Extreme Risk Protection Orders Violate 2nd, 5th and 14th Amendments of United States Constitution, Fails Heller and Bruen Precedent

Disenfranchising the Constitutional Right to Due Process- Opposing Pennsylvania’s HB 1018: Extreme Risk Protection Orders (‘ERPO’s)

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RE: Testimony of Kristie Tertel– National Director of Legislative Policy, The Heller Foundation

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ATTN: House Judiciary Committee (PA)– Opposition to HB 1018: Extreme Risk Protection Orders

April 26, 2023

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Dear Honorable Mr.  Chairman and ranking members of the House Judiciary Committee-

Prima facie, my name is Kristie Tertel, and I am the National Director of Legislative Policy at The Heller Foundation. I have included my non-profit organization’s written testimony in OPPOSITION to HB 1018, as amended. However, as a lifelong, 38-year resident of Pennsylvania, this testimony, infra, dually represents my opposition to HB 1018 in my personal capacity as a private citizen.

First, The Heller Foundation OPPOSES Pennsylvania’s HB 1018: Extreme Risk Protection Orders as it punishes victims of domestic violence and revokes all Constitutionally-protected ‘due process’ rights afforded to all Americans in the Fifth Amendment of the United States Constitution.

As such, both The Heller Foundation and I, Kristie Tertel, urge you to vote ‘no’ to HB 1018 as it is unconstitutional- directly breaching the country’s binding national precedent set forth in Heller and Bruen landmark United States Supreme Court decisions; and violates the Pennsylvanian and United States Constitution’s’ Second Amendment (as well as the United States Constitution’s 14^th Amendment) protecting an individual, human right to self-defense and to lawfully bear arms. The Heller Foundation is a 501c(3) non-profit organization that leads both Pennsylvania and the nation in advocating for our God-given, Constitutionally-entrenched right to bear arms and self-defense. The Second Amendment is a human right. Our tireless work leads the way to setting binding precedent through lawsuits and advocacy for Pennsylvanians and their families. In addition, 2023 marks our 15^th year in advancing policy measures to help close the gap between legal and lived equality for all residents of the Commonwealth of Pennsylvania- and beyond. The Heller Foundation’s ground-breaking work and track record of success proves we have also re-invested time and resources tirelessly throughout the state simply because our organization understands the great importance of adequate, effective representation- not only throughout Pennsylvania; but, across the entire country.

Sponsors in support of the bill should take note that a major omission was left out of the initial legislative intent of HB 1018- being a preventative measure of ‘protecting’ potential victims of domestic violence by unlawfully confiscating their guns and disenfranchises their first, second, fifth and fourteenth Amendment rights herein (in the attempted enforcement of HB 1018) protected by the United States Constitution. Failing to enforce ‘common sense gun control’ laws already on the books in other states proves that this simple administrative issue needs to be addressed first, before any new laws are made. For example, The Sutherland Springs Baptist Church shooter was already ‘disqualified’ from possessing and purchasing firearms due to multiple domestic violence and other disqualifying criminal convictions from years prior, yet these were not reported to NICS- as required by both state and federal law by the appropriate authorities- and this otherwise ‘prohibited person’ illegally purchased and possessed multiple firearms in Texas due to this unthinkable oversight. Henceforth, six years ago, the Texas Sutherland Springs Baptist Church mass murderer was ALREADY in illegal possession of otherwise legal guns prior to and at the time of the mass church shooting. Hence, this bill would not have prevented the shooter from possessing all of these  firearms because of the gross negligence and lack of logistical fortitude by both Texas and federal agencies, already required by both state (TX) and federal laws. Thus, the fraudulent ‘preventative’ intent and ‘public safety’ purpose are entirely obsolete and meaningless to due to this extremely important oversight of the bill’s co-sponsors throughout the state of Pennsylvania.

