Constitutional Due Process: What Is Being Built?

Constitutional Due Process: What Is Being Built?

By Craig M. Szwed

Many of us have heard the expression "due process" used with regard to civil rights cases of all sorts, and very often in conjunction with criminal cases. The popular media is vibrant with pundits and advocates hollering about alleged miscarriages and abuses of due process with regard to criminal proceedings, but we don't hear that same zeal in the popular media when it comes to the discussion of due process regarding laws and cases that apply mostly to law-abiding citizens. This raises the question of whether the media, the government, or even we understand the very language and nature of what constitutes constitutionally guaranteed due process of law.

Here is TheFreeDictionary.com definition of what constitutional due process means. 



A portion of the definition on that link says the following:
"A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.
"The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states, rather than those of the federal government."

For those who wish to pursue the topic further, this link will yield a host of commentaries about constitutional due process.

In short, two points summarize the intents of constitutionally guaranteed due process at the State and Federal levels of government:
          1.  So that accused persons have the Right and freedom to get through the legal process BEFORE they are judged guilty AND BEFORE they are required to forfeit their life, liberty, or property.
          2. To guide and shape the crafting of state and federal laws so that NO law shall violate the due process tenets of the Fifth and Fourteenth Amendments.

Without getting into fancy technical language, due process is also comprised of two parts, the actual written legal language part of a law and the practical application of it. One portion of a law may look or sound good while being debated and voted onto the books, but the implementation of it, and the rules by which it is put into practice, may be wholly or partially unconstitutional. Those two areas are supposed to be thought through and resolved before laws are written, passed, or imposed on the citizens. But, as we have seen over the years, all too often, unconstitutional laws are wantonly or wastefully passed, forced on the public, and then thrown into costly, time-consuming court battles, with both sides trying to find if there really is constitutional justification for the existence of the laws, and if there is, how then are they to be constitutionally implemented. We now have a common 'simplified' understanding of what constitutional due process is supposed to be, and why.

As this article is being written, hearings and deliberations have been taking place in the State of Connecticut Legislature about a variety of laws pertaining to the Rights of citizens, firearms, and restraining orders, in particular. Having gleaned a few tidbits from the hearings and YouTube postings, I submit them to encourage understanding and reader participation to try to get our government to work within our State and Federal Constitutions.

The first comments below are the testimony of Mr. Peter Kuck, testifying at the Capitol in Hartford, last week. It is part of the legislative record and used with his permission. I find Mr. Kuck's comments wholly in line with constitutional language and principles. (ed. the text and testimony order are unchanged, but the formatting is slightly different from the original transcript.]

*****

"Dear Senators and Representatives,

"My name is Peter Kuck and I am a member of the Board of Firearms Permit examiners.

I am here today speaking for myself.

"I have in the past filed a Civil Rights suit against the State of Connecticut for the denial of Due process rights due to the creation of a 17 to 22 month delay for hearings before the Board of firearms permit examiners. I lost that case when the state claimed that the backlog was declining and that a 17 to 22 month waiting period for an administrative hearing was not a denial of due process rights. The court case took seven years and tens of thousands of dollars to pursue. (Please note that the current waiting period for a hearing before the board is now 29 months and I still consider that to be a denial of due process rights).

"This legislature is now offering more laws that would deny the citizens of this state their due process rights. Due process rights protection extends to all government proceedings that can result in the loss of a citizen’s rights or property.

"Due process rights demand the following: 
 1. An unbiased tribunal.
 2. Notice of the proposed action and the grounds asserted for it.
 3. Opportunity to present reasons why the proposed action should not be taken.
 4. The right to present evidence, including the right to call witnesses.
 5. The right to know opposing evidence.
 6. The right to cross-examine adverse witnesses.
 7. A decision based exclusively on the evidence presented.
 8. Opportunity to be represented by counsel.
 9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision. 

"Governors Bill 6848 is unconstitutional.

"Governors Bill 6848 in Section 29-36k section 1, 1(a) Fails to provide the accused with the Most basic requirements of the Constitution in that it removes from state statutes the language that allows a citizen to defend himself from false and malicious charges prior to being stripped of his Constitutional and private property rights. The removal of this language replaces the presumption of innocence with a presumption of guilt. Furthermore it limits a citizens’ right to transfer his property to an individual of his choice, so that he may regain his property after any and all unproven charges have been dismissed.

