Trump's `Take the Guns First' Remark Sparks Due Process Debate
(Bloomberg) -- President Donald Trump hit a nerve with gun-rights enthusiasts this week after suggesting firearms should be confiscated from potentially dangerous people without a court’s approval, remarks that raised concerns among conservatives about his respect for the concept of due process.
“I like taking the guns early,” Trump said during a televised meeting on gun laws at the White House on Wednesday. “To go to court would have taken a long time.”
His remarks cut to a visceral fear of the most ardent supporters of gun rights: the government seizing weapons from law-abiding citizens. It’s the basis for the defiant bumper-sticker slogan the NRA popularized: “I’ll give you my gun when you pry it from my cold, dead hands.”
Trump’s dismissal of due process prompted calls to Congress and a snap visit to the White House late Thursday by top officials of the National Rifle Association. Chris Cox, the group’s top lobbyist, assured supporters in a tweet after the meeting that Trump had backpedaled and supports “the Second Amendment” and “strong due process.”
White House spokespeople didn’t respond Friday to inquiries about Trump’s Wednesday remarks or Cox’s statement.
David Kopel, a gun-rights supporter who is research director at the Independence Institute in Denver, mocked Trump’s position as “lose your rights today, followed by due process that will take years to resolve.”
The incident also revealed an exceedingly rare divide between Trump and Vice President Mike Pence. The former Indiana governor, a social conservative with an “A” voting record from the NRA, tried to nudge Trump away from provoking the gun lobby’s supporters during Wednesday’s White House meeting as participants discussed so-called gun violence restraining orders.
“Allow due process, so that no one’s rights are trampled,” Pence said during the meeting, in which a bipartisan group of lawmakers discussed a legislative response to school shooting that killed 17 people last month in Parkland, Florida. “But the ability to go to court, obtain an order, and then collect not only the firearms, but any weapons in the possession of that individual.”
Trump disagreed. A party to hundreds of lawsuits, he argued it is too risky to wait for a court to act when a potentially dangerous person has a gun.
“Or, Mike, take the firearms first and then go to court,” Trump said. “You could do exactly what you’re saying, but take the guns first, go through due process second.”
The suggestion drew sharp rebukes from his own party.
Senator Ben Sasse, a Republican from Nebraska, said in a statement that “we have the Second Amendment and due process of law for a reason.”
“Strong leaders don’t automatically agree with the last thing that was said to them,” Sasse said. “We’re not ditching any Constitutional protections simply because the last person the president talked to today doesn’t like them.”
Legally, Trump’s position bumps up against fundamental constitutional protections. Whether it would pass muster in the courts would depend on the details.
“In general, property seizures are not allowed because an executive branch employee suspects the property might be used in a future crime,” Kopel said.
But John Banzhaf, who teaches at George Washington University Law School, says the Supreme Court would probably allow a law that lets police respond to a student’s threatening social-media posts by seizing his weapons until a hearing could take place.
“A narrowly tailored ‘take the guns first’ law would probably be found constitutional,” Banzhaf said.
A White House official said both Trump and Pence had discussed a proposal supported by Florida Republican Senator Marco Rubio that would create gun violence restraining orders at the federal level. The official said Trump’s comment was likely a reference to such a bill.
The proposal, which doesn’t yet have formal White House backing, would allow law enforcement and family members to obtain a court order to restrict gun access for people deemed a threat.
The White House official, who spoke on condition of anonymity, said Rubio’s proposal would allow guns to be taken away even before a legal process fully runs its course. Those who had their gun rights restricted under a restraining order would have the opportunity to appeal the court ruling after surrendering their firearms, the official said.
House Democrats introduced a similar proposal in May, modeled on gun restraining order initiatives in Connecticut, California, Indiana and other states that include an appeal process. The bill received renewed attention last week and its first GOP cosponsor: Brian Fitzpatrick, a Pennsylvania Republican and former FBI agent.
“This is a common sense bill,” Fitzpatrick said Tuesday. “I’m expecting more Republicans to sign on.”
Some congressional Republicans have said simply that Trump didn’t mean what he said.
Trump’s comment was “certainly a cause for concern,” according to Steve King, a conservative Republican from Iowa, but he, like other Republicans, hopes that “the president will make a statement and then something else will come along.”
But Trump has previously endorsed gun-rights restrictions without a court order, though that support hasn’t translated into action during his presidency.
During the presidential campaign in 2016, Trump said he favored a proposal backed by President Barack Obama to deny gun sales to people on the government’s terror watch lists. The National Rifle Association opposed the idea, citing due process concerns and errors on the watch lists that restrict some people from being able to board an airplane.
“I will be meeting with the NRA, who has endorsed me, about not allowing people on the terrorist watch list, or the no fly list, to buy guns,” Trump said in a June 15, 2016 tweet.
During a debate against Democratic rival Hillary Clinton in September 2016, Trump agreed with her when she endorsed the idea of banning gun purchases for those on terror
“I agree with you, when a person is on a watch list or a no-fly list,” Trump said. “And I have the endorsement of the NRA, which I’m very proud of, these are very, very good people and they are protecting the Second Amendment. But I think we have to look very strongly at no-fly lists and watch lists.”
Trump has not pushed for such a bill since he took office.
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