I've been writing my senior senator (John Cornyn) about his efforts on this bill, and have been underwhelmed (to put it nicely) by his form letter replies.
John was tasked with heading a committee that would seek to "compromise" on guns and gun related things.
We'll sidestep the fact that it appears our entire gaggle of elected officials no longer understand what the word "compromise" means, and get straight to what they did.
The proposed bill passed the senate with 15 republican votes(06/23) around 10pm. When it hit the house the following day, it was passed within hours of opening the morning session (06/24).
The senate gave almost no time for a reading of the bill, nor for any amendments to it.
The house debated for 2 hours, changed nothing, and passed it.
Now we, the plebeians, finally get to see the bill. It will likely be the first time most senators/representatives have seen it too.
This is a link to the bill's text on congress.gov: Bipartisan Safer Communities Act
I've not read through the whole thing yet. But I did look for the part dealing with "red flag laws", or what the bill calls "extreme risk protection orders". (SEC. 12003)
I dare say... and I know I'll catch flak for this, but it's not as bad as it could have been.
Firstly, the bill does NOT establish red flag laws. None. What it does do is tie grant money to states who implement them according to the design in the bill (in essence, bribery with our own money). That's where it gets interesting.
Any order seeking grant money from this program MUST meet minimum standards. I'll do my best to parse these down to their summary points.
1. "pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States"... "Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses"
Explanation: Before and after any confiscation, a person still retains all rights to an in person hearing (no ex parte hearings), must have a fair judge, must be presented with all evidence against them, can present their own evidence, and must be able to confront their accuser/witness (this alone could prevent accusations, as claimants cannot remain anonymous). (personal note: I was SHOCKED to see this as a requirement, as it is NOT how most states with such laws currently conduct them.)
2. Right to an attorney to represent you, but at your own expense (sorry poor people, I guess you're screwed) (personal note: I found that many states actually do expect a defendant to pay for their public defender)
3. "pre-deprivation and post-deprivation heightened evidentiary standards and proof which mean not less than the protections afforded to a similarly situated litigant in Federal court or promulgated by the State’s evidentiary body, and sufficient to ensure the full protections of the Constitution of the United States"..."The heightened evidentiary standards and proof under such programs must, at all appropriate phases to prevent any violation of any constitutional right, at minimum, prevent reliance upon evidence that is unsworn or unaffirmed, irrelevant, based on inadmissible hearsay, unreliable, vague, speculative, and lacking a foundation"
Explanation: Before and after any confiscation, the burden of proof and evidentiary requirements must meet a higher standard. No allowance for uncorroborated claims, hearsay, speculation, or vagueness. (personal note: This could prove to be an exceptionally high bar if actually held to.)
4. "penalties for abuse of the program." (not specific, not good enough)
If anyone reads this part differently, or thinks they see language that could be abused, point it out.
I'm not asking for "they just won't follow the law" type replies. I'm speaking solely from a legal language perspective. Is there a loophole states could take advantage of to violate the attempted due process right protections mentioned, and still get funding?
We know there will likely be states that just scoff at the grant money and implement their own versions which violate all manner of due process. I'm not discussing those.
Is this just as bad, or worse than you all thought, or is it more reasonable that you expected?
IF FOLLOWED AS WRITTEN, it does remove my previous argument about violating due process rights.
It's still an overt attack on 2A rights, however.
Tear apart the rest of the bill and see what you can find. Of additional special note is the new alteration to defining what it means to be "engaged in business" when it comes to firearms sales. That is ripe for abuse.
In any case, I'll be funding and campaigning for John Cornyn's primary challenger in 4 years.
I'm done dealing with him.
John was tasked with heading a committee that would seek to "compromise" on guns and gun related things.
We'll sidestep the fact that it appears our entire gaggle of elected officials no longer understand what the word "compromise" means, and get straight to what they did.
The proposed bill passed the senate with 15 republican votes(06/23) around 10pm. When it hit the house the following day, it was passed within hours of opening the morning session (06/24).
The senate gave almost no time for a reading of the bill, nor for any amendments to it.
The house debated for 2 hours, changed nothing, and passed it.
Now we, the plebeians, finally get to see the bill. It will likely be the first time most senators/representatives have seen it too.
This is a link to the bill's text on congress.gov: Bipartisan Safer Communities Act
I've not read through the whole thing yet. But I did look for the part dealing with "red flag laws", or what the bill calls "extreme risk protection orders". (SEC. 12003)
I dare say... and I know I'll catch flak for this, but it's not as bad as it could have been.
Firstly, the bill does NOT establish red flag laws. None. What it does do is tie grant money to states who implement them according to the design in the bill (in essence, bribery with our own money). That's where it gets interesting.
Any order seeking grant money from this program MUST meet minimum standards. I'll do my best to parse these down to their summary points.
1. "pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States"... "Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses"
Explanation: Before and after any confiscation, a person still retains all rights to an in person hearing (no ex parte hearings), must have a fair judge, must be presented with all evidence against them, can present their own evidence, and must be able to confront their accuser/witness (this alone could prevent accusations, as claimants cannot remain anonymous). (personal note: I was SHOCKED to see this as a requirement, as it is NOT how most states with such laws currently conduct them.)
2. Right to an attorney to represent you, but at your own expense (sorry poor people, I guess you're screwed) (personal note: I found that many states actually do expect a defendant to pay for their public defender)
3. "pre-deprivation and post-deprivation heightened evidentiary standards and proof which mean not less than the protections afforded to a similarly situated litigant in Federal court or promulgated by the State’s evidentiary body, and sufficient to ensure the full protections of the Constitution of the United States"..."The heightened evidentiary standards and proof under such programs must, at all appropriate phases to prevent any violation of any constitutional right, at minimum, prevent reliance upon evidence that is unsworn or unaffirmed, irrelevant, based on inadmissible hearsay, unreliable, vague, speculative, and lacking a foundation"
Explanation: Before and after any confiscation, the burden of proof and evidentiary requirements must meet a higher standard. No allowance for uncorroborated claims, hearsay, speculation, or vagueness. (personal note: This could prove to be an exceptionally high bar if actually held to.)
4. "penalties for abuse of the program." (not specific, not good enough)
If anyone reads this part differently, or thinks they see language that could be abused, point it out.
I'm not asking for "they just won't follow the law" type replies. I'm speaking solely from a legal language perspective. Is there a loophole states could take advantage of to violate the attempted due process right protections mentioned, and still get funding?
We know there will likely be states that just scoff at the grant money and implement their own versions which violate all manner of due process. I'm not discussing those.
Is this just as bad, or worse than you all thought, or is it more reasonable that you expected?
IF FOLLOWED AS WRITTEN, it does remove my previous argument about violating due process rights.
It's still an overt attack on 2A rights, however.
Tear apart the rest of the bill and see what you can find. Of additional special note is the new alteration to defining what it means to be "engaged in business" when it comes to firearms sales. That is ripe for abuse.
In any case, I'll be funding and campaigning for John Cornyn's primary challenger in 4 years.
I'm done dealing with him.
