The intersection of Gun Control, the Second Amendment, and Due Process

Someone is too dangerous to fly, they’re too dangerous to own a gun.  It seems simple enough right?  Well, the discussion is a little more nuanced than that.  The “no fly list” existed before 9/11, but it was merely an infant compared to the goliath it has become.  Before 9/11 there were 16 (that’s right, 16) people the government deemed “no transport” because of specific or suspected threats to aviation.  So the governmentally-imposed restriction on commercial air travel was minimal, in a country of 285 million people.

Immediately after 9/11, the list grew to several hundred.  More than a decade later, it is estimated that there are more than 47,000 names on the “no fly list.”  

And how did those names get there? 

The answer is – nobody knows for sure.  Since the Supreme Court has not recognized a Constitutionally guaranteed right to travel by commercial airline, there is no requirement that the government afford any individual “due process” before adding him/her to the list.  And so, over the years, there have been several publicized instances of folks being informed they are on the “no fly list” (by accident, or otherwise) for the first time at the airport terminal.  But since there’s no constitutional right at stake, it’s not so offensive, right?  Just a pain in the butt for a very small portion of the population (which, since 9/11 has increased to ~320 million).

But this is where the conversation gets tricky.  The Constitution does recognize the right to bear arms.  And a citizen cannot be deprived of a constitutional right without due process.  Get the rub?

Assuming the government can add you to the no fly list without due process (which is the subject of extensive litigation around the country), the justification is "we're not infringing anything in the Bill of Rights."  But the recent push to also disqualify those same folks of the right to purchase arms crosses a Constitutional line.

If the proposed legislation passes the Congress, it will quickly pass to the President’s desk for signature.  Thereafter, it will pass quickly to the U.S. District Courts for challenge.

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Happy Thanksgiving!

Expunge or shield your record before the job application.

Dumb mistakes carry long-term consequences.  Your misdemeanor conviction as a teenager will prevent you from getting certain jobs well into adulthood. Tickytack convictions have effectively barred a large portion of the population from meaningful jobs. To recapture this workforce Maryland’s General Assembly enacted substantial changes to the way “convictions” for minor offenses affect those convicted.  Effective October 1, 2015, the changes will both increase the availability of expungements, and create a new kind of protection – shielding – which has previously not existed in Maryland.

Changes to the Expungement law

 Prior to October 1, 2015, the law in Maryland prohibited expungement in certain situations where a defendant was convicted of a separate offense after the otherwise expungeable event.  Changes to the law removes that prohibition for all situations except probations before judgment.

Additionally, the law has been changed to permit folks convicted of crimes which, since the conviction, are no longer crimes (for instance: possession of less than 10 grams of marijuana, which was decriminalized in 2014), to expunge the former convictions.

The new “shielding” law

Under the new law, for certain “minor” crimes, Maryland permits someone who has been convicted, to petition to have their conviction “shielded” from the public.  The petition may be filed, at the earliest, three years after the completion of all the terms of their probation, parole, or mandatory supervision.  Convictions of crimes for which “shielding” is available are:

·         Disorderly conduct and disturbing the peace

·         Failure to obey a reasonable and lawful order
·         Malicious destruction of property
·         Trespass on posted property
·         Misdemeanor theft
·         Possession of certain controlled and non-controlled substances
·         Possession of drug paraphernalia
·         Driving without a license
·         Driving while license is canceled, suspended, refused, or revoked
·         Driving while uninsured
·         Prostitution

 “Shielding” is different than “expungement.”  Whereas an expungement compels destruction of all records of the incident, “shielding” merely hides the conviction from public view.  The conviction is still available to the police, health occupations boards, and certain employers and institutions that are subject to a statutory or contractual requirement to inquire into criminal background.  However, as to the public, and potential employers or educators, the law makes it illegal to compel disclosure on an application or in an interview.  It also makes it illegal for a potential employer or educator to refuse hire or admit an applicant solely based on the refusal to disclose shielded convictions.

Clean up your record, expunge or shield the past and get that job!