Tim Lajoie: Right To Restrict 2nd Amendment? No!

Tim Lajoie is a Republican candidate for Androscoggin County Sheriff. He is the former Lewiston City Republican Chair and ran in 2012 for the State Legislature. His candidacy was covered by Undercover Porcupine twice: “The Lajoie Campaign Standard” and “The High Road In Politics: Principles Over Party.”

This editorial was originally posted on his official campaign Facebook page, “Tim Lajoie For Androscoggin County Sheriff.”

The Maine Constitution recognizes the inherent rights of men, as given by their Creator. Men are born free, with rights even the government cannot take away from them. Defense of one’s life and liberty is a natural right; hence the possession of the means to do so is protected in the Maine Constitution.

“All people are born equally free and independent, and have certain natural, inherent, and inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.” Article 1, Section 1, The Constitution of the State of Maine

“Every citizen has a right to keep and bear arms and this right shall never be questioned.” Article I, Section 16, The Constitution of the State of Maine

It seems pretty clear, doesn’t it? “Shall never be questioned…shall not be infringed” is very unambiguous. Yet, this is exactly what is happening across the country—questioning our right to keep and bear them—with Connecticut being the most prominent example of “infringement” at the moment. Congress, state legislatures, and city councils all over America are trying to question this very fundamental right of U.S. citizens.

Those entrusted to preserve our rights—if they are not “questioning” them—are now trying to re-define what they mean. As it applies to the 2nd Amendment, what kind of arms we can own, how many bullets they can hold, and where we can carry them are questions being debated in legislatures all over America today. Some elected officials are even asking people who own guns why they need them in the first place.

This attempt to place restrictions on firearms ownership should be seen as an attempt to restrict our rights…because that is what it is. Further, this attempt is being based on evidence that would not convict someone in open court or even allow an indictment. Restrictive gun laws are unconstitutional and violate due process.

What do I mean by that? Let me explain. Before one can be brought before a court of law and convicted of a crime, which may result in the loss of your liberty, the accuser must have an evidentiary starting place. You cannot simply say, “I believe this person belongs in prison,” fail to provide any evidence of a charge, and expect the court to go along with you. Unless you’re being charged under the Patriot Act or National Defense Authorization Act (sarcasm intended…but that’s a sermon for another day).

If such evidence is provided, the accused in America get two presumptions: the presumption of innocence and the presumption of sanity. Presumption of innocence requires that we accept that the accused is innocent, until the burden of proof is met to overcome this presumption. Presumption of sanity requires that all who are accused be presumed sane, unless sufficient evidence exists to prove insanity. Guilt and insanity are never presumed, they must first be proven; the former by the accuser and the latter by the accused.

It is the accuser who has the burden of proof to demonstrate guilt and meeting that burden encompasses meeting two other burdens: 1) the burden of production and 2) the burden of persuasion. The burden of production requires that some evidence be put forward to establish a factual basis on which to base an accusation and proceed with charges. The burden of persuasion requires that those facts must prove guilt beyond a reasonable doubt before determining guilt and proceeding to any subsequent discussion of loss of liberty or other punitive measures. There is very basic legal theory, learned by any first-year law student. So, let’s summarize this briefly:

There must be evidence to accuse someone of a crime

The accused is presumed innocent

The burden of proof is on the accuser

The accuser must bring forth evidence of guilt

That evidence must persuade a judge or jury of guilt beyond a reasonable doubt

This evidence must meet certain criteria. You cannot simply introduce just any evidence. Evidence that is typically admissible falls into the following categories:

Direct evidence (ex. eyewitness testimony from a first-hand witness)

Circumstantial evidence (ex. a fingerprint at a crime scene or on another piece of evidence)

Testimonial evidence (ex. oral testimony given under oath about the accused)

Real evidence (ex. physical evidence like possession of the murder weapon, drugs, or other physical evidence connecting someone to a crime)

Scientific evidence (ex. forensic evidence like DNA or a technological fingerprint)

Demonstrative evidence (ex. aids used in court to illustrate any of the above—charts, graphs, etc.)

This type of evidence is not allowed:

Hearsay (ex. secondhand testimony “I heard someone say that he did it”)

Irrelevant (ex. evidence which does not directly implicate a defendant)

Cumulative or prejudicial (ex. evidence which confuses, misleads, or unfairly prejudices a jury)

Privileged (ex. discussions between client and attorney, spouse, clergy person, therapist, etc.)

Lay opinions (ex. subjective beliefs)

This is called due process. Most of us gun advocates know this…and get it. This process ensures that no citizen of the United States is executed, imprisoned, fined, or otherwise sanctioned without there first being an accusation, legitimate evidence to support it, and it persuades an impartial audience (judge or jury) of guilt.

How does all of this relate to the gun control debate? Efforts to deny gun rights—whether future purchases, regulating current firearms lawfully owned, or restricting their possession—are not based on due process. Consider any recent gun tragedy. Each tragedy has been used to justify any number of efforts for placing gun restrictions on law-abiding gun owners, who were never involved in the tragedy. Why? Some would call it guilt by association. Use yourself as a test case—those of you who own guns and have done nothing criminal with them. Any gun legislation that infringes on your 2nd Amendment right is not based on any evidence that would convict you in open court. Let’s look at the argument as it would be made. Consider Scenario #1.

