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It can be argued that the only personal property specifically protected by the U.S. Constitution is firearms.
While the Fourth Amendment promises, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” it does specifically allow for such seizure if the “i’s” are properly dotted and the “t’s” correctly crossed.
Similarly, the Fifth Amendment guarantees against a person being “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” but again, it recognizes a process for such deprivation and taking.
The Second Amendment contains no such provisions for circumvention. The Second Amendment states that, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
While I would not argue that the Second Amendment precludes society from ever restricting arms in any circumstance – such as to inmates in prison or briefly while police sort out the good guys from the bad guys at an incident – I do believe that it places firearms in a very special and protected place under law; a place where any deprivation of the right should receive special scrutiny and careful consideration. But our judicial system seems to take the exact opposite view. In any legal issue, firearms are typically the first thing taken away and the last thing returned – if they are ever returned at all.
A couple of recent cases renewed my concern about the attitude that the courts routinely exhibit toward guns:
In Nevada last October, Al DiCicco made the mistake of taking political speech a bit too far when he expressed his dislike for a local Family Court judge by backing his truck into one of the judge’s reelection campaign signs. A local police officer happened to see the vandalism, and Al found himself under arrest for a gross misdemeanor of injury to other property. During the arrest DiCicco’s truck was searched, and he was cited for having his lever-action rifle loaded in the truck. The police seized the rifle and also seized a .32 caliber pistol, which was legally carried.
After resolution of the citations, the judge declared that she was not going to return DiCicco’s guns – even though Nevada law does not provide for forfeiture of the rifle under the circumstances and the pistol was not connected to any crime.
Now DiCicco, who is disabled and lives on a small, fixed income, is left with the option of either allowing his guns to be illegally forfeited or trying to scrape together the funds to stage a challenge to the unlawful taking.
In a different incident that illustrates the same issue, Joe Winslow, a member of the Quartzsite, Arizona Town Council, has sworn out a protective order complaint against a local political activist who has been strenuously objecting to what the activist claims are the Council’s heavy-handed and legally questionable activities.
In a hearing the council member compared the activist and his associates to terrorist groups like Germany’s Baader-Meinhof gang and Peru’s Shining Path, saying that he believed that they were moving from complaining to confrontation and that the next step would be violence. He requested that the judge ban the man from City Hall and prohibit him from possessing firearms or ammunition. The judge granted his request.
Consider the ramifications of this court order. A local politician convinced a court to forbid that person from being within the immediate vicinity of this public servant and to suspend the constituent’s constitutional rights indefinitely. This, because he didn’t like being confronted with tough questions from that constituent.
The constituent could face serious criminal sanctions for possessing a firearm for any reason in any location. He could go skeet shooting in Virginia, 2,000 miles away from Councilman Winslow, and be cited for violating the terms of the protective order. He could go on a bird hunting trip to Argentina and face criminal prosecution when he gets back home.
These are but two among thousands of examples of courts displaying utter disdain for the Second Amendment and the individual right to arms.
I personally have had to do battle with a judge over return of a firearm that was stolen from me and used in a crime. The judge was not going to return my property and thus victimize me twice. The gun in question happened to be a .22 rifle my father had given to me for my tenth birthday and is one of my most treasured possessions. I had anxiously awaited the conclusion of the criminal proceedings so my rifle could be released from evidence, but when the day finally came, the judge declared that the gun was to be forfeited as if it belonged to the criminal. Were it not for the assistance of a city prosecutor, I don’t think I would have been able to recover that precious family heirloom. And this happened at a time when I was a very well known member of the business community and had just come within a few hundred votes of winning a seat in the state legislature. I seriously doubt that someone less well-connected could have gotten the gun back.
The primary mission of government is to ensure the blessings of liberty to the citizens. The primary mission of the courts is to uphold the rule of law toward that end. For the courts to dismiss core tenants of the law and disregard a fundamental, enumerated right as if it were a government-granted privilege is unacceptable and needs to be addressed. We elect these judges or elect the people who appoint them. It’s up to us to hold them accountable for their lack of respect for the Constitution.