Red Flag Gun Laws: Just Say NO

Updated: Jan 30, 2020

Red flag guns laws violate not one, but two, and potentially more Constitutional rights.

In the wake of recent tragic shootings, Red flag gun confiscation has come to the forefront of public news once again. These laws allow for firearms to be seized from individuals who have committed no crime, but are believed to be a danger to themselves or others. Currently, 17 States and D.C. have some form of this law. This type of legislation is being discussed here in Michigan and at the Federal level as well.

These laws lack a basic understanding of public policy. By definition, criminals don’t follow the law, so these efforts will have zero effect on them.

So who will they affect? Law abiding citizens. If we look at the mass shootings in recent past, all of these could’ve been avoided or at least diminished had a law abiding gun owner been allowed to carry. And who ends up ultimately putting an end to these shootings? A good guy with a gun, whether that be law enforcement or an armed citizen. Therefore, if we wanted to curtail these shootings, by logic we’d have MORE armed citizenry. At the end of the day, one fact remains clear - the most dangerous places in the nation are gun free zones.

Red flag gun confiscation raises several Constitutional issues as well, some of which will be addressed in this piece.

Second Amendment

The right to keep and bear arms SHALL NOT BE INFRINGED. We have a natural right to protect ourselves, that pre-exists any government. The Constitution codifies this as an essential American right. Gun confiscation is a clear violation of our natural right to self-defense and the Second Amendment.

Due Process

The Fifth & Fourteenth Amendments to the Constitution mandates that no one shall be deprived of “life, liberty, or property without due process of law.” Taking property from individuals who have committed no crime clearly violates Due Process. Gun control advocates claim due process is not violated because people can appeal to reclaim their property. However, this is completely backwards thinking. It takes away a person's innocence until proven guilty, by having to prove they meet whatever criteria is required to receive their gun back.

Due process is violated in other ways as well. The Sixth Amendment lists the rights of the accused, the due process procedure entitled to all citizens, in “all criminal prosecutions.” While red flag laws are not criminal prosecutions, they have the same effect. They accuse and administer punishment.

All of the following rights of the accused under the Sixth Amendment:

- informed of the nature and cause of the accusation

- confronted with the witnesses against the defendant

- compulsory process for obtaining witnesses in the defendant’s favor

- the assistance of counsel for defense

- Impartial jury

None of the above are afforded to one who has a firearm taken as a result of a red flag gun law. Keep in mind, all of these Sixth Amendment Protections are denied BEFORE a crime has even been committed.

First Amendment

While Red flag confiscation clearly violates the Second Amendment and Right to Due Process, there are certain instances where First Amendment rights can be violated as well.

Imagine posting a controversial Facebook post. Next thing you know law enforcement is at your door confiscating your firearms as part of a “red flag” that arose out of something you posted on social media. Disagreeable speech is labeled “hate” speech and hate speech can be considered “violent” speech which could trigger a red flag confiscation. Liberties die when rights to free speech, press, and religion end.

Far More than Just the “Mentally Ill” are Flagged

The American Civil Liberties Union of Rhode Island explained in a 14 page analysis that few people understand just how expansive the state’s red flag law is.

“It is worth emphasizing that while a seeming urgent need for [the law] derives from recent egregious and deadly mass shootings, [the law’s] reach goes far beyond any efforts to address such extraordinary incidents,” the authors said. “As written, a person could be subject to an extreme risk protective order (ERPO) without ever having committed, or even having threatened to commit, an act of violence with a firearm.”

For those who have seen the Minority Report, the 2002 film starring Tom Cruise, red flag gun laws look a lot like pre-crime policing. The evidence is clear that red flag gun laws make us less safe, are too expansive, and violate our Constitutional rights. When it comes to protecting yourself, stand with me, and just say NO to red flag gun laws.

Daren Wiseley

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