Gun-control advocate (GCA): “Your, Honor, Mr. Citizen should not be allowed to own a semi-automatic pistol with a 15 round magazine.”

Judge: “Why is that?”

GCA: “Because a similar pistol was used in a mass-shooting.”

Judge: “Was Mr. Citizen the shooter?”

GCA: “No, your Honor.”

Judge: “What case do you bring to support taking away Mr. Citizen’s pistol?”

GCA: “He owns a similar pistol to the one used in a mass-shooting.”

Judge: “How is that relevant to Mr. Citizen’s pistol?”

GCA: “It’s the same kind of pistol.”

Judge: “You said that before. What evidence do you offer that Mr. Citizen should not own his?”

GCA: “By owning the same kind of pistol, I believe there is a risk Mr. Citizen possesses the potential to perpetrate the same type of crime.”

Judge: “Oh? Do you have any evidence to support that?”

GCA: “Yes, your honor, I do.”

Judge: “Please show it to the court.”

GCA: “Mr. Citizen possesses the same type of pistol as used in the mass-shooting.”

Judge: “Yes. You said that. What evidence do you offer that Mr. Citizen will commit the same type of crime with HIS similar pistol?”

GCA: “It is our feeling that possessing it creates the risk he will do so.”

Judge: “But you have no evidence that he intends to commit a crime with his, other than the fact that he owns the same type of gun?”

GCA: “No, your honor.”

The citizen gets the presumption of innocence in America in our criminal justice system. There is no presumption of innocence in this scenario, no admissible evidence offered against Mr. Citizen that would justify depriving him of his 2nd Amendment rights. There is no admissible evidence presented that implicates him in any crime and no evidence which demonstrates guilt. Thus, there is no legal standing to sanction him by depriving him of his 2nd Amendment rights. Any argument in favor of doing so is based on irrelevant or subjective testimony.

You can see the absurdity of the argument. You could very easily justify locking someone up for murder because someone else committed murder using this type of logic. Premise #1 states: Insane killer is a human being. Premise #2 states: Insane killer had a gun. Conclusion: All human beings with guns are insane killers. Ridiculous, right? The conclusion does not logically follow the premise.

Consider Scenario #2:

GCA: “Your, honor Mr. Citizen should be required to demonstrate he is sane before he is allowed to buy a gun.”

Judge: “Why is that?”

GCA: “Because an insane man, using a semi-automatic rifle, tragically murdered multiple people in a shopping mall.”

Judge: “Was Mr. Citizen that man?”

GCA: “No, your honor.”

Judge: “Do you have reason to believe that Mr. Citizen is insane?”

GCA: “No, your honor.”

Judge: “Then why does he need to prove that he is sane?”

GCA: “Because he wants to buy a gun.”

Judge: “I’ll ask again…If you have no evidence that he is insane, why does he need to prove that he isn’t before he buys a gun?”

GCA: “Because insane people sometimes kill other people with guns.”

Judge: “Yes. That’s true. But you have no proof to offer that Mr. Citizen is insane?”

GCA: “No, your honor, we don’t.”

Same logic applies, just the scenario is different. If an individual were brought before a judge or jury with this kind of evidence, is there any question what the outcome would be? Would a driver lose his privilege to drive because someone else drove drunk and plowed into a group of people on the sidewalk? No. No reporter would lose his 1st Amendment rights because some other reporter libeled someone else, nor would society tolerate it.

Gun-control advocates cannot deny 2nd Amendment rights on an individual-by-individual basis. If they would take any individual law-abiding gun owner to court and try to take away his 2nd Amendment rights, they could not meet the burden of proof that would justify it.

All of the evidence they introduced would be ruled inadmissible. Instead they use the legislative process to introduce evidence—evidence which would never be allowed in open court against an individual—to effect sweeping and restrictive gun control legislation against law-abiding citizens as a group. Restrictive gun laws which deprive a citizen of the right to bear arms, even as an unnamed group, deny individuals the presumption of innocence and due process of law.

If no evidence is brought forth to justify denying an individual his right to bear arms, how can you deny the same right to a group of like individuals? With no evidence, you cannot meet the burden of production. When you cannot meet the burden of production, you cannot meet the burden of persuasion necessary to overcome reasonable doubt. Thus, you have not met the burden of proof. You cannot determine a person’s guilt on the basis of behavior committed by someone else or the subjective opinion of what someone thinks you might do. That is not evidence.

The Maine Constitution states the right to keep and bear arms shall never be questioned (Article 1, Section 16). The Maine Constitution also states, “No person shall be deprived of life, liberty, or property without due process of law…” (Article 1, Section 6a). To deny a citizen’s right to keep and bear arms is to deny them liberty. We do not surrender our rights—any rights—as citizens because someone else abused theirs.