I n a free and modern society, the tension between safety and liberty is ever present. How do we balance the need to keep our communities safe with protecting the freedoms we hold dear? In our continual search to find that balance, some things are non-negotiable. Indeed, Benjamin Franklin famously stated “[t]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Those individual rights that are non-negotiable are the same enshrined and safeguarded in the Constitution and Bill of Rights — at issue in this discussion are the vital rights of Due Process (5th and 14th Amendments) and the right to keep and bear arms (2nd Amendment). Our founding fathers’ well-reasoned and carefully debated decisions were shaped and informed by hundreds, and even thousands, of years of human oppression and eventual enlightenment.
On Aug. 16, 2017, Gov. Kate Brown signed into law a troubling gun confiscation law. The deeply flawed Senate Bill 719A is a misguided piece of legislation modeled after a 1994 California law.
It sacrifices dearly held individual liberties of due process and the right to bear arms, for a scarce chance of producing safer outcomes in reality.
We can all agree that we want to prevent tragedies and needless deaths due to violence of any kind. But the blatant deprivation of rights purported to be authorized by this law does far more harm than good. Moreover, there is a significant likelihood of abuse of this dangerous law.
SB 719A authorizes the issuance of what is known as an Extreme Risk Protective Order (or “ERPO”) against an individual who is accused of violence or a threat of violence.
However, this overreaching legislation allows even a household member — who is neither a mental health professional nor a law enforcement officer — to make sparse accusations against an unknowing individual on an ex parte basis, meaning, without them even being aware of it, and without their ability to respond or defend themselves at the time of its issuance. And this accused citizen — notwithstanding their presumption of being “innocent until proven guilty” — can be immediately stripped of all of his or her weapons, including firearms (and any concealed carry permits).
This bold step is a gross violation of the due process guaranteed in the 5th and 14th Amendments and an intolerable infringement of our 2nd Amendment rights. While a person who is hit with an ERPO can request a court hearing, it can be up to two months before his or her case is heard — and all this time, precious rights are being violated on a continual basis.
Even at the eventual hearing, the accused is put in the equally troubling position of having to defend him or herself against a “clear and convincing” evidentiary threshold to overturn the order. If the accused “wins” and the order is dropped, he or she can only get the firearms back after a background check, which represents an infringement and additional burden upon this individual that was not previously required for already legally possessed weapons.
This back-door gun-grabbing attempt misses its intended target and creates an undue burden on citizens whose rights can be so easily abused by a disgruntled and unqualified person.
Laura Eckstein serves as Elgin’s Municipal Court judge.