McGuire Megna Attorneys, An Association of Professionals

Due Process and Guns

Due Process and Guns

Due process is a foundational part of the US legal system.  It is found specifically in the Constitution, specifically, the fifth and fourteenth amendments.  The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures.

So when President Trump responded to his own Vice President’s comments yesterday concerning gun safety legislation, it turned more than a few heads.  Trump said publicly, “Take the guns first, go through due process second.”

During a televised roundtable with lawmakers to discuss what should be done to prevent future school shootings like the one in Florida, Vice President Pence began discussing the concept of gun violence restraining orders. He noted that states like California let local law enforcement officers go to court and obtain an order to collect someone’s firearms when red flags suggest they are a potential danger to themselves or others. “Allow due process, so that no one’s rights are trampled,” Pence said.

Trump interrupted. “Or, Mike, take the firearms first and then go to court,” he said. “Because a lot of times, by the time you go to court, it takes so long to go to court, to get the due process procedures. I like taking the guns early, like in this crazy man’s case that just took place in Florida. … To go to court would have taken a long time.”

The remarks caused a stir among legal scholars and the general public as well.  While this may be Trump’s style to emphasize an important point-we do have to do something about guns and the violence surrounding their use but we can’t throw the baby out with the bath water.  Time will tell if this was more presidential style over substance but we can’t start ignoring such foundational legal principles as due process without doing serious harm to our society.

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