¶42 (dissenting) — Washington state law categorically prohibits persons accused — but not yet convicted — of serious crimes from possessing firearms. RCW 9.41.040(2)(a)(iv). The law automatically restricts the fundamental rights of individuals who have not been found to have committed any crime, the law applies to individuals not accused of a violent crime, the law denies arrestees the right to be heard before they are denied fundamental rights, and the law denies judges the opportunity to use their discretion in making an individual determination of dangerousness. Each of these results is inconsistent with the essential fairness provisions of procedural due process.11 I respectfully dissent.
¶43 Because I find that RCW 9.41.040(2)(a)(iv) violates due process of law, I do not address the majority’s analysis of article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution.
DISCUSSION
¶44 We must recognize what the statute at issue does. RCW 9.41.040(2)(a)(iv) categorically prevents any person
*168from possessing firearms while pending trial for a series of statutorily enumerated serious crimes. The judge must find only probable cause that the accused committed the crime— there is no opportunity for an individualized hearing of dangerousness (indeed, the facts of this case demonstrate that judicial discretion will be overruled by the statute). The accused is deprived of the fundamental right to possess firearms and faces additional criminal prosecution upon exercising that right. See State v. Sieyes, 168 Wn.2d 276, 287, 225 P.3d 995 (2010) (recognizing that the right to bear arms is fundamental).
¶45 Though the right to bear arms is not absolute, regulation that infringes on an individual liberty must be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). This required fundamental fairness analysis, omitted by the majority, is the hallmark of our procedural due process review. United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
The categorical prohibition on the possession of firearms for indictees violates procedural due process
¶46 The due process clause provides that no state shall deprive any person of “life, liberty, or property, without due process of law.”12 U.S. Const, amend. XTV; Wash. Const, art. I, § 3. This protects individuals from governmental interference with rights “ ‘implicit in the concept of ordered liberty.’ ” Salerno, 481 U.S. at 746 (quoting Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S. Ct. 149, 82 L. Ed. 288 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)). Regardless of the interests involved, “[t]he fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363 (1914).
*169¶47 The Supreme Court has applied a procedural due process analysis to deprivation of a defendant’s liberty pretrial. Salerno, 481 U.S. 739. In Salerno, the Court considered the constitutionality of the provisions of the “Adam Walsh Amendments to the Bail Reform Act of 1984” (hereinafter Adam Walsh Amendments) that permitted a defendant to be detained pretrial on a showing that the defendant was likely to commit future crimes. See id. at 744, 750. The Court sustained the constitutionality of the Adam Walsh Amendments over a due process challenge specifically because the act explicitly required an individualized showing of dangerousness by clear and convincing evidence before restraining the defendant’s liberty. 18 U.S.C. § 3142(f); Salerno, 481 U.S. at 750. The act was not “a scattershot attempt to incapacitate those who are merely suspected of these serious crimes,” and a finding of probable cause that the defendant committed the charged crime was insufficient to restrict the defendant’s liberty. Salerno, 481 U.S. at 750. Instead, Salerno required “a full-blown adversary hearing” in which the government must “convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Id.
¶48 Salerno’s due process analysis of pretrial detention applies equally to the pretrial prohibition on the possession of firearms. Federal courts have applied the Salerno standard in assessing the federal Adam Walsh Amendments,13 various provisions of which have been held facially unconstitutional by numerous federal district courts. See United States v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011); United States v. Smedley, 611 F. Supp. 2d 971 (E.D. Mo. 2009); United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Torres, 566 F. Supp. 2d 591 *170(W.D. Tex. 2008).14 Like the Washington statute, the Adam Walsh Amendments identify a subset of serious crimes15 and require that all persons indicted for those crimes are prohibited from exercising certain liberties, including possession of a firearm, without an individual determination of risk. 18 U.S.C. § 3142(c)(1)(B). Like the Adam Walsh Amendments, the statute at issue is incompatible with the requirements of procedural due process.16
¶49 In assessing whether a right to due process exists, we examine whether the person has been deprived of a liberty interest, and we examine the process by which that liberty was denied. In re Pers. Restraint of McCarthy, 161 Wn.2d 234,240-41,164 P.3d 1283 (2007) (citing Wilkinson v. Austin, 545 U.S. 209, 221,125 S. Ct. 2384,162 L. Ed. 2d 174 (2005)). We initially consider whether the individual is being deprived of an interest that arises from “ ‘the Constitution,’ from ‘guarantees implicit in the word “liberty,” ’ or ‘from an expectation or interest created by state laws or policies.’ ” Id. (quoting Wilkinson, 545 U.S. at 221). Once we have determined that an individual has been deprived of a liberty interest, our test for the degree of due process required in a particular case follows the federal standard in balancing three factors: the private interest to be protected, the risk of erroneous deprivation of that interest by the *171government’s procedures, and the government’s interest in maintaining the procedures. Morris v. Blaker, 118 Wn.2d 133, 144-45, 821 P.2d 482 (1992) (citing Mathews, 424 U.S. at 335).
