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Comment by rayiner | Hacker News Reader

It’s not clear to me that you can take away someone’s second amendment rights even with due process, just as you couldn’t take away someone's first amendment rights with due process. (You couldn’t, for example, create a “red flag” law that imposed prior restraints on the political speech of specific people, even if it required a signed order from a judge.)

Due process is the baseline required to deprive someone of “life, liberty, or property.” If you could take guns away with merely due process, then you wouldn’t need the second amendment, because guns are also property. That right merited it’s own amendment, with additional protections.

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Restraining orders which have roughly the same level of of due process can limit your freedom of assembly and association granted by the first amendment.

Felons are not allowed to own guns.

They aren't felons until they've been found guilty of specific laws in a court of law, which is where the due process occurs.

That's exactly my point: the parent was saying that, even with due process, their guns could not be taken away.

Sure, but the response above was arguing that due process could NOT be used to limit access to guns. That the 2nd was absolute, or nearly so. Which is poppycock. We already limit access to machine guns. We already have age limits on access (typically 18 for long guns and 21 for handguns). And, as you mentioned, felons are prohibited.

This line of reasoning concludes that the existence of a federal or state law implies its constitutionality.

Given that the system requires a law to be passed before a challenge in court, this reasoning is inherently fallacious, since if it were true, no law could be ruled unconstitutional.

Things like the NFA and other laws that come expressly into conflict with an unlimited interpretation of the second amendment have been challenged in court on constitutional grounds and those challenges have failed.

As far as the US system is concerned that means some forms of limits on the second amendment /are/ constitutional and the 2nd amendment is thus definitively not unlimited unless and until the court issues a ruling that contradicts the previous rulings.

and, in addition, red flag laws are not lacking due process... a judge rules on them after presenting arguments from a close party to the person. i don't believe there are any red flag laws that allow just anyone to bring proceedings but i could be wrong.

A closed hearing from only a single party is not due process.

Then, the subject of the order must fight (at great expense) to regain their rights, which is a de facto presumption of guilt.

No hearing. No charges. No grand jury. No due process.

Due process might be a 30-day order to confiscate guns. If they can't get a grand jury indictment or involuntary commitment to a mental institution in those 30 days, the gun owner gets their guns back automatically and can't be subject to another red flag for 10 years.

All arguably unconstitutional, even if prudent and practical.

Meaningful and lawful arms controls cannot exist in the US without a new amendment modifying the 2nd.

And many people take issue with this on the principal that if you're safe enough to not be in prison you're safe enough to vote, have guns and enjoy every other freedom.

It’s not clear to me that those laws are constitutional either. Judge Amy Coney Barrett recently wrote an excellent dissent that addresses that issue: https://originalismblog.typepad.com/the-originalism-blog/201...

Of course the Second Amendment is not unlimited, just like the First. My point simply is that due process, by itself, is not enough to take away the right. You need to be able to point to an inherent limitation of the concept of “the right to keep and bear arms.” As Judge Barrett points out, while the concept of the right to bear arms was not unlimited, it doesn’t necessarily exclude felons (and, as her sources show, “dangerous people” either). The New Hampshire proposed amendment, for example, would have excluded only people who had engaged in rebellion.

They can still own flamethrowers, however.

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