I was a guest on “Airtalk” on Los Angeles Public radio KPCC to talk about the constitutionality of gun restraining orders in the cases of domestic violence. I was debating Mike McLively, a Staff Attorney from the Law Center to Prevent Gun Violence.
These laws are problematic under the 4th Amendment (seizure of guns without probable cause they are used in a crime), 5th Amendment (compelled self-incrimination by shifting burden to accused to prove why he should keep his guns), and the 6th Amendment (depriving someone of a constitutional right without a conviction based on proof beyond a reasonable doubt by a jury). To the argument that these restraining orders may be helpful to prevent domestic violence, I explain that the bill of rights is awfully dangerous. As I discuss in The Constitutionality of Social Cost, protections like Miranda and the exclusionary rule sometimes allow the bad guy to go free and do bad stuff. We don’t relax constitutional protections, which focus on the accused.