Sunday, February 25, 2018

Pardon My French, But GVRO Hell No

David French writes glowingly of Gun Violence Restraining Orders. In a fantastically doublespeakish introduction, French claims that GVRO's "...make us all safer while empowering the individual and protecting liberty."

(Hugh Hewitt has also been talking about a principal or some other school administrator being able to call NICS and place a "no buy" type of hold on someone. Most of my objections to GVRO's fall along similar lines so I won't deal with that proposal directly here.)

The concept is thus: Person A (family member, spouse, roommate, boyfriend or girlfriend, etc.) calls the cops and makes a claim that Person B is too dangerous to have firearms. The cops along with Person A (in theory) go in front of a judge and the judge decides whether or not to grant this GVRO.  Person B may be allowed to defend himself against the claims at the initial hearing, but an ex parte hearing is also an option for a temporary GVRO, with a 72 hour or so duration. If it is issued then the cops take away Person B's firearms. There should be an expiration date with either type of GVRO so that the claim must be reviewed and the GVRO either continued or rescinded.

That's the basics of it. French's piece is fisk-worthy of itself, but I lack the time to really dissect his arguments bit by bit. 

I will say I think this is a great idea - if the republicans are tired of being a majority party.  Otherwise it's problematic in all of its' aspects.

The first problem I see is the ex parte approach becoming the default. After all, if there's a chance someone is really too dangerous to possess weapons then waiting 10-20 business days to do something about it would just be irresponsible, would it not? 

In either situation, judges will incline towards granting such orders. The reason is similar to why restraining orders are routinely granted in divorce cases - no judge wants to be walking down the street and have a microphone shoved in his face as he's asked "Judge Soandso, why didn't you grant the GVRO that would have disarmed the man that went out that very night and murdered his ex and their children?" A judge will always read any constitutional amendment in a way consistent with "For Thine Own Ass, Seeketh Cover".  Ask any attorney you know that specializes in divorce cases; they'll tell you that seeking a restraining order, especially when there's a dispute about custody or dividing a substantial estate, is a common tactic and judges will accept almost any excuse to grant one. GVRO's will be rubber-stamped under the flimsiest justifications possible. I predict, the standard for issuing a GVRO will come to make rational basis look like strict scrutiny.

But let's say an order is rescinded. The person once again is free of encumbrance in his Right to arms. Odds are he'll have to go out and buy something else, as police departments nationwide are notorious for not returning firearms, even when a court orders them to do so. 

Use whatever search engine you prefer, and type in "police refuse to return guns". You'll find an instance where a man had to wait 6 years before his weapons were returned. Another where over 6 months passed after cops removed guns with no relief as of that writing. Another where a CCW permit holder had his weapon seized and the city refused to return it. And another. And another

Hell, in Colorado, because of Bloomberg's Universal Registration law he paid for back in 2013, it may not be legal for cops to returns guns once seized in the Centennial State

Police departments across the country will at best drag their feet even when a court orders them to return firearms. Do you even have to wonder what it's like in New Jersey or New York? But by all means, do imagine walking into the Broward County Sheriff's Office and asking Sheriff Israel if he'll, pretty please with sugar on top, return your firearms to you now that the GVRO has been lifted. 

The ATFEIEIO has been known for decades to target gun owners with large, expensive collections in order to monetarily gain. Always Think Forfeiture has been their motto since inception. With the asset forfeiture well drying up in areas, GVRO's give cops a new avenue of revenue (many seized firearms are sold rather than destroyed) that'll make the ATFEIEIO jealous.

Often the cost of litigation to have firearms returned exceeds the monetary value of said firearms. And if you haven't noticed, there are many progressive judges who don't think people other than government employees should have arms. If the implication didn't get through - yes; judges will, in some instances, be as loathe to order weapons returned as police departments are despite having no legal basis for not returning the property.

I do not accept as plausible that there will be sufficient procedural protections in place to prevent abuse of GVRO's. Even if governmental officials with biases against gunowners could be negated, there'd still be the typical governmental incompetence to factor in. At minimum this will lead to delays in returning confiscated property once a GVRO is listed. Some number of firearms will simply be lost, or damaged in storage (go to any police evidence room and inquire about their safeguards against rust) or even destroyed or sold off. Judges will typically not award monetary damages exceeding the fair market value of a firearm. So even though you can pick up a replacement for what the court awards you, that won't cover the hours - sometimes dozens - of work that some folks put into their firearm (breaking in the barrel, replacing springs, testing loads {which must be done for each individual firearm even of exact same make and model], etc.)

NICS will be problematic as it already has a false positive rate between 94% and 99%. Let us not forget, it is the FBI that runs NICS. Given their already tarnished (and for damn good reasons) image, do you think they'll be quick to update the relevant databases? The appeals process is lengthy and expensive and that's when they are accepting appeals at all. They've been known to completely shut down the appeals process for NICS denials. From this July of 2016 article about a man appealing a denial there's this:

"...NICS Section is currently processing cases received in July 2015..."

 I will note the article states that the man's pardon and other exonerating evidence was in the NICS system when he was denied. It is not unreasonable to think that once a GVRO is issued that it will become an impediment to buying firearms even after it is rescinded. A multi-month to over a year long appeals process is precisely what Martin Luther King Jr. meant when he said that "A Right delayed is a Right denied".

Then there's the base issue; if someone cannot be trusted with a weapon, they cannot be trusted without a custodian. (David Codrea came up with that phrasing, which I think is most concise) Does anyone really believe that if a GVRO is filed and firearms are taken away from a 6'2" 250 pound male that his 5'2" 104 pound ex is now safe from any evil intentions he had? Or that since a person has his firearms taken away that they won't go right out and acquire an axe? Or a chain saw? Or a few gallons of gasoline? Or a car?

If a person can be credibly proved too dangerous to own a weapon then that person should be separated from society entirely, through either incarceration or institutionalization. If there's insufficient justification for putting someone in a prison or mental health facility, then there's no justification for denying the Right to arms. 

Governments can always find a reasonable justification to tread upon property Rights. There are always compelling government interests for intrusion upon a Right. And that's why Rights are enumerated - to completely take them out of government's purview despite the government's interest.   

GVRO's are too problematic as a practical matter. They'd do much more harm than good. A better, albeit more difficult approach, is a reformation of the criminal justice system to remove individuals that have a credible desire to do evil from society altogether. What would make the latter approach tricky is that most judges still kinda, sorta, just a little bit, like the 4th, 5th, 6th, and 8th amendments. The 2nd? pfft. That is just soooo 18th century, ya know?

I see no reason for republicans to preemptively compromise on the Right to arms. I definitely do not see any upside to republicans imposing upon the Right to arms, unless the stress of being the majority party is too much for them to bear. If republicans pass any GVRO bills, especially at the national level, then we'll get to see how Trump deals with a congress controlled by democrats. If Trump signs a GVRO bill into law, then he'll be a 1 term president. Do not discount the gunowner vote

Contrary to Mr French's assertion, no one is made safer when government is given license to intrude upon an individual's Rights. Liberty is not protected; it is endangered.

As to the specific question of GVRO's - the answer is hell no. 

Update: 03-18-18 9:55 MDT In writing this post concerning increasing the age for firearms ownership I stumbled upon this Politfact article which further highlights the difficulty of retrieving firearms from police once they've been seized.  I am belatedly including it here as it provides another insight into the difficulties and expenses gun owners face under current law.

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