The recent mass shootings have triggered House Democrats to initiate gun-control legislation despite certain resistance by the Republican-majority Senate.
And then there’s that little problem with the Constitution, which Rep. Doug Collins, R-Ga., pointed out on Tuesday as the House Judiciary Committee started working on gun-control measures.
The first plan up for discussion was H.R. 1236, the Extreme Risk Protection Order Act of 2019, which would establish “red flag” laws that some states already have.
The laws would effectively would allow a judge to remove a gun-owner’s Second Amendment rights without due process. Instead of a standard of probable cause, a judge can apply the subjective determination that the owner represents some “danger.”
“Like you, I am concerned about addressing this very important issue,” Collins said in remarks prepared for the hearing.
“From addressing the incidence of mass shootings to combating the scourge of firearm violence plaguing our urban communities, I stand ready to work with you on sensible solutions that could actually prevent these atrocities.
“What I am not willing to do is support legislation that will do nothing to make us safer and simultaneously infringes on the rights and liberties guaranteed by our Constitution. Unfortunately, all three bills we are considering today do just that.”
He told majority Democrats on the committee that H.R. 1236 “is flawed in far too many ways to be worthy of this committee’s support.”
“Five months ago, our distinguished chairman gave a lengthy interview to one of his hometown papers. He declared, ‘My original motive in politics, from the time I was probably 12 years old, was civil rights and civil liberties and due process[.] I have always concentrated on them, and that has never changed.’
“I’m not sure what has changed in the five months since that interview, but the bill before us today has serious due process problems. Namely, this bill allows for the confiscation of an individual’s firearms without notice or an opportunity to be heard. Even more egregious is the fact that this ex parte determination can be made when a judge finds there is a reasonable cause to believe the individual poses a danger to himself or others by having access to a firearm.”
Collins explained the legal problem:
“Reasonable cause is not even probable cause. It is certainly less than clear and convincing evidence. Do we really want to surrender Americans’ constitutional rights to such a low standard without giving those citizens notice or an opportunity to be heard? What other rights are my colleagues on the other side willing to sacrifice so easily?”
Further, he explained: “The ex parte proceeding standards are not the only flaws found in this bill. For a permanent order, the court must find by a preponderance of the evidence that the individual poses a danger to himself or others by having access to a firearm. We don’t convict people of petty crimes by a preponderance of the evidence, but my colleagues want to take away constitutional rights with merely a finding of preponderance of the evidence? Ours is the committee charged with protecting due process and every constitutional right, not eviscerating them.”
The preponderance of evidence standard is the lowest used by courts. It simply means a judge thinks it’s more likely than not, meaning, on a percentage scale, someone who is thought to have a 50.001 percent chance of creating a disturbance could lose his or her constitutional rights.
“The defects in this bill continue to emerge,” Collins said. “Once the court finds a person too dangerous to possess a firearm, what does the bill indicate the court should do? Does it provide for some sort of incapacitation, detention, evaluation or provision of mental health services? No, the bill is silent. It does nothing to address the person’s possible illnesses or instabilities, even though a court just determined him or her dangerous enough to be stripped of a fundamental constitutional right. I suppose we should all just hope and pray such dangerous individuals don’t have access to knives, automobiles, accelerants, explosives or any other item to harm themselves or others.”
He explained the bill also allows someone who doesn’t know the target to file a complaint.
“It’s unthinkable that this bill doesn’t require a law enforcement officer to independently substantiate the claim and that there are no penalties for making a false claim against someone,” he said.
He wondered why Democrats on the committee were so “eager to abandon the bedrock of our constitutional freedoms.”
USA Today noted few Americans believe Democrats will impose gun control.
The USA TODAY/Suffolk University Poll found not even a quarter of the population is counting on Congress for significant gun control.
In the Senate, Majority Leader Mitch McConnell said the senators probably won’t even vote on a bill unless it’s clear President Trump supports it.
