The question of government and the burden of proof

I'm big on what's-really-at-stake-level inquiries into the meanings of particular events that come onto our radar screen.

That assumes a high degree of importance in the matter of the Florida mass shooting and the renewed picking of the gun-policy scab in its aftermath.

Jenna Ellis, a constitutional law attorney and professor at Colorado Christian University, gets to the heart of the matter in an essay at The Federalist:

Fundamentally, this is about the government’s responsibility to prove I have committed a crime before taking away my rights. Let me explain.

The Second Amendment must be read in context of the entire law and the acknowledgement in the Declaration of Independence that our rights are pre-political, that our rights predate the Constitution and are therefore not grantedby government as mere privileges bestowed upon worthy individuals who satisfy some kind of government standard.

Our government does not have rights. Our government has limited powers carefully and specifically granted through the Constitution for the sole purpose of preserving and protecting all of the rights of the individual. What can the government constitutionally presume about me if I want to to own a firearm? Whose burden is it to show that I should or should not be able to possess a firearm?

This is why the whole Constitution matters and it matters in relation to the Declaration. Because your and my rights are pre-political. The government bears the burden of proving why I am an unfit gun owner, or an unfit parent, or have committed a criminal act, or any other accusation bearing legal consequences when my rights are at stake.

The government must presume that I am a fully fit citizen, meaning in legal terms that none of my rights can legally or properly be infringed upon unless and until the government shows proof by a legal standard that I have acted in some way contrary to the law and the sanction for my actions can result in the government denying certain rights, such as taking away liberty through imprisonment. The government cannot presume that I am going to act in an illegal manner just because my neighbor, my relative, or a 19-year-old in Parkland, Florida acted in an illegal manner. 

We care about how our government is allowed to treat us based on someone else’sactions. Each and every one of us has a right to be presumed competent, fit, and innocent. This is the heart of the matter for conservatives.

Even if the Second Amendment were to be repealed tomorrow, as some have suggested and called for, nothing about my legal status as a law abiding citizen would change. The government would not be able to change its legal presumption toward me and assume that I am a criminal before I commit criminal acts.

Once the government can shift the burden and make me prove my fitness and competency, then my government is treating me like a presumptive criminal. This isn’t problematic only when applied to arms ownership. It’s also problematic when applied to parental fitness, exercising religious freedom, speech, school choice options, economic choices, and any other legitimate action and choice that I as an American citizen am free and have the liberty to choose to do.

None of these rights or any others of the individual are severable from their status as unalienable or transformative by government whim into mere privileges. This is what conservatives mean by protecting liberty. We are preserving freedom from the government presuming we do not have legitimate free choice, without the government presuming without cause we are all criminals. 

Liberty means the government does not have authority to punish me before I have chosen to act contrary to law. The government does have legitimate authority to criminalize some conduct, but must prove that I have committed that criminal act before it may punish me.

Even in the midst of heartbreaking, terrible, atrocious tragedies, we cannot allow the government to remove our individual presumption of innocence collectively. Crimes and illegal acts unfortunately occur every day. So do wrongful prosecutions.

Just because my neighbor might have have committed domestic violence, doesn’t mean I should have to prove to the government I am not an abuser before I enter into a romantic relationship. Just because my neighbor might have committed child abuse, doesn’t mean I should have to prove to the government I am fit to parent before  I am allowed to have children.

In short government ought to have to puke all over itself to justify making that first encroachment on any individual's sovereignty.