Sunday, August 23, 2015

San Jose Decides That Some Parts Of The Bill Of Rights Don't Apply In Their City

Well, the city of San Jose is headed for a huge civil judgement.  They have seized a woman's personal firearms because her husband was sent in for a psychiatric evaluation and is forbidden to possess firearms (a law that is on shaky ground to begun with).  Think about this for a moment: This woman is being deprived of a basic civil right - protected in the Bill of Rights - because of her husband's actions.  Let's take a longer look at this case.

A Basic Constitutional Right

First, it must be understood that the Supreme Court has ruled that the 2nd Amendment protects a basic right to buy and possess firearms in "common use".  Furthermore, in McDonald, the high court has stated that this right is "fundamental to our system of ordered liberty".  In short, the right to own a gun is protected in exactly the same way as the right of free speech or freedom of the press.  The court made it clear that criminal and the severely mentally ill can be forbidden to own or have access to firearms - but these restrictions only apply after due process before a court.   Even California's liberal governor Jerry Brown wrote a brief in support of the 2nd Amendment right in McDonald.  This is no longer controversial - it is settled law.

She could have retained her firearms and still complied with the law

California law requires "safe storage" of firearms and merely complying with this law would prevent her husband from having access to her firearms, since they would have to be placed in a safe.  Additionally, she could have stored the firearms at another location - such as a relative's home. Local authorities could have worked with the wife to insure compliance.  Instead, San Jose Police simply seized all her firearms - and have said that they will not be returned.

I have a question for San Jose PD: What have you done in the past when the spouse of one of your police officers has been sent in for evaluation under the same law?  Notice that I did not say "what would you do IF a spouse of one of your officer's was sent in for evaluation" - because with a department as big as San Jose, it has probably happened many times.  You can bet your life that the officer's firearms were not seized.  No way.  Instead, the officer was likely reminded that they had to take action to insure that their spouse had no access.  You can be absolutely sure that when the civil suit goes to trial, that this will be an issue - and San Jose will have a very hard time arguing that police officers have more rights under the 2nd Amendment.

The Law Itself Is On Shaky Ground

As a former California paramedic, I have a great deal of experience with California's emergency commitment law.  First of all, in most cases, the people responsible for sending people in for evaluation are police officers - not mental health professionals.  Yet, simply being sent in for evaluation by mental health professionals results in the loss of your gun rights.  Sure, if you have the money to hire a lawyer and some mental health professionals you can, in theory, get a court to restore your rights - but most people do not have the thousands to tens of thousands of dollars this costs.  The average person simply looses their gun rights.

Now let me be clear: No one wants severely mentally ill people to be able to legally possess firearms.  The issue here is that it is not and mental health professional and a court making this determination: It is a police officer.  Federal law bans people from owning firearms if a court finds them to be severely mentally ill, based on the testimony of mental health professionals.  The due process rights of the individual in question are protected.

Do we really want to empower cops to simply remove someone's constitutional rights on nothing more than their own opinion?  I sure hope not.

Do we want our government to punish someone for their spouse's actions?  Again, I sure hope not.

Even if you don't like guns, this case should still be important to you - because if they can ignore the 2nd Amendment - they can just as easily ignore the 1st, 4th or 5th Amendment too.  That's why San Jose is going to lose this one - and why it will likely cost San Jose taxpayers several million dollars.

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