Commentary: New Mexico’s proposed Emergency Firearm Protection Act, raises some tough questions and some easy ones.
Easy is whether or not the 2nd Amendment prohibits it. Nope. From 1789-2008, the U.S. Supreme Court read that amendment as not protecting individual (non-militia-related) gun ownership. When the Supreme Court (wrongly, I’d say, but it’s done) created an individual right, striking down an extremely strict prohibition on guns in Washington, D.C., the Court made clear that the right was not unrestricted. The Court stated that restrictions based on mental health or felonies, or on the types of weapons involved, would still stand.
Does the 4th Amendment prohibit it? Tougher call. Do the procedures allowing at least a temporary state taking of property comport with due process requirements made applicable to states by the 14th Amendment? The ACLU opposed Rhode Island’s 2018 measure, until the legislature tightened the standard for granting a petition, created penalties for providing false evidence of a threat, allowed only law enforcement to file petitions, required concrete evidence, and granted the right to legal counsel in hearings.
Tougher still are several value judgments that balance the rights of frightened family members against the rights of a gun owner they believe is dangerous to self or others.
As introduced, EFPA allowed “family” to petition the court to remove guns, and defined “family” to include ex-wives, former in-laws, and persons the gun-owner has had a child or an intimate relationship with. Opponents said that definition invited frivolous, even perjurious accusations. Proponents pointed to the laws against perjury. Opponents countered by asking how often perjury laws really get enforced in such situations.
An amendment watered down the senate bill so that only police officers could petition – as in Rhode Island. But male-dominated law-enforcement agencies have too often shortchanged women who complained that their male companions were dangerous. Further, what should a battered spouse or ex-spouse, reasonably fearing for her or his life, do in rural New Mexico, given that sheriffs around the state have said they’ll refuse to enforce the law? We could add a provision allowing battered spouses to sue sheriffs to make them do their jobs; but who in that position is likely to sue?
Ironically, by refusing to apply state law, the sheriffs (who misread constitutional law) may force the Legislature to strengthen EFPA in ways that gun enthusiasts (quite reasonably) don’t like!
As written, the bill allows an initial order to issue ex parte, with no advance notice to the respondent. Then the court sets a hearing within 15 days, and the respondent (but not the petitioner) could ask for a postponement. I’d say the respondent should also be able to move for an expedited hearing. If s/he wants the gun(s) back, and has a good case that there’s no unusual danger, s/he should be allowed to make that case and recover the property, sooner rather than later.
So how do we protect against real threats without trampling the rights of responsible and mentally sound gun owners?
I wish each side listened more to the other. We can and should prevent some tragedies by enacting some form of this bill; but due process is essential to democracy.
I hope gun owners, those who know guns best, will participate in refining the bill, not just shout, “I love my gun!” – and that proponents of the law won’t assume everyone who raises a civil liberties question is an NRA member.