PA Bill Number: HB1661
Title: Further providing for schedules of controlled substances; and providing for secure storage of xylazine.
Description: Further providing for schedules of controlled substances; and providing for secure storage of xylazine. ...
Last Action: Act No. 17 of 2024
Last Action Date: May 15, 2024
The ABA is Committed to Due Process, Unless You're a Gun Owner :: 09/14/2017
It’s common for lawmakers to go after guns when there’s a “crisis.” The governor of the U.S. Virgin Islands ordered the National Guard to seize guns before Hurricane Irma hit, and the mayor of New Orleans did something similar before Katrina.
More broadly, lawmakers often go after guns in smaller crises, such as domestic violence situations or when there are concerns that a potentially dangerous person might misuse a gun. While that might seem like a good policy in theory, it should concern anyone who cares about due process and protecting constitutional rights. That’s why it was troubling when, at the 2017 American Bar Association annual meeting, the ABA House of Delegates formally adopted resolution 118B, which urges state governments to put in place “GVRO”s (Gun Violence Restraining Orders). GVROs enable law enforcement to search for and seize a person's lawfully possessed arms on the theory that they may pose a danger to themselves or others.
The ABA, whose primary purpose is to set academic standards for law schools and propose codes of ethics for lawyers, has never been too fond of the Second Amendment. As early as 1965, the ABA favored restrictive gun control. What is surprising about this resolution, though, is the lack of attention paid to the due process rights of gun owners. In its resolution, the ABA explicitly endorses issuing GVROs ex parte, meaning the constitutional rights of the accused could be stripped without the opportunity to defend himself in court.
The ABA has often fancied itself a bulwark of due process, fervently defending the rights of unpopular groups including enemy combatants, illegal immigrants, and war criminals. Resolution 118B, though, barely pays lip service to the due process rights of gun owners. Clearly, whatever commitment the ABA has to due process is second to political expediency, raising serious questions as to the Association’s commitment to the Constitution.
BENSON, AZ - SEPTEMBER 29: Gun shop owner Jeff Binkley displays a Glock 9mm pistol at Sarge's Sidearms on September 29, 2016 in Benson, Arizona. He said he redesigned and renamed his store just this year. Gun shops are proliferate in Arizona, which regulates and restricts weapons less than anywhere in the United States. (Photo by John Moore/Getty Images)
Ex parte proceedings always pose constitutional concerns, as they deal with the rights of a person who is not before the court. The classic situation is a domestic violence restraining order, which is what most GVROs are based on. Those are more justifiable as ex parte proceedings because they involve a balancing of the rights of the accused and potential victim, and they specifically focus on the protecting an identifiable person. Those orders are issued in certain terms and do not require a physical invasion into the life of the accused.
The GVROs urged by the ABA, however, are orders to search for and seize the arms of the person it is issued against. But most states lack any reliable way of knowing who does and does not own guns, and thus someone could suddenly find his home torn apart by police in search of weapons that may not even exist. That person may not even know about the circumstances leading to the order.
The ABA believes that a GVRO would be brought at the behest of “law enforcement, family, or other community members.” An unaccountable civilian, therefore, could report their neighbor, who, for whatever reason, is a little creepy. If a GVRO is issued, police might then show up at the neighbor's house and confiscate his guns. That creates an unacceptable potential for abuse, and increases the already substantial threat of constitutional violations.
The ABA provides three historical examples where they contend a GVRO would have prevented harm. Each example is fatally flawed. In each, the GVRO would have either needed to be broad enough to strip gun rights from third-parties, or impinge on still more fundamental rights.
