Inspired by this thread.
Say you have someone legally owning one or more firearms. Under what circumstances can they be legally deprived of their right to those firearms? Assume no criminal convictions, no restraining orders; the person has a clean sheet. But something makes the authorities want to remove the firearms. How do they do it?
Easy. Just enact a law that does so, and convince the Supreme Court that it is constitutionally justifiable. Every one of the Ten Amendments has been held to be not applicable in certain cases, which is now settled law. (Well, maybe not the one about quartering troops.)
I’m asking about present circumstances, not possible future ones.
I presume that any of myriad laws that authorize the police or anyone else to detain or restrain a citizen, would be broad enough to also disarm said citizen if deemed necessary to do so in the interest of public safety or order.
As for present circumstances, an authority can just say the circumstances warrant it, cite existing law, and let the courts sort it out later.
Nobody else has responded to your OP, so I’ll just throw that out there.
IANAL, but if the person doesn’t have a criminal record, is not under probation, etc. I do not think there’s a mechanism for the government to infringe on their right to own guns. Of course, this assumes the type of guns possessed by the person are legal to own where they live.
Quartz, assuming your question means “once in posession and then taken away. . .” one of the more interesting things I found out while in the Air Force was about the Lautenberg Amendment. It bans possession of firearms for misdemeanor convictions of domestic abuse, or possession if under a court-ordered restraint. Presumably, they can come and take your firearms under that court order–I don’t know the mechanics of the confiscation, nor whether you get them back.
I found out about it, because with access to weapons and explosives, we all had to sign affidavits that we were not under such court orders or misdemeanor convictions.
Tripler
I’m sure it’s a nightmare trying to get them back, if you wanted them back.
At the federal level? State level - which state? - 50 different sets of laws.
A guess. Entering a federal bank or courthouse.
Was coming to mention that.
Which itself has been the subject of some heat about difficulty of enforcing, and particularly of communicating the circumstance to other authorities, which goes to what **thatguyjeff **points out - 50 states, DC, 5 territories, dozens of Native Reservations, the Federal government, the military law system, etc. (The Sutherland Springs church shooting was a case of someone who should have had his arms rights taken away for DV history, but at some point those responsible for passing along the information failed to).
But I think it is fair to say that taking firearms, or any property, from a person who is lawfully allowed to have them, and has not committed a crime, is a pretty high bar.
The only ways I have read about people having guns taken away is pursuant to a court order relating to concerns about domestic violence, having someone found to be insane (not just suffering from a mental illness, but insane) by a court or a similar board, during the state of emergency after Hurricane Katrina (but there are folks who believe this was on shaky legal ground, an opinion I can’t weigh in on either way), or after being arrested for an actual crime.
There may be other ways, but again I’m under the impression that the bar is quite high due to both the general constitutional protection of ownership of firearms and the constitutional prohibition on depriving people of property without due process of law.
Without reading too much into the way the OP phrased the question, I strongly doubt that just because the authorities have “some reasons” to want to take someone’s property, wouldn’t seem to fly too far in our legal system.
What about the specific case of the recent FL shooting. If the FBI and other authorities had responded to and properly investigated Cruz, would they have been able to prevent the shooting? He hadn’t, afaik, committed any crimes but there seems to be ample red flags that he could. Could the authorities have confiscated his guns? Does saying you want to shoot up a school present enough evidence to allow authorities to act preemptively? By what mechanism?
mc
You have a first amendment right to say you are going to overthrow the government, as long as you don’t take any material actions to do so. IOW, it’s not just the 2nd amendment that comes into play. If the guy said he was going to blow up the school and the police got a warrant to search his home, finding bomb making materials along with drawings and plans, they could take action. But owning a gun is generally legal so just being in possession of gun does not thwart your first amendment rights.
That’s kinda what I thought. And I don’t want to derail this thread by focusing on a specific case. . .but it seems like there should be some way that the safety of the general public outweighs an individual’s right to own a gun. If a person has indicated a willingness to do harm to himself, the authorities have mechanisms to detain that person, at least temporarily, and force them to accede to psychiatric examination. If a person makes similar indications that he is willing to do harm to the general public, specifically with firearms, then surely there must be some way to separate that person, if only temporarily, from their weapons. No?
mc
Emphasis added. They do? Or rather, what indications of doing harm to oneself make one liable for detention but exhibiting the same indication of doing harm to someone else does not make one similarly liable?
And just to be clear, I’m not trying to engage in a debate about gun control. I just question your premise about detention wrt to the two situations.
From the National Institutes of Health
So, if the state has the authority to confine a person who may represent a danger, then surely they have the authority to separate that person from the means of committing that danger.
Now I’m not suggesting that the police (or others) can just come in and take someone’s guns, but if that person has stated that they intend to do harm to others with a gun than surely there must be some way to separate them.
mc
I found this
I see, I missed you point; your saying if someone presents a danger then confinement precludes the necessity of confiscation.
Why not have both options? why not be able to remove the threat while at the same time work toward a mental health solution? And as I found, apparently, some legislators agree.
mc
Here are those laws:
Excellent. Thank you.
better link to the Washington statutes