“Nor be deprived of…”

Everybody knows that the Fifth Amendment allows one not to answer questions where then answer is self-incriminating.  The specific wording is “nor be compelled to be a witness against oneself” which is actually a much broader restriction than just “self-incrimination”.  But there’s another part to the Fifth:

“Nor be deprived of life, liberty, or property without due process of law.”

That should not be a difficult concept.  Before you can take someone’s liberty or property, let alone their life, one has to apply due process of law.  Just passing a law saying “we can take it” does not constitute due process.

This enumerated right has already been seriously crippled by things like the “no fly list” and Civil Asset Forfeiture.

Now, President Trump is apparently proposing to take another chunk out of it in the wake of the recent Florida shooting.  The argument is specious.  There was no overwhelming hurry in the case of the Florida shooter.  Given the repeated warnings that were raised before the shooter (I refuse to name him) eventually went on his rampage, there was all the time in the world for due process.  They just didn’t apply it.

There already exist laws–California’s “5150” and Florida’s “Baker Act” which allow up to a 72 hour hold on a person believed to be a threat to self or others.  That’s entirely appropriate–a brief suspension of a person’s liberty (or denial of access to property) while a matter is adjudicated.  Same principle by which a person may be arrested and held until a hearing determines whether they will continue to be held, or be released on bail, or released on their own recognizance.  Due process.

But just declaring “we’ll take their guns and deal with the due process later” is just wrong.  If you think they’re a threat then use  the existing law.  Put them in the 72 hour hold.  Make your case in an appropriate hearing, with due process, that they need to be held longer.  While they’re being held, they’re separated from any guns they own so there’s no need to seize them.  If you can make the case, with due process, then you can seize the guns.  All nicely Constitutional.

But after the precedent of “Civil Asset Forfeiture” it’s pretty clear the “take the guns and deal with due process later” is “take the guns, fail to make the case for due process, but the person never sees their guns again anyway.”

Due process is one of the cornerstones of Rule of Law.  Every assault on it strains government legitimacy and pushes us toward a terrible precipice from which there would be no returning.

Thus, we must respect due process even when it produces results we don’t like, for the alternative, the undermining of Rule of Law, leads to a far more terrible end.

3 thoughts on ““Nor be deprived of…””

  1. Frankly, I see no alternative other than to take the guns before you start in on due process.

    It is much lot harder to take due process if you haven’t already got their guns.


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