Justice Scalia on the Second Amendment: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them…”—District of Columbia v. Heller (2008)
The National Rifle Association is right to support President Trump’s call for state-level Emergency Risk Protection Orders (ERPOs) – under which a court can take guns in rare situations for just a few days when there is evidence that a person may be on the verge of extreme violence – because, if written properly, such temporary measures are consistent with the original meaning of the Constitution’s Second Amendment and Due Process Clause.
President Trump supports states’ passing laws to allow for ERPOs. Details are still being developed and so reports may be updated as legislative debate begins. But the basic concept is that if a family member informs law enforcement that their loved one is spiraling out of control into violence, and swears an affidavit giving the details – under penalty of perjury, so the informant can go to prison if they are lying – then a judge could issue an ERPO to temporarily confiscate weapons in that person’s possession.
Within a very short period, perhaps just three days, the person whose weapons were seized could demand a court to review the ERPO. The burden would be on the government to show, perhaps by “clear and convincing evidence” (a very difficult standard to meet) – that the person truly is at least temporarily a danger to himself or to others. If so, then the police can continue to hold the weapons while further proceedings take place.
If the government cannot produce that much evidence, then the weapons must be immediately returned to the owner.
This is very different from a regime like California’s law. In California, an ERPO (called a “gun violence restraining order” in that state) requires only “substantial evidence” – meaning you have to show something significant, but far less than a 51 percent likelihood – that a person is dangerous. If that minimal evidentiary standard is met, then police can take away all weapons from that person for 21 days. After those 21 days, then it can be extended for a full year if the petitioner presents “clear and convincing evidence” that a person is dangerous, and possibly extended even further.
The NRA strongly opposed as unconstitutional California’s ERPOs, but support states adopting ERPO laws as outlined by President Trump. (These laws are properly left to the states under the Constitution’s Tenth Amendment as part of a state’s core police powers over public safety and public health. The Constitution gives no such powers to the federal government.)
How does President Trump’s recommendation square with the Constitution, which the NRA has fought to protect since 1871?
The Second Amendment includes, “the right of the people to keep and bear Arms, shall not be infringed.” The First Amendment has similar language in its Free Speech Clause, which provides, “Congress shall make no law … abridging the freedom of speech.”
Both the First and Second Amendments were written by the First Congress in 1789 and ratified by the states in 1791 as parts of the original Bill of Rights to the U.S. Constitution. Neither of them was an absolute right. For any principled constitutional originalist, the question would be what it meant in 1791 to “abridge” the “freedom of speech” or “infringe” upon the “right to keep and bear arms.”
The Supreme Court over the decades has looked at various kinds of speech that were not protected as part of the “freedom of speech” in 1791, so restricting or banning such speech is not “abridging” First Amendment rights. The kinds of speech that are not protected by free speech rights include: perjury, defamation (slander and libel), advocating lawlessness, obscenity, false statements to law enforcement, “fighting words,” child pornography, fraud, threats, and imminent threats to public order.
So too with the Second Amendment. The right applies only to law-abiding and peaceable adult American citizens. As Justice Antonin Scalia wrote in his historic Supreme Court opinion in District of Columbia v. Heller (2008), “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope is too broad.”
The Second Amendment did not to apply to foreigners, children, dangerous criminals, or dangerous, mentally defective people. It also applies only to “arms,” not to any sort of explosive device (called “ordnance” in 1791), devices that an average adult could not carry (“bear”) over significant distances, or to certain types of bizarre weapons that inspired fear in average people (called “affrighting” in the eighteenth century).
Scalia noted in Heller that there were “longstanding prohibitions” on gun ownership that were consistent with the Second Amendment, adding that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”
The challenge is determining what sort of people are not “peaceable.” It is easy to determine if a person is a citizen or an adult. It is slightly more difficult to define “law-abiding,” a term that should definitely exclude violent felons but include people who in modern terms write a bad check or get a speeding ticket. But many people agree on certain standards for lawful conduct, which point to the constitutional line separating law-abiding people from dangerous criminals who have forfeited their gun rights.
ERPOs are based on determining that a person might not be “peaceable.” However, the Due Process Clause of the Fourteenth Amendment commands, “No State shall … deprive any person of life, liberty, or property, without due process of law.”
In other words, a person can be deprived of their rights and their property, but only after “due process of law” that satisfies the U.S. Constitution. It is a very demanding standard to meet.
The task is identifying people who are truly dangerous but have never been convicted of a disqualifying crime. Truly dangerous people have no Second Amendment rights, but a person who is merely depressed because of a serious illness or the death of a loved one and is seeking help from a counselor is not constitutionally disqualified as a menace. The Second Amendment continues to apply to people going through a tough time, but who still understand and embrace the difference between right and wrong.
As Judge Alice Batchelder of the U.S. Court of Appeals for the Sixth Circuit wrote in her concurring opinion in the Second Amendment case Tyler v. Hillsdale County Sheriff’s Department (2016), “By examining the Founding generation’s conception of ‘right,’ as well as the principles of Founding-era mental-health law, we can come to a quite definite conclusion in this case.”
Batchelder explained that in 1791, “according to Founding-era legal definitions, an insane person was someone who had lost his reason.” She continued, “An insane person was similar to a minor who had not yet attained the age of reason – both were unable, by definition, to exercise their rights because rights could, in the central case, be exercised only by those possessing reason.”
“This understanding was well reflected in Founding-era legal doctrine,” Batchelder added, then explained the various laws and procedures by which a person’s rights could be restricted in 1791 because that person was experiencing serious mental or emotional illness.
“Significantly, such deprivations were not once-for-all,” she noted, then described the process whereby people with mental illnesses could be restored to all their rights as American citizens.
“It might be argued that guns should be subject to different rules because they are so dangerous,” wrote Batchelder. “But while the dangerousness of guns may be relevant when considering what sort of showing someone must make to get his gun rights back, that fact cannot justify treating gun rights as fundamentally different from other rights.”
She quotes Justice Samuel Alito, who wrote in the only other historic Supreme Court case to date on the Second Amendment, McDonald v. Chicago (2010), that the Second Amendment is not “a second-class right, subject to an entirely different body of rules than other Bill of Rights guarantees.”
“Less obvious to the contemporary judicial mind are the Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second Amendment,” Batchelder opines on how to consider gun rights in light of mental illness. “What is not debatable is that we … are not philosopher kings empowered to ‘fix’ things according to the dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the legislatures of this country happen to pass.”
While the details of these ERPO laws must be examined carefully, President Trump’s proposal and the NRA’s support for it may very well result in state laws that are completely consistent with the Constitution’s rights to bear arms and due process, and America’s almost 100 million gun owners should be satisfied that their rights are fully protected by a president and a flagship organization determined to uphold those rights.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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