Saturday, June 29, 2013

On the difference between liberals and libertarians: HB 88

The News Journal editorial board apparently thought that HB 88 (the fatally flawed "common sense" bill for keeping firearms out of the hands of the seriously mentally ill) was such a slam dunk after it passed the House 40-1 that the paper didn't even bother to publish an editorial piece supporting it.

Oops.

Today the WNJ opines that this "common sense" bill is a critical "if only" opportunity:

If House Bill 88 dies in the state Senate, it runs the chance of becoming one of those “if only” bills. That is what they said after the Aurora, Colo., shootings, when a mentally ill patient armed with guns and bullets, walked into a movie theater opened fire and killed 12 people. 
If only Colorado had a law that kept deadly firearms out of the hands of a dangerous mental patient ... 
If only Colorado had a law that allowed trained mental health professionals to alert police when a disturbed patient is threatening violence ... 
If only ... 
House Bill 88 would provide Delaware with such a law. It was passed overwhelmingly by the House earlier in the legislative session. But it stumbled in the Senate this week when a high-pressure push caused some senators to back away from earlier commitments. The legislative session does not end until midnight Sunday. There is still time to bring it back and vote again.
There are only two other passages that you need to read from this editorial.

The first is:
 Why is it then that we will we use mental illness as a way of lessening the punishment for someone who used a gun in a crime, but not as a means of keeping that gun from getting into his hands? 
Delawareans should ask their state Senators to explain that logic.
And the second is:
Is the bill perfect? No bill is perfect. 
Not perfect?  Perish the thought.

When even ardent supporter of any possible restriction on gun rights, cassandra of Delawareliberal, admits
Adding on the drug charges and the domestic violence may be overreach 
--you know there is a problem.

 Here are the problems, seriatem



1.  This bill doesn't focus solely on the dangerously mentally ill.  It also provides for the near-automatic revocation of gun rights for anyone convicted of simple possession of marijuana or misdemeanor domestic abuse.  One does not have to be an advocate for either drug legalization (I am) or domestic abuse (I'm not) to realize that this is an attempt by the Attorney General's office and Democratic co-sponsors to make as broad an attack as possible on gun rights.

2.  The bill's due process provision--even after the change from preponderance of the evidence to a standard of clear and convincing evidence--are inadequate, as even Senator Patti Blevins is reported to have worried.  The reality is that the hearing in which the State attempts to remove your 2nd Amendment rights has significant problems.  To wit, here is the current wording of the bill:

(b) The Department shall have the burden of proving by a preponderance of the evidence [clear and convincing evidence] that the respondent is dangerous to others or self as defined in Section 5122 of Title 16.  The respondent shall have the right to present evidence and be heard in any such proceedings.  In the event that the Court makes such a finding, the Court shall issue an order to relinquish respondent’s firearms or ammunition under this section, and such order shall be reported to the Delaware State Bureau of Investigation for purposes of establishing that such person is a person prohibited from the possession or purchase of deadly weapons pursuant to § 1448 of Title 11.
Did you catch what was missing?  The respondent has no guaranteed right to have an attorney present in these proceedings.

You may assume that the right to counsel is automatically guaranteed, but since the respondent (note, not the "defendant") has not been charged with a crime, this is an administrative hearing, not a trial.  I can tell you from many years of working in labor law that in administrative hearings if the right to the presence of an attorney is not spelled out in the rules, then the hearing officer can bar attorneys from being present.

So what we are doing here is removing constitutional rights from someone who the State alleges is mentally unstable, and then potentially requiring them to answer these charges without the right to have an attorney present?

In other words, no matter how this is worded, the State will NEVER lose a case.

This, and other problems with the bill, COULD HAVE BEEN ADDRESSED via amendment, but the sponsors and their cohort of lobbyists have been unwilling to do so.

What a majority of Delaware State Senators did last week was refuse to accept a poorly crafted bill that is rife with both legislative "overreach" (cassandra's word, not mine) and inadequate due process provisions.

If the intent of our legislators is craft a bill purely to keep guns out of the hands of the demonstrably mentally ill, then let them actually introduce such a bill.

Liberals demand this bill be passed regardless of the broad elimination of rights because they believe the intent is noble.

Libertarians refuse to compromise and allow the liberal sponsors to (knowingly) sneak in such secondary provisions no matter how loudly they stoop to name-calling in order to confuse the real issue.

1 comment:

Anonymous said...

Thankfully we have laws that keep guns out of the hands of convicted felons. If it wasn't for that law the city of Wilmington would be like a shooting gallery. Thank god for that law! What? Oh,.....