“Words are wind” – Tyrion Lannister, A Dance With Dragons (A Song of Ice and Fire)

What are “words”? Do they have a meaning? Is that meaning fixed or simply what the hearer wants to hear (or read)?

These are very valid questions in a world where words on paper, in books called “Revised Statutes” or “United States Code” or the “Constitution” can have very real impacts on living, breathing human beings.

Here’s an example: words on paper say that the government can take a certain amount of the money you own or earn, without your permission. These takings are called “taxes”. A “tax” is money that a government takes from taxpayers to fund government programs. These “taxes” are not voluntary. Taxpayers may not “opt out” or choose what government expenditures or programs their taxes go to fund. Politicians may lie by calling a “tax” a “premium” or a “fee”, but it is still a “tax”.

Behind every tax collection effort is the force of government, which means: a human agent of the government armed with a gun and with the power to deprive you of your liberty by putting you in jail. If you resist, you will be subject to physical force and could be injured, shot and possibly die.

Yes, words are wind, but they have very real meanings.

When a person says that a proposed law is “unconstitutional”, what do they mean? They mean that the proposed law violates one or more of the limits on government that are specified in a “constitution”. In the case of the United States Constitution, a “Bill of Rights” is included. This Bill of Rights does not GRANT rights to United States citizens; it ENUMERATES them for specific protection.

What is a “right”? The Declaration of Independence talks about “Natural Rights”. What does that mean? Natural Rights are those rights which are intrinsic to us as human beings. They are: the Right to Life, Liberty and the pursuit of Happiness (and Property). Anything that has to be provided by someone else through government force (i.e. health care) is NOT a “right”. It is a “claim” and if the claimant wants it for “free”, it is inherently immoral, because it must then be provided by coercion or slavery.

The First Amendment protects the right of free speech and religion, and to petition the government for a redress of grievances. HB 19-1177 impairs this right by only allowing a respondent only ONE try at getting an ERPO rescinded, with no provision for additional tries through extensions of the term.

The Second Amendment – “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed” [emphasis mine] – protects the right of individuals to keep and bear arms for any reason, and is regularly infringed by governments at every level through unconstitutional laws like HB 19-1177.

The Fourth Amendment – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” [emphasis mine]. This amendment establishes that people shall be secure in their homes and that their property may not be seized except upon probable cause.

The Fifth Amendment establishes that a person may not be compelled to be a witness against himself, “…nor to be deprived of life, liberty, or property, without due process of law…” [emphasis mine].

The Fourteenth Amendment (subsequent to the Bill of Rights) has a due process of law clause as well: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis mine]

What is “due process of law”? Simply put, “due process” in the administration of justice acts as a safeguard from arbitrary denial of life, liberty or property by the government outside of the law. It encompasses four concepts:

• Procedural due process. Government officers must follow fair procedures. These procedures include, at a minimum, notice, and an opportunity to be heard. HB 19-1177 through its provision for ex-parte hearings and issuance of a temporary extreme risk protection order without notice to the respondent violates this concept.
• Substantive due process. This is a nuanced concept. It is derived from the idea that due process is a restraint on the three branches of government (legislative, executive and judiciary) from calling something “due process” because it says so. In other words, government is not free to decide what constitutes “due process”. Over time, this concept has evolved to see if a right being violated is a “fundamental right” and if there is a basis for violation of that right. It protects citizens from arbitrary government actions. The right to property is a fundamental right which is being violated by HB 19-1177.
• Void for vagueness. This means that laws which are too vague for the average citizen to understand deprives them of due process. HB 19-1177 has several areas of vagueness, which should render it void for vagueness.
• Incorporation of the Bill of Rights. This is the legal doctrine by which the Bill of Rights is applied to the states (including Colorado) through the Fourteenth Amendment’s due process clause.

In short, any law that violates the “due process of law” is unconstitutional and illegal.

Now, I did not attend law school and I’m not a lawyer. I am, however a university educated business professional with a lifelong history of learning, reading and studying history. In the world in which I operate, words mean things; and what’s more, they mean the things that they are generally accepted to mean.

When I hear an attorney testify at a hearing that a law which clearly violates principles or rights outlined in the United States or state constitution, it makes me wonder if they teach different meanings for words in law school, or even if they teach that words mean whatever you want them to mean.

When I hear an attorney say that a forcible government taking is a “premium” because it’s being collected for an “enterprise”, I marvel at the facility by which she is distorting clear and common words that are in everyday use by ordinary people.

Therefore, when a Democrat in the General Assembly asserts that HB 19-1177 is “constitutional”, he is either lying intentionally or inadvertently misleading through ignorance. Either way, simply asserting a thing to be true doesn’t make it so. An “unconstitutional” law is also an “illegal” law, since the determination of legality derives from the constitution.

Progressives operate in a very different world – one that is detached from reality. In their world, an unconstitutional bill is “constitutional”, simply because they say so. A tax is really a “premium” and exempt from being subject to Colorado’s Taxpayer Bill of Rights, simply because they say so. Up is down, men are women and black is white in the progressive’s world. Gun “safety” isn’t following the four laws of gun safety, it’s enacting gun control laws, and calling them something they are not. Objective reality does not change simply because a progressive says a thing is something it is not.

This brings us back to HB 19-1177. As of this writing, thirteen other states have enacted Extreme Risk Protection Order laws. I have not studied them in detail, and heard in testimony that courts have found them “constitutional”. But in a world where words mean things, laws similar in nature to HB 19-1177 are not “constitutional”, regardless of what a US Attorney or a court says. Remember, at one time, Dred Scott v. Sandford was “constitutional” (because it was a Supreme Court ruling) and the “law of the land”, when clearly it was in fact a highly immoral and evil ruling.

Since HB 19-1177 is likely to pass, let’s at least be honest about it. It is not constitutional as written, and saying it is doesn’t make it so. I call for a group of attorneys (and donors to fund them) take the State to court to overturn this law, similar to how Amendment 2 was challenged and later overturned in 1996.

Supreme Court, here we come!

By Richard D. Turnquist

February 23, 2019

For my analysis of HB 19-1177, the “red flag” law, click here.