¶50 Applying this analysis, it is clear that RCW 9.41-.040(2)(a)(iv) violates due process.
A. RCW 9.41.040(2)(a)(iv) burdened Jorgenson’s fundamental right to bear arms
¶51 The right to possess firearms falls within the scope of the right guaranteed by article I, section 24 and by the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); Sieyes, 168 Wn.2d at 291; State v. Rupe, 101 Wn.2d 664, 706-07, 683 P.2d 571 (1984). Recognizing this right, we also recognize that Jorgenson had a liberty interest in this right sufficient to trigger a due process analysis. McCarthy, 161 Wn.2d at 240 (“ A liberty interest may arise from the Constitution.’ ” (quoting Wilkinson, 545 U.S. at 221)). We do not recognize a hierarchy of constitutional rights; the fact that a right is enumerated renders it fundamental and elevates it above all nonfundamental interests. Heller, 554 U.S. at 634; see also Washington v. Glucksberg, 521 U.S. 702, 719-20,117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997).
¶52 RCW 9.41.040(2)(a)(iv) clearly imposes a substantial burden on Jorgenson’s liberty interest. The law not only renders unlawful the otherwise lawful possession of firearms, but it also allows the State to charge an individual with a substantive offense and to impose additional punishment. Id. This statute is among the most prohibitive in the nation, as it denies possession of firearms to a class of individuals who have not been proved guilty. Only two other states impose such a categorical restriction on the fundamental rights of a class without due process; neither has yet been scrutinized judicially. See Haw. Rev. Stat. § 134-7(b); Ohio Rev. Code Ann. § 2923.13(A)(2)-(3).
*172 B. The statute deprives the defendant of fundamental rights
¶53 Jorgenson’s fundamental right to bear arms is not unlimited. Heller, 554 U.S. at 626 (noting with approval long standing prohibitions on the possession of firearms by felons and the mentally ill). However, Salerno makes clear that the regulation of pretrial arrestees’ liberties requires an individualized determination of risk to ensure that individuals are not erroneously deprived of their fundamental rights. See United States v. Laurent, 861 F. Supp. 2d 71, 108 (E.D.N.Y. 2011) (citing Salerno, 481 U.S. at 751); United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2006); see also United States v. Williams, 616 F.3d 685, 692-93 (7th Cir. 2010); Arzherger, 592 F. Supp. 2d at 602-03. “Absent any individualized determination, there is simply no way of knowing whether the deprivation of liberty is warranted or wholly erroneous.” Smedley, 611 F. Supp. 2d at 975.
¶54 The mandatory restrictions of RCW 9.41.040(2)(a)(iv) create the irrebuttable presumption that the safety of the community cannot be reasonably assured absent the restrictions on arrestees of certain crimes. Cf. United States v. Polouizzi, 697 F. Supp. 2d 381, 390, 391 (E.D.N.Y. 2010) (holding that the Adam Walsh Amendments, in categorically preventing an individualized determination of risk, “provide [ ] near certainty of erroneous deprivation of defendant’s liberty interest”). This presumption, akin to the presumption incorporated in the Adam Walsh Amendments, unjustifiably burdens the fundamental rights of some individuals. The majority asserts that “ ‘some categorical disqualifications are permissible.’ ” Majority at 163 (quoting United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010)). But the majority overlooks that Skoien specifically referred to persons already convicted of violent misdemeanors, not untried defendants still entitled to a presumption of innocence. 614 F.3d 638. Courts have long recognized the distinctions between *173those convicted of a crime and pretrial detainees.17 Scott, 450 F.3d at 878 (contrasting pretrial releasees with convicted persons and noting that the latter “ ‘is no longer entitled to a presumption of innocence or presumptively entitled to his [or her] freedom’ ” (quoting United States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993))). No court has upheld the categorical deprivation of a fundamental right or the imposition of special bail conditions based solely on the fact of an arrest and the finding of probable cause. Id. at 874.
