This week, the U.S. House of Representatives is scheduled to vote on an atrocious bill that violates the Constitution and abandons the Rule of Law. #HR5611, the Homeland Safety and Security Act, contains a simple provision with staggering implications: It permits the federal government to restrict a constitutionally secured right—the right to keep and bear arms—based merely on what the government predicts someone will do in the future.
Terrorists already can be arrested, charged, tried, and convicted under current law—and denied gun rights. The real innovation of H.R. 5611 is to grant the government power to target law-abiding Americans.
The bill allows the government to prohibit gun transfers to Americans who have not been charged with—let alone convicted of—any criminal or terrorist activities. Under the bill’s constitutionally inadequate process, the targeted individual receives a basic hearing, not a jury trial, and the judge can restrict the individual’s gun rights upon nothing more than a showing of “probable cause to believe” that he or she will someday be a terrorist.
If successful this week, H.R. 5611 will be among the most egregious gun control measures ever to pass either house of Congress. If the bill becomes law, it will mark a massive expansion of the government’s ability to restrict gun rights on the basis of precrime—a crime not yet committed. H.R. 5611 is the actualization of dystopian fiction.
The Rule of Law requires notice that particular actions will result in penalties and restrictions of rights, but the bill enables a judge to penalize a constellation of legal activities that the judge believes can predict the individual’s future actions. Under this standard, there is no way to be sure that you’re preserving your Second Amendment-secured rights; you just have to live life in a way that hopefully a judge won’t someday find suspicious.
Even if the government alleges that the individual has committed illegal acts, H.R. 5611 may be used unconstitutionally to short-circuit due process. To restrict someone’s fundamental rights based on illegal conduct, due process requires that the individual be found guilty of the criminal act beyond a reasonable doubt. This bill requires the government only to show probable cause—a much lower burden of proof—to believe a claim that, at the time of the hearing, cannot be indisputably proven or disproven (that the individual “will” commit a future act of terrorism).
It's not even clear how this future behavior would be litigated. What must the individual show to convince a judge that he or she will not commit an act of terrorism in the indefinite future? Will the hearing simply devolve into a dispute about the individual’s character? This would be hugely unsettling—the prosecutor and the judge would have to discuss whether the individual in front of them (perhaps a member of a religious or ethnic minority), who hasn’t actually been found guilty of anything, is nonetheless just so rotten that his or her capacity to make alternative choices should be ignored. Free societies do not permit judges and prosecutors to restrict your rights just because they don’t like you.
In addition, any hearing likely will focus on activities protected by the First Amendment. After all, the only new targets of H.R. 5611 are Americans who are not charged with or convicted of terrorism and who have not committed a felony (terrorists and felons already can’t purchase guns). Because the bill is aimed at law-abiding Americans, it’s inevitable that the judge will feel compelled (in the absence of criminal factors) to make a decision based partly on factors like the individual’s speech, religious beliefs, and associations.
The bill also creates additional constitutional concerns because it does not incorporate the various procedural safeguards in the Sixth Amendment. And, of course, the entire process further supports the disposability of the Second Amendment and Fifth Amendment.
Finally, passage of H.R. 5611 would support the belief that recent events justify a re-evaluation of what kind of country the United States is. The right to keep and bear arms, the right to due process, a commitment to the Rule of Law—these are fundamental to the character of the United States, and yet they, along with much of the rest of the Constitution, continue to be called into question by your representatives and senators in Washington. I swore an oath to stand against these efforts, and I ask you to join me in opposing H.R. 5611.