There has been quite a bit of analysis concerning Florida’s new anti-firearms legislation but so far very little about how these laws will be used in practical terms. And this is where the proverbial rubber meets the road. Who will use it? How will it be enforced? And what are the implications for an individual Floridian who owns a gun that can be rather easily confiscated?
Liberty Nation’s Legal Affairs Editor, Scott Cosenza offers some surprising and yes – horrifying possibilities that do not bode well for gun owners in The Sunshine State. Here is my brief interview with him on the practicality of an impractical law.
Leesa K. Donner: Well Scott First of all, give me your reaction to this sweeping new law in Florida as both a lawyer and a gun enthusiast.
Scott Cosenza: Well, it’s a tragedy in both regards. It is a continuation of “legislation through anecdote,” which is to say that the people who wish to confiscate firearms in the United States have managed to produce a more compelling and more sympathetic storyline, or narrative, a sadder story, and so they’ve won the argument, rather than on policy grounds.
I don’t think we’ve seen any indication, by politicians or others, that say, “Yes, in fact, people who wish to further restrict the rights of others to keep and bear arms have presented a compelling case that these new restrictions will be at all effective,” or result in any meaningful change, except for the feelings of those who wish to put forth these measures, and that is legally and otherwise, I think, an unacceptable way to proceed on legislation that impacts and impinges on a fundamental right, so fundamental in fact that it was mentioned as number two in the Bill of Rights, by the very founders of this republic.
LKD: The whole law is a disgrace but what in particular concerns you about it from a legal standpoint?
SC: So the most troubling aspect of the law is the new cause of action that it allows, whereby people or police officers can go to a court and ask that a person’s Second Amendment rights be eliminated temporarily, without their knowledge or having any say, and then provide for an extension of that, up to a year, and require them to surrender their firearms.And this is again, without the full process of what, in any other instance, would be a criminal offense or require a finding of beyond a reasonable doubt, and that’s not the standard of evidence we expect in the U.S. It is a reduced civil standard, and that’s unacceptable when we’re dealing with fundamental rights, and as the Supreme Court has said, in the Heller Decision, which is the top controlling decision about Second Amendment rights, that it is a fundamental right, and for courts to restrict and violate fundamental rights is quite disturbing.
LKD: All right, now let’s look at the practical application. Let’s say you and I have a fight, and I’m angry with you, so I decide to do you one better and call you into the local police department, and say, “I think this guy’s off his rocker. And by the way – he owns a gun.”
SC: It could even be something much more minor than that. Let’s say you have a neighbor that you hate because the apples from his trees always fall in your yard, and like, you know, they say that the worst feuds are based on the smallest of transgressions. And I mean, this is something that goes on all the time, where people get into these sort of things where they despise somebody passionately, over something that somebody else may consider to be relatively minor, and this presents a way for one human being and go ahead and use the state to punish another, and the protections against that are not terribly robust.
Practically speaking, I think it will be abused, most likely and most frequently, by spouses or other romantic partners who wish to punish their significant others, who are not behaving as they would wish, whether it’s running around on them, or leaving them, or whatever the case may be. Just like we now have a minor crisis in the domestic abuse courts, of the same thing, which is to say that we have adopted, in most jurisdictions in this country, a sort of position whereby any woman who alleges an act of domestic violence is automatically believed.
The law does not treat men and women equally, to be sure, in this instance. Women are treated as deserving and requiring of more protection than men, and their word is treated as having greater authority than men, so she says, “He slapped me in the face, and I’m scared he’s going to do that again, or worse,” and he says, “I didn’t slap her in the face, and in fact, she threw a shoe at me and told me she was going to kill me.” And the cops come, and the ruling that comes down from their bosses is, “Let’s get the guy out of the house, get him away from the scene, let things cool off,” and you know, that is a valuable thing in many instances.
And also in many instances, it’s just a way to get back at a guy that a woman is mad at, and I think the same will be true here, and that’s one of the reasons why it’s so important to have these due process protections, because it allows the accused to present — either to poke holes in the case against them or present evidence in their own defense.These are fundamental rights that we’re talking about. We’re not talking about somebody’s license to do whatever. Free speech, firearm rights, voting rights, all these things are fundamental in our republic, and that’s why they were enshrined in the Bill of Rights, because they were that important, and to set aside the protection of them in service to safety is a sad day for liberty, I think, Leesa.
LKD: So, let’s just expand on this a little bit more. I’m mad at you. I call the police. I say I’m scared. They take away your guns. Now, what do you do?
SC: Now I have to go to a hearing and prove to the judge that I’m not crazy or dangerous. That’s what happens. I have to prove a negative now.
LKD: How do you do that?
SC: How the hell should I know? You can’t. I mean, right? The thing is you can’t prove a negative. So, you’re a judge, and you have an order in front of you that some other judge granted, and it said that you know, “Leesa said her neighbor, Steve, was going to hurt her, and blah blah blah, after an altercation with her son over a parking issue, and blah blah blah.” You can fill in the details here yourself, how this might work out in real life.
And I’m the judge, and I’m sitting there, and I’ve got this guy in front of me who says, “I’m 43 years old. I’ve never been arrested. I’ve had a couple of parking tickets. I’m a firearms enthusiast. My neighbor is not a firearms enthusiast, and in fact, she hates guns, and she’s doing this to punish me.” How am I to know, if I’m the judge? You know, I have to go now get mental health evaluations or something like that? So, it’s a sticky wicket. We’re just going to have to see how these courts develop a way to deal with this in practical terms.
LKD: So, what you are essentially saying is that in practical terms this law will be a mess for the police, for the judges – not to mention the average firearm enthusiast.
SC: Well, this is another way that we will see police officers be able to — again, without much in the way of due process — take away rights of the citizenry. I mean, it’s not going to be a year in, Leesa, before we read the first story about some guy who’s a cop, and just to piss off his ex-brother-in-law, he did this, to a gun enthusiast.
And there are other concerns as well. People, who publicly make their living on guns, can you imagine the Sword of Damocles that is hanging over their heads? How about a person who’s a firearms instructor, for instance? I mean, anybody who knows him, it’s like big trouble is just around the corner — ready and waiting for them.
LKD: Finally, do you think this law will hold up if the Supreme Court takes this up?
SC: That’s a hard question to answer. I so wish for the answer to be no. I don’t know that I can look into my crystal ball objectively, but I’m issuing this answer from Las Vegas, Nevada, so I’ll gamble on it, and say that it will not pass Constitutional muster, under the current composition of the Supreme Court.