¶55 RCW 9.41.040(2)(a)(iv) automatically strips the fundamental right to possess firearms from persons accused of incest, child molestation, indecent liberties, promoting prostitution in the first degree, sexual exploitation, and vehicular assault or homicide, in addition to violent crimes. No nexus necessarily exists between these crimes and future violence arising from possession of firearms, and the State does not attempt to articulate any nexus.18 The bald assumption that persons accused of these crimes are more likely to commit crimes than other members of the public is overbroad and conflicts with the presumption of innocence. Scott, 450 F.3d at 874. While trial courts may presume the *174validity of criminal charges in determining the conditions to permit a pretrial release, courts may not presume that a defendant’s liberty may be restricted based solely on the mere fact that a defendant is charged with a crime. Salerno, 481 U.S. at 750; Bell v. Wolfish, 441 U.S. 520, 538, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Scott, 450 F.3d at 874 n.15.
¶56 The federal statutory scheme explicitly details what must occur to sufficiently limit the risk of the erroneous deprivation of fundamental rights. Beyond merely making an arrest and the finding of probable cause, the government must “convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Salerno, 481 U.S. at 750; see also 18 U.S.C. §§ 922(g)(8), 3146. RCW 9.41.040(2)(a)(iv) requires the deprivation of individual liberty on probable cause without any showing of future dangerousness. Because not all arrestees charged with serious crimes can be shown to be dangerous, the statute guarantees the erroneous deprivation of certain fundamental rights.
C. The State’s general interest in public safety, without an individualized determination of risk, does not outweigh Jorgenson’s interest in his fundamental right to bear arms
¶57 The State’s regulatory interest in community safety outweighs an individual’s private liberty interest under special, limited circumstances. Salerno, 481 U.S. at 749. Individuals may be detained if they pose a risk of flight or if the State presents evidence that they pose a danger to witnesses. Id. In determining the validity of the government interest, courts balance the nature of the interest and the burdens that an additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
¶58 As in Salerno, the State’s interest in preventing danger to the community is a legitimate regulatory goal. 481 U.S. at 747 (citing Schall v. Martin, 467 U.S. 253,104 S. *175Ct. 2403, 81 L. Ed. 2d 207 (1984)). Indeed the State generally has a valid interest in preventing all crime. Id. at 749-50. However, this general interest in public safety must be balanced against an individual’s strong interest in our fundamental liberties. Id. at 750-51. A general interest alone is not sufficient to overcome an individual’s strong interest in fundamental rights. Id.
¶59 A judicial determination of probable cause that the defendant committed the charged crime is insufficient in itself to justify deprivation of a fundamental right. Id. at 750 (statute valid only with probable cause and with individualized determination of dangerousness); Scott, 450 F.3d 863 at 874 (“arrest alone [does] not establish defendant’s dangerousness; it merely trigger[s] the ability to hold a hearing during which such a determination might be made”). In order to subordinate an individual’s fundamental liberty interest to the needs of society, a judicial officer must find by clear and convincing proof that an arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Salerno, 481 U.S. at 750. Probable cause alone does not elevate the State’s general interest in preventing crime to the point that would warrant denying Jorgenson his fundamental rights. Compare majority at 164, with Salerno, 481 U.S. at 750.
¶60 The government’s interest in ensuring the safety of the community would not be substantially burdened by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed condition. This requirement is consistent with both federal practices of detention and with restrictions on the right to bear arms in the federal system; due process requires that an arrestee’s liberty be restricted only after a determination that there is no other less drastic means that can reasonably assure his or her presence at trial or the safety of the community. Salerno, 481 U.S. at 750; see also 18 U.S.C. § 3146; cf. 18 U.S.C § 922(g)(8). Here, there was no *176such individual determination, and the likelihood for error is significant, as noted above. Empowering judges to perform an individualized factual determination of the defendant’s dangerousness would reduce the probability of error without burdening the government’s interest in public safety. If a defendant is as clearly dangerous as the majority supposes Jorgenson to be, see majority at 151 n.3, then a judge would not hesitate to impose a firearm restriction. Relying on the expertise of a judge familiar with the record would help carry out the statute’s purpose of removing firearms from dangerous defendants, while not burdening the constitutional rights of nondangerous defendants.
