From the Bill of Rights:
No person shall… be deprived of life, liberty, or property, without due process of law…”
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
In 2002, 20th Century Fox and DreamWorks released the Tom Cruise starrer “Minority Report”, which was based on a novella by Philip K. Dick (who’s turning out to be almost as prescient as Orwell).
The story takes place in the near future, the basic premise being that three mutant humans, known as “precogs”, have the power of precognition (foreseeing the future) when working together in concert, which gives them the ability to see murders take place before they actually happen. Based on their visions, the police have the authority to get to the scenes of the crimes and arrest the murderers before they have the chance to actually kill their victims, thereby not only being able to prosecute and imprison the offenders, but also saving the lives of the victims.
But there’s a fly in the ointment. It turns out that very occasionally a crime is foreseen for which one of the precogs sees a differing vision, that vision being the titular “minority report”, and the administrator (and inventor) of the program has kept this fact secret, as it might endanger the validity of any resulting prosecutions of the “future crimes”, and therefore the existence of his bureau. And, in fact, it turns out that innocent people have been snared by this program.
Substitute “red flag laws” for “precognition program” and we bring the plot elements of a dystopian-future movie to our current political discussions.
Red flag laws would allow the authorities to confiscate the guns owned by a person if that person is accused by someone else – and there’s a pretty broad range of acceptable accusers (real-world “precogs”) depending on the jurisdiction – of possibly being a danger to themselves or others. Based on the accusation a hearing takes place – of which the accused isn’t even notified, let alone allowed to attend and defend themselves – after which the authorities can carry out the confiscation.
This is exactly the process that takes place in the movie.
I see all kinds of problems with these laws. To begin with, the accused is being deprived of his gun rights and property (the guns) without being convicted of any crime, nor being medically diagnosed as being psychologically unsound, in clear violation of the Fifth Amendment requirement for due process.
A hearing or other legal mechanism is taking place, in secret, without the accused even being notified or allowed to attend and defend himself, in clear violation of the Sixth Amendment.
Only after his guns have been confiscated does the accused get an opportunity – at some future date which might be months down the road – to appear before some form of tribunal to make his case in defense of his rights, at which point he has to prove his innocence of the accusation, a very clear violation of the presumption of innocence upon which our criminal justice system is allegedly founded.
That raises the question of how one proves that they’re innocent of a crime they haven’t even committed, and prove that they’ll never do what others have said they “might” do. This is all very Kafkaesque.
Notice that these laws aren’t even aimed at acts that people will surely commit; only acts they might commit. I can’t think of anything that’s more speculative than that. Apparently it’s crystal ball time.
Where does this kind of thing lead? Did you ever drink too much at a party? Well, you might commit a DUI at some point in the future, so maybe we should revoke your drivers license until you can prove you won’t ever drive under the influence. Maybe take your car away just to “be safe”.
Why not? More people are killed in car accidents than are murdered by gunfire.
The reality is that anybody can accuse any other person of anything. That’s the principle reason why our judicial process requires actual proof, and the accused enjoys the presumption of being actually innocent absent that actual proof. Red flag laws turn that premise onto its head.
Further, there’s absolutely nothing that prevents people from maliciously manipulating the system with false accusations, based on a host of reasons: personal or political enmity, divorce disputes, feuding neighbors, or even simple anti-gun hysteria, just to name a few.
This entire red flag bandwagon is leading to some very bad law. It’s a case of a movie – “Minority Report” – coming true.
©Brian Baker 2019
(Also published today in The Signal)