"Section 53a-217 (a) and Section 53a-217(c) of this Bill also fails to provide the accused with the most basic requirements of the Constitution by removing from state statutes the language that allows a citizen to defend himself from false and malicious charges prior to being stripped of his Constitutional and private property rights. The removal of this language also replaces the presumption of innocence with a presumption of guilt. 

"Proposed Bill 650 is unconstitutional.

"Proposed Bill 650 is unconstitutional in that it also allows the seizure of citizen’s firearms prior to giving him the opportunity to defend himself from false and malicious charges before being stripped of his Constitutional and private property rights. The removal of this language also replaces the presumption of innocence with a presumption of guilt. 

"Raised Bill 6962 is unconstitutional.

"Raised Bill 6962 is unconstitutional in that it fails to comply with the U.S Supreme court ruling in Heller. A trigger-lock requirement (as applied to self-defense) violates the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. This prohibition would fail constitutional muster under any standard of scrutiny. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional. The addition of language to this bill also replaces the presumption of innocence with a presumption of guilt for state citizens. 

"Summation 

"These proposed changes to state statute include the very definition of the denial of due process rights for individuals who own firearms under the U.S. and State Constitutions. They also invite the “use of the process as the punishment” through the deliberate delay and “slow walking” of cases through administrative and judicial processes.

"In closing I offer you a quote from Justice Brandeis from his dissent in Olmstead v. United States, and the decision from the U.S. Supreme Court in the Cantwell v. Connecticut. 

"The Justice Brandeis from his dissent in Olmstead v. United States 

"“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution.” 

"The U.S. Supreme Court in the Cantwell v. Connecticut decision.

"The fact that arbitrary or capricious action by the licensing officer is subject to judicial review cannot validate the statute. A previous restraint by judicial decision after trial is as obnoxious under the Constitution as restraint by administrative action.

"Your votes count in this matter.

"Please consider the potential repercussions of that vote.

"Peter Kuck"
[ed. address and phone are in legislative record]

*****

Mr. Kuck has given the Legislature a rational, informed, and concise presentation of his concerns for due process and the civil rights of our citizens.

Now, let us now see what the Malloy Administration offered in defense of their anti-rights, anti-gun legislation that is hiding behind suggested amendments to laws pertaining to restraining orders. The following YouTube link is of Connecticut's Lieutenant Governor Nancy Wyman. She, too, was testifying about due process questions in the bills that Mr. Kuck had addressed in his surgically accurate comments above. 

https://www.youtube.com/watch?v=-LFRwYJENXc#t=116 

I find it abhorrent, in this day and age, that someone can rise to be second in command in this State without having any idea about what due process is or how to find references to it in the laws about which she is supposed to be testifying. During and after last year's campaigning, Malloy glowingly touted Wyman as a grand and brilliant ally, yet, Wyman's demonstrated ignorance shows, yet, again, the disdain that the Malloy administration has for our Federal and State Constitutions and for the citizens of Connecticut. Note Wyman's waffling and dodging, as she insisted that "there is due process" in the proposed law, but she hid behind, "I don't know... I'm not a lawyer" whenever Representative Dubitsky grilled Wyman about the wording, location, and nature of the supposed inclusion of it in the bill she was defending. Wyman needed constant coaching just to try to keep her story straight about the proposed bill that her administration put before the State Legislature. She had no clue what's in there, much less how to find it... sounds like some of the ignorance that surrounded the 2013 anti-gun bill.

I salute Mr. Kuck for his testimony, and I also salute Representative Doug Dubitsky for holding Wyman's feet to the fire of truth about constitutional due process. We ALL must continue to support and defend our State and Federal Constitutions by supporting the work that people like Mr. Kuck and Representative Dubitsky, and many others, are doing to stop the lies and deceit that Malloy, Bloomberg, Obama, and the whole anti-Rights, anti-firearms crowd are trying to stuff down our throats with all their lies about public safety. (Much akin to the lies of Obama and the BATF about 'green tip' ammo, which the some police groups have said is nonsense.)