¶61 The majority identifies only two other states that prohibit pretrial releasees from possessing firearms. Majority at 162 n.7. Nearly every state is able to ensure the safety of the community by restricting the possession of firearms to those who have been convicted of a serious offense or felony or by requiring an individualized determination of dangerousness performed by the trial court following the initial indictment. See, e.g., Or. Rev. Stat. § 166.250; Idaho Code Ann. § 18-3316; Alaska Stat. § 11.61.200; N.Y. Penal Law § 265.01(4) (McKinney) (convicted felons cannot possess firearms); Ariz. Rev. Stat. Ann. § 13-3101(A)(7)(a), (b) (requiring an individualized finding of dangerousness for mental patients and prohibiting access to firearms for convicted felons). Nothing on the record shows that these states experience more crime by persons awaiting trial than do Hawaii and Ohio, the only two states besides Washington that impose categorical bans on possession.
¶62 In addition, no court has upheld a ban like ours after the decision of the Supreme Court in Heller, 554 U.S. 570. Not a single case cited by the majority supports a categorical ban on the possession of firearms by individuals pending trial in the absence of an individualized determination of dangerousness. Instead, the majority’s cases either uphold restrictions on possession after conviction of a crime— United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) *177(per curiam); United States v. Seay, 620 F.3d 919, 920 (8th Cir. 2010); Skoien, 614 F.3d at 645; United States v. Engstrum, 609 F. Supp. 2d 1227, 1228 (D. Utah 2009) — or uphold pretrial restrictions in which the defendant had an opportunity to be heard — Reese, 627 F.3d at 804; United States v. Emerson, 270 F.3d 203, 265 (5th Cir. 2001).19
¶63 The majority relies most heavily on Laurent, a case that explicitly limits its holding to the receipt, shipping, or transportation of firearms. 861 F. Supp. 2d at 107-08 (noting that the statute at issue “does not categorically prohibit an individual under indictment from retaining weapons already in his possession”). The majority’s reliance on these decisions is misplaced in that the majority fails to recognize that these decisions do not approve of pretrial restriction of the possession of firearms without an opportunity to be heard and a judicial determination that the restriction is necessary.
¶64 It is entirely appropriate to prohibit some individuals accused of a serious crime from possessing firearms. However, the categorical denial of due process when stripping individuals of their fundamental rights can never be valid. Salerno, 481 U.S. at 744;Arzberger, 592 F. Supp. 2d at 603. RCW 9.41.040(2)(a)(iv) does not allow for an individualized determination of dangerousness before depriving defendants of their liberties; we must find the statute facially unconstitutional.
*178CONCLUSION
¶65 The legislature may reasonably regulate the right to bear arms, consistent with the precedents of this court and of the United States Supreme Court. However, any such regulation must comport with due process. RCW 9.41.040(2)(a)(iv) impermissibly denies Jorgenson his fundamental right to bear arms without due process of law.
¶66 I cannot limit this analysis to an as-applied challenge to RCW 9.41.040(2)(a)(iv) because due process requires a judicial determination of dangerousness and an opportunity to be heard in every case. The statute is accordingly facially invalid. Nor can I remand for a determination of dangerousness without running afoul of double jeopardy. Jorgenson simply could not have been convicted under RCW 9.41.040 absent the unconstitutional provisions of 9.41.040(2)(a)(iv). Therefore, I would reverse the Cowlitz County Superior Court and remand for dismissal of Jorgenson’s convictions of unlawful possession of a firearm.
¶67 I respectfully dissent.
