Most people are focusing on the marijuana aspect of Hemani. I think they’re missing the bigger story.
The Supreme Court repeatedly emphasized pre-deprivation process: the government must give you your day in court before it takes away a constitutional right.
That’s a serious problem for red flag laws, which typically seize firearms first and provide due process later.
If this reasoning holds, Hemani may become one of the strongest due process arguments yet against firearm confiscation without a prior hearing.
The Supreme Court’s decision in United States v. Hemani repeatedly used the phrase “pre-deprivation process,” which should send shivers down the back of anti-gunners. The Court made clear Americans cannot lose their right to bear arms without a pre-deprivation hearing, yet that is the entire point of today’s red flag law movement.
Much of the coverage of the Supreme Court’s decision in U.S. v. Hemani focused on its holding: the federal ban on gun possession by users of illegal drugs, 18 U.S.C. § 922(g)(3), could not constitutionally be applied to a man whose only offense was unlawfully using marijuana. That result matters obviously. But within the Court’s opinion appeared a phrase that lands squarely against one of the anti-gun movement’s favorite weapons. The Court repeatedly referenced the concept of “pre-deprivation process.”
In other words, before an American may be disarmed by the government, there must be a pre-deprivation legal process during which the American can fight the attempt to disarm him. Properly understood and applied, this notion provides gun owners with a powerful argument against red flag laws.
Mark W. Smith