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The Sutherland Springs shooter was only already unlawfully in illegal possession of guns and the criminality did absolutely nothing to prevent the mass shooting by a ‘prohibited person’, as criminals- by their very definition- do not follow the law. Henceforth, mandatory reporting of ‘prohibited persons’ by both state and federal legislation is ALREADY required in Pennsylvania. Vote ‘no’ on HB 1018 has no effect, whatsoever, on protecting victims of domestic violence, preventing crime and deterring future criminal activity by making the purchase and possession of firearms- required by laws already on the books to be reported to the FBI and NICS- for the bill to have any effect and/or be put to use in a real-world scenario.

Furthermore, The Heller Foundation vehemently opposes HB 1018 as it is in direct conflict with the Bruen decision, the Heller decision and the United States Constitution. In addition to Bruen, “The Heller case is clearly one of the most important Second Amendment cases in American history, if not the most important,” notes UCLA Law School professor, Adam Winkler. The Heller Foundation’s Founder and Executive Director, Dick Heller, was the key plaintiff and namesake in the Supreme Court of The United State’s landmark 2008 decision- DC v Heller.

In 2022, the United States Supreme Court declared a ‘new’ standard for Second Amendment jurisprudence in deciding Bruen. Fundamentally, Bruen struck-down the state’s concealed carry law, but also established a new “text, history and tradition” standard by which courts must rule on Second Amendment challenges. Accordingly, the Bruen “text, history and tradition” two-prong test now governs all laws, nationwide, restricting the right to keep and bear arms; and, consequently, invalidates any and all gun laws that fail to meet said standard, infra. This bill fails the Bruen and Heller tests and is therefore unconstitutional for the following reasons, supra.

Prima facie, the first step of the Bruen test requires courts to determine whether the “Plain text” of the Second Amendment in the United States Constitution covers the challenged action. This is definitely the case here. As such, since the ‘text’ does in fact cover the action at issue, and now, the government (PA)  bears the burden of showing that the challenged regulation is consistent with the nation’s historical tradition of regulating firearms, as set forth in Heller. HB 1018 and it’s co-sponsors have all failed to meet that standard in substance, purpose, legislative intent and in today’s closed Pennsylvania House Judiciary Committee Hearing- where public testimony was not allowed- as well as within the context of the proposed bill, as amended, itself.

Further, the second prong of the Bruen test requires the government to prove that a regulation implicating people, conduct or arms falling within the ‘plain text’ of the Second Amendment is consistent with the American historical tradition of regulating firearms. HB 1018 does not meet that requirement and, dually, violates the 5^th Amendment’s ‘Due Process’ Clause guaranteed in the United States Constitution, as well.

Consequently, The Heller Foundation urges all members of the Pennsylvania House Judiciary Committee and all elected members of the state House and Senate to vote ‘no’ to HB 1018. This unconstitutional bill is akin to failing the standards set by the United States Supreme Court in both the 2008 DC v. Heller decision as well as 2022’s NYSRPA v Bruen 6-3 majority decision, insofar as HB 1018 violates the 14^th Amendment of the United States Constitution through ‘preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public.” Bruen’s test reinforces the Heller decision, and as such, HB 1018 in unconstitutional on the grounds of requiring a ‘special need’ (for self protection) by creating and later enforcing ERPO’s and is in direct violation of the Second Amendment, as well.

Moreover, in Heller, Justice Antonin Scalia, wrote in the 5-4 majority opinion, that the Second Amendment is an “individual right of the people to keep and bear arms, shall not be infringed” and the binding precedent set forth in Heller codified this human right, of which, HB 1018 is breaching. Overall, HB 1018: Extreme Risk Protection Orders is unconstitutional, illegal, immoral, unethical and unsound. The Heller Foundation OPPOSES HB 1018 and urges the Illinois Senate and ranking members of the Judiciary Committee to vote ‘no’ (AGAINST) on HB 1018, as amended.

In conclusion, thank you in advance for any and all consideration on this imminent human right, public policy issue and Constitutional matter. The Heller Foundation encourages you to OPPOSE HB 1018: Extreme Risk Protection Orders.

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Respectfully Submitted,

Kristie J. Tertel

National Director of Legislative Policy,

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The Heller Foundation

www.HellerFoundation.org

T: (610) 442- 4628