I Don’t Think Senator Heidi Heitkamp Understands the Concept of Due Process


In an op/ed today in the Grand Forks Herald, Senator Heidi Heitkamp tries to explain why she’s supporting new gun control legislation that would deny people their 2nd amendment rights simply by placing them on certain threat lists.

“It’s just common sense: if someone is too dangerous to board an airplane, he or she is too dangerous to buy a gun,” she says in her opening. “But right now, our laws are permitting that to happen. That’s a serious problem.”

Put me squarely in the camp of people who don’t want dangerous terrorists to own guns. I don’t want them to own cars or homes or knives or anything else either. I’d prefer for those people to be in a jail somewhere so they can’t hurt people.

But here’s the thing: We can’t let the government engage in pre-crime. The government shouldn’t be able to just put you on a list and deny you liberties like, say, boarding an airplane or exercising your 2nd amendment rights because they think you’re a threat. We have the 5th amendment, which prohibits the government from denying us life or liberty or property without due process of law, to protect against that sort of thing.

And due process means the burden of proving that you deserve to be denied your life/liberty/property is on the government.

Which brings us back to Senator Heitkamp. She writes in her op/ed that the constitution’s due process requirements are satisfied because the legislation she supports allows people who are placed on lists and denied their rights to mount a legal challenge:

Our bipartisan legislation addresses concerns about placing restrictions on the rights of Americans incorrectly placed on the “No Fly” and “selectee” lists. The legislation gives those identified on the lists due process rights, as guaranteed under the U.S. Constitution, by allowing citizens or green card holders on the lists who are blocked from purchasing firearms to appeal and get an answer from the federal government within 14 days.

If they are successful, they get attorney’s fees.

Heitkamp calls this due process, but it’s not. In the 5th amendment due process is something we have a right to due process before the government denies us our life/liberty/property. That particular order is what guarantees that we are innocent until proven guilty. We have our rights, and the burden for proving that any particular citizen should not have them is on the government.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]What if President Donald Trump decided Muslims deserved to be on one of these threat lists and denied certain rights until they prove their innocence?[/mks_pullquote]

Heitkamp and the other members of Congress supporting this legislation would turn that upside down, and put people denied their rights because of these lists in the position of having to prove their innocence. If they win they get attorney fees from the government, but only after the up-front cost of paying those legal fees. And only if they win. Against the vast legal resources of the federal government.

If you don’t believe that Heitkamp and the other supporters of this legislation are being cavalier about the constitution, consider this from another supporter. Specifically Republican South Carolina Senator Lindsey Graham who argues that we shouldn’t be such sticklers about constitutional rights because we’re at war or something:

“The Constitution’s a sacred document, but it is not a suicide pact,” said Senator Lindsey Graham, Republican of South Carolina and a gun owner. “This is not hard for me. Due process is important, but at the end of the day, we are at war.”

That, from a Republican, ought to send a chill down the collective spines of progressives who are inclined to see this legislation as a victory on gun control over conservatives and the NRA.

If we can deny people their 2nd amendment rights by putting them on a list, what other rights can we take away from them? Forcing them to prove their innocence after they’ve already been denied those rights? What’s stopping the government from expanding the criteria for being placed on the list?

What if President Donald Trump decided Muslims deserved to be on one of these threat lists and denied certain rights until they prove their innocence?

I suspect our friends on the left would have a problem with that. As well they should. It would be unjust and unconstitutional. Just as it is when we treat would-be gun owners that way.