Yesterday, President Trump stated that “[i]t takes so long to go to court to get the due process procedures, I like taking the guns early. Take the guns first, go through due process second” seemingly without consideration for what he was proposing or the impact on his and Vice President Pence’s Second Amendment rights.
What am I talking about?
Well, someone needs to be living under a rock to have missed all the unsubstantiated allegations regarding the President’s mental health during his candidacy and presidency. In fact, there is even a book by Brandy X Lee – The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President – in which these putative experts contend that President Trump suffers from varying and differing mental health conditions. More recently, Joy Behar claimed that Vice President Pence was mentally ill, because of his religious convictions in speaking with Jesus.
But what does this have to do with the President’s comment?
Well, he seemingly ignores the fact that absent due process, both his and Vice President Pence’s Second Amendment rights could be stripped, absent even their knowledge or opportunity to be heard, because of someone’s – potentially vindictive and even baseless – views or beliefs. See, that is what due process protects against – or at least is suppose to protect against. While we can argue about the level of due process and whether the courts place appropriate consideration on the evidence before depriving someone of a constitutional right, the right to be heard against allegations is a fundamental tenet of our Founding Constitutional Agreement.
As our viewers know, I recently litigated a case in the United States District Court, Western District of Pennsylvania, where Judge Kim Gibson found that a Section 302 evaluation under the Pennsylvania Mental Health and Procedures Act was not sufficient to trigger a federal prohibition, pursuant to 18 U.S.C. 922(g)(4), due to the lack of due process provided the individual. There, like what is seemingly being proposed by the President, the Government contended that an individual was stripped of his right to Keep and Bear Arms – an inalienable right that is acknowledged by the Constitution – as a result of a doctor merely signing a form, in the absence of the individual being provided any of the tenets of due process, including having an opportunity to confront those speaking against him/her. More specifically, the individual is not (1) provided an opportunity to cross-examine witnesses nor have a witness testify on his/her behalf; (2) provided an opportunity to challenge evidence nor submit evidence in support of his/her position; (3) provided counsel; or (4) provided a neutral arbiter, since the doctor is paid by the hospital and there are, unfortunately, financial incentives for a hospital to keep an individual for further evaluation.
Could you imagine the outrage if there was a proposal that would permit someone, even the President, to be stripped of his/her First Amendment rights, in the absence of due process, because someone believed that the person suffered from a mental illness, regardless of how baselessness of the claim? Speaking of which, why do we permit a person who has been involuntarily committed to be a reporter? And with all the talk about raising the age to 21 to purchase any firearm, why aren’t we talking about equal application of the law to all constitutional provisions? If its okay to restrict an individual’s constitutional right to Keep and Bear Arms, why aren’t we also restricting his/her First, Fourth, Fifth, and Sixth Amendment rights, until the person is 21? That’s right, such would be unconstitutional and as Justice Thomas recently stated in his dissent to the denial of certiorari in Jeff Silvester, et al. v. Xavier Becerra, Attorney General of California
it seems, rights that have no basis in the Constitution receive greater protection than the Second Amendment, which is enumerated in the text. Our continued refusal to hear Second Amendment cases only enables this kind of defiance.
Because I still believe that the Second Amendment cannot be “singled out for special—and specially unfavorable—treatment,” I respectfully dissent from the denial of certiorari. (citations omitted)
Given the constitutional issues involved and the likelihood for abuse, Mr. President, I respectfully implore you to reconsider your remarks and thereafter, come out in support of all of our constitutionally acknowledged rights, including opposing any proposal, which would permit any constitutional right to be stripped from an individual in the absence of due process.