C. Johnson, J., and Chambers, J. Pro Tem., concur with Wiggins, J.The majority declines to engage with procedural due process because the parties did not brief the issue. Majority at 151 n.3. While Ray Jorgenson does not directly discuss procedural due process in his briefing before this court, he nevertheless relies on the fact that RCW 9.41.040(2)(a)(iv) does not require a finding of guilt or dangerousness. Opening Br. of Appellant at 16, State v. Jorgenson, No. 41828-2-II (Wash. Ct. App. Sept. 1,2011). This argument cannot be addressed without a procedural due process analysis. Furthermore, a scheme that categorically deprives people of fundamental rights is such a patently clear violation of procedural due process as to put a cloud of constitutional doubt over the statute. Therefore, rather than passing over the issue of procedural due process, the majority should at the very least call for supplemental briefing on the issue. See RAP 12.1(b) (“If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court”).
Due process challenges under the Washington Constitution do not require separate analysis from those under the federal constitution. Hardee v. Dep’t of Soc. & Health Sens., 172 Wn.2d 1, 7 n.7, 256 P.3d 339 (2011).
18 U.S.C. § 3142(c)(1)(B) provides, “[I]n any case that involves a minor victim under section . . . 2252(a)(2) ... of this title, . . . any release order shall contain, at a minimum, a condition of electronic monitoring and . . . the condition! ] specified at subparagraph! ]... (viii) [that the defendant ‘refrain from possessing a firearm, destructive device, or other dangerous weapon’]. . . .”
Of these cases, the only one that analyzes the firearm provision — Arzberger— finds it unconstitutional. 592 F. Supp. 2d at 602-03.
Serious crimes under the Adam Walsh Amendments include kidnapping, sex trafficking, aggravated sexual abuse, sexual abuse, abusive sexual contact, murder, sexual exploitation of children, selling or buying of children, child pornography, coercion or entitlement, or failure to register as a sexual offender. 18 U.S.C. § 3142(c)(1)(B).
While the Ninth Circuit of the Court of Appeals has declined to find the Adam Walsh Amendments unconstitutional, United States v. Peeples, 630 F.3d 1136 (9th Cir. 2010), its reasoning is distinguishable from the facts here. Relying on the principle that statutes should be read to avoid serious constitutional issues, the Ninth Circuit focused on provisions of the statute that enabled judges to utilize discretion, such as in the imposition of a curfew and the location and times of mandatory electronic monitoring. Id. at 1138-39. Ignoring the automatic restrictions on the possession of firearms, the court read the statute as allowing for judicial discretion. RCW 9.41.040(2)(a)(iv) has no such plausibly discretionary provisions.
It should be noted that under our case law, even defendants who are convicted of a crime retain a procedural due process interest in release on parole. See In re Pers. Restraint of Lain, 177 Wn.2d 1,14-18,296 P.3d 872 (2013). A person who has not even been convicted is still presumed innocent and should receive at least the same level of due process protection where fundamental rights are concerned. In other words, if a convicted person has a due process interest in liberty, then a person who is merely accused has a still greater due process interest in liberty. And if a person has a due process interest in liberty, then he or she also has a due process interest in possessing firearms because all fundamental rights are considered on the same footing. See Heller, 554 U.S. at 634; Glucksberg, 521 U.S. at 719-20.
The majority notes that the nature of the particular crime of which Jorgenson is accused — assault in the first degree with a firearm — creates a nexus between the accusation and potential future dangerousness. It should go without saying that the assault charge does not divest Jorgenson of the presumption of innocence. Nor does the assault charge establish that the automatic removal of Jorgenson’s firearm rights is necessary to advance the State’s interest in safety. As we discuss below, if Jorgenson was clearly dangerous, then the trial judge could have imposed (and presumably would have imposed) a firearm condition when he was given the opportunity.
The majority also points to a case barring undocumented aliens from possessing firearms, United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir. 2012), and a statute barring persons who have renounced their United States citizenship from possessing firearms, 18 U.S.C. § 922(g)(7). This law is not relevant because Jorgenson is a United States citizen who had not, at the time of his arrest, been convicted of any crime. And even if Huitron-Guizar were on point, that case did not perform any due process analysis. Rather, it relied solely on the Second Amendment and the equal protection clause. Huitron-Guizar, 678 F.3d at 1165-71.
Finally, the majority points to a statute that forbids persons dishonorably discharged from the military from possessing firearms. 18 U.S.C. § 922(g)(6). That statute is not helpful because a service member must be adjudicated guilty by a court-martial in order to be dishonorably discharged. Rather than supporting the majority’s position, 18 U.S.C. § 922(g)(6) shows that an individualized finding of guilt is necessary before firearm rights can be taken away.