As the topic of so-called Red Flag laws have been in the news and topics of discussion over the last couple years I thought I'd share this piece. I support the concept of Red Flag laws but only when crafted with appropriate due process protections for the respondent, the one suffering the "injury" or loss of rights and possessions.

The problem with the Red Flag laws that I'm familiar with is that the legislators who crafted these bills went out of their way to minimize due process for the respondent and make it so difficult for them to regain their rights or guns.

When the federal and state governments, to say nothing of county and city governments, and their respective legislators, have a proven track record of passing laws that not only exceed their authority but fail to afford protections guaranteed under the Constitution, it's difficult to trust them to properly craft Red Flag laws.

When our Democrat controlled General Assembly rammed through a Red Flag law they did so with almost no bipartisan support, and did so while failing to adequately offer due process protections to the respondent.


The Right Way to Craft Red-Flag Laws

Sep 27th, 2019 3 min read

Amy Swearer
Senior Legal Policy Analyst

Amy is a senior legal policy analyst in the Meese Center for Legal and Judicial Studies.

KEY TAKEAWAYS

1 An unfortunately reality is that almost all mass public shooters were able to legally purchase their firearms despite very clear indications of dangerousness.

2 Red-flag laws should be temporary in nature.

3 Americans should be in favor of red-flag laws but only if we can properly craft them.


Recent polls show that most Americans support the basic premise of disarming dangerous people through the use of so-called "red-flag laws." This instinct is a sound one, but Americans should not overlook the very real hazards of poorly crafted red-flag laws, which can easily turn the Constitution on its head.

To be sure, the general idea behind red-flag laws is good to better identify objectively dangerous individuals and allow court-ordered, narrow interventions to disarm these specific individuals before they can commit violent acts.

The rightful cry of Second Amendment advocates has long been that laws should keep guns out of the hands of criminals or those who are bent on violence, and refrain from broadly punishing law-abiding Americans who do not pose a risk to themselves or others.

Red-flag laws, as a concept, are an effort to accomplish just that goal.

An unfortunately reality is that almost all mass public shooters were able to legally purchase their firearms despite very clear indications of dangerousness.

In some cases, official actions could have and should have been taken under existing laws to disarm these individuals, but the vast majority simply had not committed a disqualifying criminal offense or reached the threshold of mental instability necessary for an involuntary civil commitment.

Red-flag laws, then, can provide a type of "gap filler" option to disarm people who are clearly dangers to themselves or to the public, but who would otherwise be permitted to possess firearms because they aren't in a mental health crisis or haven't already committed an atrocity.

The danger of red-flag laws is not in the idea itself, but in the way many states have implemented laws that neglect any meaningful sense of due process and that fail to provide necessary safeguards against abuse or misuse. We must ensure not just that dangerous people are disarmed, but that they are disarmed through a fair process that prevents non-dangerous individuals from inadvertently losing their Second Amendment rights, as well.

One of the primary and, frankly, legitimate concerns is that these laws function to make "best guesses" as to who will commit violent actions in the future.

On the one hand, many other widely-accepted laws, such as restraining orders and prohibitions on firearm possession for those adjudicated mentally ill, are based on assessments that a particular person will likely pose a danger.

On the other hand, this is not "Minority Report," and we don't have a Pre-Crime Division with psychic powers.

Because of this, we must demand that red-flag laws use narrow definitions of "dangerousness" that focus on patterns of objectively dangerous behaviors. In particular, laws that paint gun ownership as inherently suspect such as by allowing judges to consider the recent purchase of a firearm as a factor indicating "dangerousness" should be rejected. So should any broad criteria that would result in disarmament because of disfavored, vulgar or politically incorrect speech.

Moreover, because these laws involve restrictions on a fundamental constitutional right, they should require that allegations of dangerousness meet high burdens of proof, such as clear and convincing evidence. Other types of traditional due-process protections, such as the right to an attorney and to cross-examine witnesses, should be afforded as well.

Red-flag laws should be temporary in nature, and should give those who have their firearms seized a clear avenue of having those constitutional rights and the firearms themselves returned. This means that the persons affected should know both what it is they must do to show they are no longer dangerous, and that they know the procedures they must follow to have their property returned.

Finally, these laws should not disarm people for the sake of disarmament alone. They should ultimately be about getting dangerous individuals back to a place of mental and emotional stability, where their firearms can be returned and their right to keep and bear arms fully restored. For that reason, red-flag laws should be integrated with existing mental health treatment and addiction systems, and resources provided to those who have been deemed dangerous.

Unfortunately, many states that have implemented red-flag laws have neglected to provide these types of basic protections. While we should all be in favor of using a legal process to temporarily disarm dangerous people, we must refuse to do so at the expense of due process and appropriate constitutional safeguards.

In other words, Americans should be in favor of red-flag laws but only if we can properly craft them.

This piece originally in Chicago Tribune.

quote:

Red-flag laws, then, can provide a type of "gap filler" option to disarm people who are clearly dangers to themselves or to the public, but who would otherwise be permitted to possess firearms because they aren't in a mental health crisis or haven't already committed an atrocity.

Wrong.

Appreciate the notion of trying to address the problem, but red flag laws cannot be implemented without the abrogation of Constitutional rights.

I don't have the answer since they eliminated sanitariums. But red flag laws are a knee jerk reaction to the problem, which in itself is small compared to other instruments of killing.

Red flag laws are crafted to be able to disarm people that the government doesn't like.

They allow hearsay. Are about 'feels'.

A protection order typically requires the person requesting it swear to the articulated threat(s) they are alleging - and the target of the order isn't physically disarmed. It may be a condition of the order, but no one is showing up to enforce it. As long as the target doesn't act an ass, the order expires. The initiator can request it be renewed, but the bar tends to be higher when the subject of the order hasn't done anything to prompt a renewal of it.

It's already bad enough if you have a protective order issued against you.

But a red flag has every firearm and bullet removed. And catalogued. And stored under less than ideal conditions. And major hoops to ever get them back. Mandates you go to classes, therapy...and you have zero opportunity but to comply. You have the scarlet letter. Explain that to your employer or prospective employer.

Welcome to a slightly more polite SWATTING.

The Red Flag IMO is a measure introduce by the democrats because they want trump impeach and to ensure it doesn't spark a civil war. disarming people and enslaving them is all this is about, they don't care about equality or freedom.

https://www.king5.com/mobile/a...8d-80d6-78f877977340

The government targeted this man not due to threats, but due to his politics. Red flag laws are for this purpose. I don’t agree with the mans beliefs, but everyone on this forum is a Nazi in the lefts eyes, and will be targeted.

I do not believe it is possible to craft a Red Flag Law that would be effective AND constitutional--the inclusion of proper due process guarantees would make them unworkable. (And unable to accomplish what the Leftists want to do.)

flashguy

There is no "right" way to craft such laws. They are designed to the subvert and ultimately destroy the inherent rights to liberty and property.

The following words were written about the Wisconsin Constitution in 1923 when people had a much deeper understanding of liberty:

"By the preamble of our Constitution preservation of liberty is given precedence over the establishment of Government. It would be inconceivable that the people of Wisconsin, in establishing a Government to secure the rights of life, liberty, and the pursuit of happiness, should by general grant of the legislative power, have intended to confer upon that Government authority to wholly subvert those primary rights."

Marquette Law Review - 1923

Similar words and concepts are found other state Constitutions as well as the federal Constitution.

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Red Flag laws are nothing more than The Adjustment Bureau. Punishing somebody for a crime they might commit someday. Ridiculous IMO.