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April 2nd, 2010

Can You Lose Your Constitutional Rights?

Bill Of Rights 12-26-09Written by Nathan Tucker

That is a question that Iowa courts will soon have to wrestle with after Governor Culver signed into law a bill that takes away the gun rights of those who commit certain offenses. The bill, Senate File 2357, takes away a person’s right to possess a firearm (or ammunition) if they have been convicted of domestic abuse or if they have a no contact order against them.

Upon passage, Senate Majority Leader Michael Gronstal (D-Council Bluffs), echoing the thoughts of many, said, “If you want to keep your guns, don’t beat up your spouse.” No one, however, would have made a similar statement to justify a law stripping an individual of his right to free speech should that person ever yell “fire” in a crowded theater.

While no one is condoning domestic violence, are such offenders entitled to their constitutional right to bear arms? Nearly two years ago in the Heller case, the Supreme Court struck down the District of Columbia’s gun laws as too restrictive and, in so doing, ruled that the Second Amendment guarantees individuals the right to own a gun for private use.

In doing so, however, the Court left many questions unanswered, not least of which is what gun restrictions, if any, are constitutional. But the Court’s cases concerning free speech and racial equality do establish guidelines for when a constitutional right may be restricted, and when those guidelines are applied to this law it fails the test miserably.

First, the state’s only justification for taking away someone’s constitutional rights is that the individual committed a crime. That is hardly a compelling justification, as each of us has at one point sped, littered, or parked illegally. Should we be deprived of our constitutional rights for that?

Proponents of the law may argue that it doesn’t apply to all criminals, but only those who commit domestic assault. But if the state can justify taking away constitutional rights for one type of assault, there is nothing that would prevent them from taking it away for all types of assaults.

Also, the bill doesn’t require that the assault involve the use of force, much less the use of a deadly weapon such as a knife or a gun. Under Iowa law, a person can commit an assault by simply doing something which another finds offensive, even without physical contact. Certainly the constitution requires a much stronger nexus between the crime committed and the deprivation of a constitutional right.

Secondly, the law fails the constitutional test for its lack of adequate procedural protections. Under the statute, a person’s Second Amendment rights are taken away when a no contact order (NCO) is placed against them. A NCO is entirely separate from any criminal action and can remain in place even if the accused is found not guilty.

A temporary NCO can be issued without notice, a hearing, or right of counsel by a judge sitting in chambers. A hearing must be held before the NCO becomes permanent, but there is no right to a jury trial, to counsel, or for the state to prove its case beyond a reasonable doubt. The deprivation of a constitutional right, however, demands much stronger procedural safeguards than these.

The third problem with the law is that the only way for someone to restore their constitutional rights is to ask the governor for a pardon. But there is no guarantee that you can ever get that right back. The governor can, and often does, deny pardon requests, and there is no requirement for him to grant the request if, for instance, you haven’t re-offended since then, you have completed counseling, or the victim consent’s to the pardon.

We would never stand for any other constitutional right to be taken from us with such little justification, adequate procedural protections, or a restoration process, and nor should we with our Second Amendment rights.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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