see that, and I’d like to say it. And it’s simpler. It’s just simpler.”…
“Now, but what they say, and I understand that also, is the Second Amendment, they’re depriving them of those rights. And that it could be that people are on there that shouldn’t be on, you know, etc. etc.,” Trump said.
“I’ll talk to them,” Trump added. “I understand exactly what they’re saying. You know, a lot of people are on the list that that really maybe shouldn’t be on the list and you know their rights are being taken away so I understand that.”
He understands the due-process objection but so do a lot of Democrats, I’m sure, who’d nonetheless prefer to give the DOJ the final say here. I think he’s destined to adopt the GOP/NRA position for the simple reason that he can’t afford any more turmoil on the right at this point.
Republicans gave Democrats a chance to put a gun buying ban on the terror watch list with due process protections added, and predictably the Democrats preferred an issue to a solution: Democrats Tanked Gun Control To Up Their Election Chances
Senate Republicans agreed to vote on four gun control proposals—two offered by Democrats and two offered by Republicans. The Democratic proposals included Sen. Dianne Feinstein’s bill linking a terrorism watch list to a gun sales ban. On the Republican side, Sen. John Cornyn also offered legislation that would link a terrorism watch list to a gun sales ban, but his version added due process protections for Americans who are put on the list. The other two proposals expanded the National Instant Criminal Background Check System, although the Republican version did not go as far as the Democratic version. For a brief moment it seemed as if the Senate would take some kind of action.

Then all four gun control proposals were voted down because of the Democrats.

Rather than agree to the incremental gun control measures Republicans proposed, the Democrats chose to pass no gun control legislation at all. At some point after loudly demanding legislation for more than a week, Senate Democrats decided it would be better for their reelection prospects that no gun control bills pass the Senate during the election season. Their decision was hypocritical, unprincipled, and pure politics.
At this point, I would believe that no fly list is a violation of the due process, denying you the liberty to fly on a commercial carrier, with no adjudication, presentation of evidence, opportunity to rebut, etc. If they want to put US citizens on a list to deny their rights, at least go through the proper motions.

No comments:

Post a Comment