For all those prone to knee-jerk sympathy for people filing restraining orders for alleged threats from spouses or ex-spouses, I submit one final link that has turned up as a part of the internet record: IF true, this a total horror story about the way the State of Connecticut has allegedly mismanaged an attack on one family, and the trouble that a guy's ex-wife caused simply by saying that she felt threatened, even though she allegedly invaded their home after she and her ex-husband hadn't been together for years! 

Internet search source:>>http://ccdl.us/blog/

>>Posted in Gun Control, Press Release | Tagged Gabby Giffords, Scott Wilson | 23 Replies

See comments>>http://ccdl.us/blog/2015/03/17/gabby-giffords/#comments look for the Sue Istvan posting on 3/15/2015, 1:50pm, as internet public record.

In conclusion, while public and personal safety are constitutional concerns, we cannot justify violating two people's constitutional Rights for every third person who might temporarily be justified in some concern. We must keep in mind that a LARGE proportion (2/3) of restraining orders are fraudulent, or dismissed as unjustified, or simply vacated. There is also the issue of procedural violations regarding property rights of accused individuals against whom all concerns have been cleared or falsely alleged. There is zero constitutional justification for confiscation, sale, denial, or destruction of that person's property, and any property that the State touches must be returned to the formerly accused without damage and in full or the State and the responsible confiscatory officials must be held in contempt of the Constitution. Case in point is grandfathered weapons, parts, magazines, ammo that the State fails to return to the cleared citizen, when the State alleges that it cannot or will not do so simply because there is a new law on the books, even though the owner of those items legally held them under grandfather status prior to the issuance and vacation of a restraining order against her/him. If and when the citizen is cleared and her/his property must all be made whole in a most reasonable amount of time, as in days, not weeks, months, or years. Any delayed response by the State is untimely, egregious, and unconstitutional. Many in our ranks know of someone who has been leaned on by the CT DESPP for something, then cleared, but who then had difficulty getting their weapons and ammo returned in timely fashion, if their personal property of weapons, parts, or ammo was returned at all.

In light of these things, it must become obvious to every reader that constitutional due process has been left out of many laws, both in the writing and formulation thereof, and in their practical implementation at the State and Federal levels, especially with regard to restraining orders, firearms, and forfeiture of personal liberty or property. Here in Connecticut we are fighting a desperate battle to require our government, at all levels and departments, to stop ignoring constitutional due process for law-abiding citizens.

We require that all Administrative, Legislative, and Judicial Departments of our government must return to the common historical standard of the existing language established within our State and Federal Constitutions, and that those said departments must be governed thereby in all that they do, including the laws that they seek to impose on our citizens. Political whim is NOT acceptable. "Political correctness" is NOT acceptable. Political privilege is NOT acceptable. Whatever laws apply to the citizens must equally apply to all those holding every office, because our State and Federal Constitutions establish equity of exposure under Law, not expedience, nor exemption.

Our grave concern for this State of Connecticut, and for our Nation, is that any American government that violates or rejects its constitutionally-sworn subservient role to the authority of our State and Federal Constitutions is NO LONGER a government of the people, by the people, or for the people, but rather has set itself above the people. Any errant and willful American government that attempts to void or ignore the plain language and intents of the contract instilled within our State and Federal Constitutions despises the contract between government and the people who created said government. That elitist, or errant, or tyrannical government is, by constitutional definition, no longer a legal government, since that errant government has seen fit to reject or break its contractual obligations that exist under our Constitutions' laws and precepts.

It is not so much the strength or skill of external enemies that destroys a people, but rather the ego or ignorance of those who claim or strive to lead or dominate that people from within. The moral weakness and decay of society plays right into the hands of those who would dominate us from within, and allows them to achieve their ends. When the people are morally resolute, informed, and acting as one, as should happen within the constraints of our State and Federal Constitutions, there is little that the people cannot accomplish for the common good, IF it is done with humility before the Lord Jesus Christ, including returning government to its proper accountability and function in society.

We MUST unite to fix our State and Nation, for we claim to be "One Nation, under God, indivisible, with Liberty and Justice for all." Are we teaching our children a lie or the truth when we have them recite our Pledge so proudly, and salute our Flag with their glistening eyes and hands over their innocent hearts. What are we showing them? Where are we leading them? Are WE honoring our Pledge and really defending and supporting our Constitution to preserve it for them?

There is much work to be done. Get involved! Get busy! Stay actively involved! Every solid wall of defense needs every bit of stone that is in it.